A federal judge has determined a military veteran’s lawsuit can proceed against both the U.S. government and a federal psychiatrist on the accusations the she engaged in an improper romantic and sexual relationship with the veteran.
U.S. District Judge Gershwin Drain ruled last week that Veterans Administration psychiatrist Dr. Jennifer Robinson can be sued personally by Marine veteran Trey Cholewa on his claims she initiated an intimate relationship with him while Cholewa was being treated in 2017 for brain injury and PTSD from his combat action in the Middle East. Also, the federal government can be sued for alleged non-sexual misconduct related to the alleged abuse, according to the ruling.
The ruling in a 37-page opinion was in response to Robinson seeking full government immunity.
The lawsuit was filed in 2019.
It means Robinson cannot be protected by immunity because the alleged sexual and romantic instances occurred outside the scope of her employment, and that the government can remain a defendant because she allegedly took related actions that were within her scope of employment.
A spokesperson for Ven Johnson Law, which is representing Cholewa, in an email to The Macomb Daily calls the ruling a “major win for Cholewa and for veterans nationwide who’ve faced abuse from those entrusted with their care.”
“It also is a major step forward in the fight against blanket governmental immunity, because it means that those in positions of authority will be held accountable for their actions, regardless of title or employer,” says the spokesperson for the Detroit-based firm.
In his ruling, Drain determined “as a matter of fact” that Robinson engaged in romantic and sexual acts with Cholewa despite some inconsistencies in his statements.
“Regardless of the inconsistencies, the Court concludes that Plaintiff’s testimony is credible in part and not credible in part,” the judge wrote. “Plaintiff has changed the details of the sexual contact in several ways throughout the litigation, and there are reasons to question Plaintiff’s memory and reliability. … Plaintiff struggled to remember the dates that sexual contact did or did not occur.”
However, he notes a key piece and only direct evidence in the case is an audio recording Cholewa made during one of his many visits to Robinson at the John D. Dingell VA Medical Center in Detroit during which Robinson does not refute Chelow’s references to prior sexual contact.
“Certain allegations by Plaintiff have remained consistent throughout the litigation,” the judge goes on to say. “Plaintiff has proven his testimony to be reliable in part, because the audio recording supports his allegations that Dr. Robinson professed her romantic feelings for him, and at the very least kissed and massaged him. Moreover, Plaintiff’s general allegation that sexual touching occurred at some point is supported by the audio recording and other circumstantial evidence.”
Also in Cholewa’s favor is that Robinson declined to give sworn testimony by invoking her Fifth Amendment due to potential self-incrimination, according to the opinion.
Cholewa’s trio of claims against Dr. Robinson include medical malpractice, ordinary negligence and medical battery.
The judge says the government can be held responsible for numerous allegations over the claim that “Robinson’s failure to do certain non-romantic and non-sexual acts that were a necessary part of her job as a psychiatrist.” Robinson may have failed to:
* “refrain from exploiting the power differential she enjoyed over Plaintiff by virtue of his reliance on her stated goal of assisting him;
* discontinue the professional and therapeutic physician-patient relationship immediately upon feeling the impulse to act upon her feelings of emotional connection, physical attraction, or both;
* refer Plaintiff to an alternative psychiatrist immediately upon her feeling the impulse to act upon her feelings of emotional connection, physical attraction, or both.”
Cholewa says the encounters contributed to his divorce from his wife, though they reconciled.
Robinson began treating Cholewa in October 2015 at the VA in Detroit after he was medically discharged due to PTSD and chronic pain. He alleges Robinson initiated sexual activities with him in March 2017, following months of progressively provocative remarks. Cholewa says there were 10 to 20 encounters over five months ending in August 2017, although he reduced the number of incidents and time frame in another statement, according to the opinion. Cholewa stopped treatment and in June 2018 began treatment with another psychologist, to whom he revealed the encounters with Robinson, according to the lawsuit.
Cholewa served five deployments in the Middle East, three of which he served in active combat and suffered a head injury. In 2015, Cholewa was medically discharged with a 100% disability rating for both physical and mental trauma, and returned home to his wife and children in Macomb County.
In January 2024, Drain denied the government and Robinson’s attempt to dismiss the case.
No new court dates have been scheduled, according to online records.
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