Counselor and Medical Malpractice:
Case Study with Risk Management Strategies
Presented by HPSO and CNA
|Case Study: Failure to follow the standard of care; failure to maintain clinical competencies; failure to protect a client’s private and confidential information|
Medical malpractice claims may be asserted against any healthcare practitioner, including counselors. This case study involves a licensed professional counselor.
Indemnity Settlement Payment: $0
(Monetary amounts represent only the payment made on behalf of the insured counselor)
Legal Expenses: In excess of $10,000
This claim involved a child custody dispute between a divorced couple, based upon allegations by the father that his daughter had been sexually abused by a relative of the child’s mother.
Upon divorcing, the mother was given primary physical custody of the child.
Three years later, for the courts, the defendant licensed professional counselor was appointed to assess the child, make a report of her findings and recommendations, and give a deposition.
Shortly after the deposition, the mother filed a motion requesting the counselor be disqualified from serving as the court-appointed expert. The mother alleged that the counselor did not have expertise in the assessment of allegations pertaining to child sex abuse. The court entered an order that counseling by the defendant was to continue.
Shortly after, the court found that it would be in the best interest of the child for the primary residence to be with the father, subject to visitation by the mother.
Later that year, the mother filed a complaint against the counselor with the LPC Board. No action against the counselor’s license resulted from that complaint.
Related to the allegations of abuse, the child was examined by a physician, an investigator from the Department of Human Services and a separate counselor retained by the mother. The physician concluded it was very likely the child had been sexually abused.
As a result of this diagnosis, a criminal investigation of the relative was initiated.
Because of the number of experts who examined the child before, the counselor could not determine whether the child had been abused, or who the perpetrator might be. The court determined that the mother’s argument was without merit and that the counselor was qualified to testify as an expert.
Several years later and after several failed attempts by the mother to regain custody of the child, there was a final hearing, resulting in the father being granted primary custody. In addition, the court ordered that all future visits by the mother be directed by the counselor.
The mother then filed a lawsuit against the counselor, alleging negligence and contending that the counselor had overstepped the boundaries set by the court in making her recommendations.
The mother also alleged the counselor’s unqualified testimony had resulted in custodial loss of her child.
Risk Management Comments
Client record and deposition requests often present a range of legal and ethical challenges. Failure to respond to a legal subpoena could result in the imposition of sanctions, including issuance of a warrant from the court for the counselor’s arrest. Yet, provision of records to individuals or even courts that violate confidentiality and privacy laws can leave counselors in challenging situations requiring immediate legal assistance to protect their clients and themselves.
Nearly a year later, and approximately seven years from the time of the initial deposition, counsel succeeded in having the claim dismissed.
Risk Management Recommendations
- Counselors must take seriously their responsibility to protect their clients’ private and confidential information.
- Discuss privacy issues at the outset of counseling and periodically thereafter and clearly document these discussions in the client’s clinical record, including the client’s acknowledgment and signature when possible.
- Counselors must obtain client authorization prior to releasing confidential and private information, where federal and state laws and regulations permit such release pursuant to client authorization.
- In addition, the counselor must understand and recognize situations that may require disclosure of sensitive client information, g., when a client appears to present a danger to self or others, or when there is evidence of child abuse/neglect.
- Consult an attorney conversant with applicable guidelines, including the required content of the authorization. In some jurisdictions, counselors may be responsible for informing clients of possible situations where confidential information may be released without client authorization.
- Be cognizant of and comply with evolving and expanding state and federal confidentiality and privacy laws and regulations.
Guide to Sample Risk Management Plan
Risk Management is an integral part of a healthcare professional’s standard business practice. Risk Management activities include identifying and evaluating risks, followed by implementing the most advantageous methods of reducing or eliminating these risks – a good Risk Management Plan will help you perform these steps quickly and easily!
Visit www.hpso.com/risktemplate to access the Risk Management Plan created by HPSO and CNA. We encourage you to use this as a guide to develop your own Risk Management Plan to meet the specific needs of your healthcare practice.