Summary
The client in this case was a 30-year-old female with a history of bipolar depression and a substance use disorder. She was under the care of a psychiatrist and had a recent hospital admission for treatment of a manic episode and psychosis. Upon discharge, the client was referred to counseling and instructed to follow up with her psychiatrist. The hospital discharge summary noted that the client had been non-adherent with the prescribed antipsychotic medication regimen.
Three weeks following discharge, the client contacted the insured counseling firm to make an appointment. The client was assigned to a new intern, as the firm was short-staffed and there were no licensed counselors available. In these instances, the administrative assistant who managed the scheduling was authorized to assign new clients to an intern. Two weeks later, the initial assessment was conducted by the intern and the intern’s supervising LPCC (the defendant) who diagnosed the client with “unspecified schizophrenia spectrum and other psychotic disorder.” During the initial assessment, the client stated that she had suicidal thoughts in the past, but denied having a plan, means or intent at that time. The client also denied having any recent suicidal ideation. She reported that she was under the care of a psychiatrist, but failed to inform the LPCC that she had a recent hospital admission. During the assessment process, the LPCC also failed to inquire about hospitalizations. A consent form was signed by the client permitting the LPCC to request the healthcare information record from the treating psychiatrist. A record request was sent to the psychiatry office. However, due to an administrative error, the records were not received by the counseling firm, and neither the intern nor the LPCC followed up to ensure receipt of the records.
Two days following the initial assessment, the client initiated counseling with the intern and participated in weekly counseling sessions over the course of a two-month period. During these sessions, the intern utilized techniques such as rapport building and active listening and incorporated the client’s passion for music into the counseling techniques. These techniques enabled the client to communicate her emotions through the use of lyrics. Approximately two weeks after the initial counseling session, the supervising LPCC reviewed the intern’s progress notes and identified that the intern was not performing suicide risk assessments at each session. The LPCC communicated this observation to the intern in an email advising that a suicide risk assessment should be performed at each session based upon the client’s history of bipolar depression. The LPCC also communicated detailed instructions about how to assess suicidality. Based upon the feedback received from the supervising LPCC, the intern conducted suicide risk assessments at each future counseling session and noted that the client denied suicidal ideation. Although the standard of care required that supervisors meet regularly with supervisees to monitor their work, the LPCC conducted all supervisory communications with the intern via email and there were no regularly scheduled supervisory meetings. The firm owner did not establish or implement formal policies delineating supervisory requirements and also did not institute a process for handling client emergency situations, including instructing clients to call 911.
The day before the tenth counseling appointment, the intern received several texts and voicemails from the client containing pressured speech with erratic and disorganized thought patterns in a lyrical format. The intern was concerned about the change in tone of the client’s communications and shared the texts and voicemails with the supervising LPCC. The LPCC advised the intern that she could address these communications at the next scheduled appointment and that no immediate action was necessary. Based upon this advice, the intern told the client that they would discuss any new issues at their upcoming counseling appointment in two days. (Notably, the intern later testified that she was not aware of the association between pressured speech patterns and manic episodes.)
Later that evening, the intern received an email from the client’s boyfriend stating that the client was exhibiting “manic” behavior and that he was concerned for her safety. The client’s boyfriend also noted that he did not believe that the client knew whom to contact in an emergency and that he had to search through the client’s computer to find the intern’s email address. Shortly after reading this email, the intern was notified by the client’s family that the client had died by suicide earlier that evening.
Risk Management Comments
Several months after the client’s death, the client’s parents (plaintiffs) filed a wrongful death lawsuit asserting that the intern, supervising LPCC and the firm owner, collectively, failed to provide appropriate treatment for the client’s behavioral health condition. The treating psychiatrist also was a named defendant in the lawsuit for failing to ensure that the client adhered to the medication regimen. The plaintiffs further asserted that the counseling firm owner was negligent in failing to implement policies governing intern supervision.
It is important to note that counseling firm owners who employ or contract with counselors, interns, students, social workers and others, are subject to professional liability exposure based upon the inherent duties related to ownership. Firm owners have exposures related to hiring, screening, and supervision of staff, contractors, and students/interns, policy management, as well as vicarious liability for the firm itself -- the exposure that an agency bears for the negligent actions of employees and contractors. In addition, a counseling supervisor may be exposed to professional liability risk if supervisees are not appropriately monitored. In Section F.1.a., Supervision, Training and Teaching, the
2014 ACA Code of Ethics, describes the responsibilities of counselors who are in a supervisory role. The expectation is that supervisors will be engaged in the oversight process, conduct ongoing meetings and ensure that supervisees follow the ACA Code of Ethics.
The plaintiffs’ counseling experts were critical of the firm for failing to create and implement policies related to intern supervision as well as a formalized process regarding after-hours client emergencies. Based upon the client’s clinical condition, the experts believed that a licensed counselor should have been assigned to this client, rather than an intern or alternatively, that the supervising LPCC should have provided closer supervision of the intern with more stringent monitoring of the client’s condition. The plaintiffs’ experts further testified that that there should have been an immediate client intervention when the intern reported the client’s change in condition to the LPCC.
Defense experts opined that that the client did not exhibit suicidal ideation in the counseling sessions preceding the suicide. However, they were critical of the intern and LPCC supervisor for failing to obtain the client’s psychiatric medical records expeditiously or initiate a collaborative relationship with the psychiatrist, which may have resulted in closer supervision and clinical follow-up regarding antipsychotic medications. In retrospect, the firm owner and supervising LPCC admitted that if they had known about the client’s recent psychiatric hospital admission, the client would have been assigned to a licensed counselor. The supervising LPCC was re-educated by the firm owner regarding the requirements for appropriate supervision.
Resolution
This case had the potential for a high jury verdict, given the decedent’s age and the sympathy factor potentially influencing a jury’s decision. Integral to the resolution plan of the defense team was the evaluation of the witnesses’ credibility and the likelihood that the jury would believe the plaintiffs’ testimony. The parents’ deposition testimony was compelling and sympathetic, and the defense team considered whether a jury would view the client’s suicide risk as improperly assessed.
Jurors’ opinions regarding whether the standard of care was fulfilled is based upon many factors, including the credibility of the witnesses and the expert’s deposition testimony, as well as the documentation in the healthcare information record. In this case, the intern’s documentation was lacking details to support her testimony that the client was stable and denied suicidal ideation, and the supervising LPCC’s documentation was limited. The absence of regularly scheduled supervisory meetings between the intern and the supervising LPCC further compromised the defense.
Based upon the above-referenced defense challenges and diminished potential for a successful defense verdict, a settlement was negotiated in mediation on behalf of the insured firm, firm owner and employed LPCC.
Total Incurred: More than $200,000.
(Note: Figures represent the payments made on behalf of the insured firm, firm owner and employed LPCC and do not include any payments that may have been made from co-defendants.)
Risk Management Recommendations for Counseling Firm Owners
- Develop and implement policies regarding role delineation for counseling interns, site supervisors and program supervisors in order to ensure appropriate field placement, client assignment and overall supervision. Section F.7.i of the ACA Code of Ethics (2014) provides guidance related to the roles and responsibilities of supervisors.
- Provide monitoring and training for supervising counselors to ensure that they are up-to-date and qualified in appropriate supervision methods and techniques. See Section F.2.a., Supervisor Preparation, of the ACA Code of Ethics.
Risk Management Recommendations for Supervising Counselors
- Conduct ongoing and regular evaluations of supervisees regarding performance, and identify when additional supervision is necessary based upon the client diagnosis. As stated in Section F.6.a. of the ACA Code of Ethics (2014), supervisors should document ongoing feedback and conduct formal evaluative sessions throughout the supervisory relationship.
- Re-assess the level of supervision required to ensure client welfare when there is a change in the client’s condition.
Risk Management Recommendations for All Counselors
- Develop a standardized practice for documenting in the healthcare information record to include references to the treatment plan and client progress towards goals, location of service, a mental status exam and a safety plan, if the session’s note reflects a documented risk. For clients who are identified as a suicide risk, ensure that the documented treatment plan aligns with the risk assessment findings.
- Collaborate with other mental health professionals involved in the client’s treatment to ensure that all members of the healthcare team are aware of any significant changes in the client’s condition.
- Utilize an evidence-based suicide risk assessment tool and consider co-occurring issues that may increase the client’s level of suicide risk, such as depression, substance use disorders and access to firearms.
- Ask questions regarding suicidal ideation openly, and ensure that the counseling plan aligns with the risk assessment findings.
- Utilize safety planning templates collaboratively with clients to identify their individualized warning signs that a crisis may develop, protective factors and coping strategies—creating the safety plan in the same session in which suicidal ideation is identified.
- Include a discussion about the potential for impaired judgment and altered cognition in a crisis, as part of the safety planning process.
References and Additional Resources
Disclaimers
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. This material is for illustrative purposes and is not intended to constitute a contract. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.