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Counselor Case Study: Failure to implement a safety plan for a client designated as a “danger to self/others” with access to firearms in the home

Medical malpractice claims may be asserted against any healthcare provider, including counselors. This medical malpractice case study with risk management strategies, presented by HPSO and CNA, involves a licensed professional clinical counselor (LPCC) with a Master’s degree in community counseling and ten years of counseling experience, who is a business owner in private practice. 


The client in this case was a 35-year-old married female, with two minor children, who had a longstanding history of depression and a substance use disorder. The client had participated in an inpatient treatment program for substance use in the past. However, she continued to struggle with the disorder. The client’s psychiatric medication regimen consisted of Vraylar, Ativan, Pristiq and Neurontin. Although previously employed as a financial analyst, the client was on a disability leave due to depression at the time of the incident.

In April, the client began treatment with a new psychiatrist for depression, lack of motivation and hopelessness. On the new client questionnaire, she indicated she had “thoughts of hurting myself in the past.”  Shortly after the initial psychiatric evaluation, the client’s husband contacted the treating psychiatrist to report new symptoms of paranoia, labile and bizarre behavior, an increase in alcohol consumption and a concern that the client had guns in the home. He also advised that his wife had stated that she was contemplating filing for divorce. The psychiatrist overheard the client yelling at her husband during this phone call, including a threat to divorce him.

The psychiatrist recommended that the client be seen in the emergency department and explained the process for an involuntary commitment. The client’s husband did not follow through on the psychiatrist’s recommendation. When the psychiatrist followed-up with the client by phone the following day, the client denied the behaviors/symptoms and reported no suicidal ideation.

During this timeframe, there were ongoing medication adjustments including replacing Pristiq with Viibryd. Despite compliance with the medication regimen, the client continued to experience exacerbations of moderate to severe depression. In May, the psychiatrist documented that the client was considered to be refractory to medication treatments for depression, prompting the initiation of transcranial magnetic stimulation (TMS) treatment. All psychiatry notes reflected an absence of suicidality. In June, TMS treatment began. However, the client reported minimal improvement. The client was referred to counseling and initiated treatment with the insured LPCC.

An initial evaluation was conducted by the LPCC in which the client reported symptoms of anxiety, depression, and a history of addiction to pain medication. The LPCC documented the client’s statement, “I will never get better,” but indicated that the client denied suicidal thoughts. The question on the counseling assessment form referencing “danger to self or others” was left blank. Plans were made for return visits at two-week intervals.

One week after the initial counseling visit, the client presented for a psychiatry follow-up appointment complaining of continued symptoms of depression, hopelessness, and anxiety. The psychiatrist advised the client to continue Viibryd and TMS treatments and prescribed a new medication order for Lithium. At the next counseling session with the LPCC, the client reported that the TMS treatments and medication adjustments were not effective. During this session, The LPCC utilized cognitive behavioral therapy techniques and documented that the client posed “no danger to self or others.”

Counseling sessions continued at two-week intervals with no significant changes or improvements. At the end of August (the sixth counseling session), the client reported worsening depression, overwhelming sadness and suicidal thoughts without a plan or intent. The LPCC documented that the client was “a danger to self/others” and advised the client to remove the guns from the home. The client insisted that this was not necessary. However, six days after this visit, the client died by suicide due to a self-inflicted gunshot wound. A toxicology report revealed high levels of alcohol, diazepam, and hydrocodone.

Shortly after the client’s death, the estate (plaintiff) filed a lawsuit on behalf of the husband and minor children against the insured LPCC, the insured’s private practice (co-defendant) and the treating psychiatrist (co-defendant). The plaintiff asserted that the LPCC was on notice that the client was a suicide risk and had access to guns at home but failed to institute a comprehensive safety plan. The plaintiff further asserted that the LPCC and co-defendant psychiatrist failed to request the client’s consent to communicate with one another, which could have helped them take appropriate action to limit the client’s access to firearms. 

Risk Management Comments

During the last counseling session, the client reported worsening depression and expressed contemplation of suicide but denied having a specific plan or intent. Defense experts in professional clinical counseling opined that the LPCC’s note indicating “danger to self or others,” including the client’s access to firearms required an updated suicide risk assessment and completion of a formal, collaborative safety plan. The documentation was viewed as a weakness to the defense of this case, as it created a gap between the implied risk and the LPCC’s treatment plan. The plaintiff’s expert testified that the documentation of “danger to self/others” inferred that there was a serious concern for the client’s safety that was not addressed.

Defense experts also expressed criticism that the LPCC did not utilize standardized suicide risk assessment and safety planning tools to document a comprehensive assessment and treatment plan. As part of the safety planning process, experts noted that they would have expected documentation of the client’s agreement with the plan and an affirmation that it would be utilized in the event of a crisis situation. Defense experts also opined that the LPCC should have seen the client more frequently than every two weeks and should have obtained the client’s consent to collaborate with the treating psychiatrist due to the diagnosis of “severe depressive disorder.”


This case had the potential for high exposure based upon the decedent’s lost wages, as well as the potential for sympathy factors influencing a jury decision. Integral to the defense’s resolution plan for this case was the evaluation of whether the plaintiff’s expert testimony would convince a jury that the insured LPCC’s actions in the last counseling session represented a breach of the standard of care. Based upon the above-referenced defense challenges, a decision was made to settle the case in mediation. During mediation, the plaintiff’s case was focused on the fact that no attempts were made to ensure that the client’s guns were inaccessible, and the lack of a detailed safety plan commensurate with the client’s assessed risk of suicide.

Mediation resulted in a settlement. The total incurred amount for the professional liability claim against the insured counselor and the private practice was greater than $500,000.

(Monetary amounts represent the payments made on behalf of the LPCC and the counseling practice. The settlement amount for the co-defendant psychiatrist is not available.)

Risk Control Recommendations

  • Develop a standardized practice for documentation in the healthcare information record to include references to the treatment plan and client progress towards goals, location of service, whether the session was conducted in person or via telehealth, 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.
  • Obtain client consent to contact and collaborate with other mental health professionals involved in their 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.
  • Work collaboratively with clients who are at risk for suicide to limit access to lethal means, as described in the National Action Alliance for Suicide Prevention’s “Lethal Means & Suicide Prevention: A guide for Community & Industry Leaders.
  • Practice within the counselor’s state-specific duty to protect/warn legislation, and in compliance with standard of care and state licensing/certifying board requirements. If more than one standard of care, law or regulation is implicated, the counselor should adhere to the most stringent applicable standard.
  • Inform clients about situations in which confidentiality protections may not apply, such as when foreseeable harm to self/others is noted.  Document these discussions and obtain signed statements that the client understands these exceptions to privacy and confidentiality protections.
  • Develop and institute a written policy outlining the process for release of confidential information according to the 2014 ACA Code of Ethics , as well as state and federal reporting requirements. 

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. 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.

This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, HPSO websites are provided solely for convenience, and Aon, AIS, NSO and HPSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., HPSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.

Healthcare Providers Service Organization is a registered trade name of Affinity Insurance Services, Inc., a licensed producer in all states (TX 13695); (AR 100106022); in CA, MN, AIS Affinity Insurance Agency, Inc. (CA 0795465); in OK, AIS Affinity Insurance Services, Inc.; in CA, Aon Affinity Insurance Services, Inc., (CA 0G94493), Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY, AIS Affinity Insurance Agency.