Medical malpractice claims may be asserted against any healthcare provider, including counselors. The insured counselor in this case was a licensed professional clinical counselor (LPCC) who had been practicing for more than ten years in private practice at the outset of this matter.
Summary
The client, a 20-year-old female college student, presented to the LPCC for treatment of anxiety. Of note, the LPCC had seen the client weekly over the course of a 12-week period six months earlier for complaints of anxiety, perceptual distortions, dissociation, fear of losing control and an inability to focus. During one of these sessions, the client expressed that she was having suicidal ideations but had no plan or intent. However, the client did not continue with therapy at that time as she returned to her family home for the college summer recess. The LPPC offered telecounseling, but the client did not follow-up. Upon return to counseling six months later, the client reported that she had been experiencing severe anxiety over the past several weeks. The LPCC did not inquire about the prior symptoms, nor did he review the previous counseling notes because of his familiarity with the client and the client’s symptoms. As the session progressed, the LPCC observed that the client was exhibiting signs of anxiety and agitation—constantly fidgeting and pacing and refraining from making eye contact. He documented that the client’s behavior “appeared manic” and that the client seemed to be “in crisis”. Based upon these observations and a concern that the client may be experiencing a manic episode due to a bipolar disorder, the LPCC recommended a psychiatry referral. The client responded negatively to this recommendation and stated that she was not interested in seeing a psychiatrist and, in fact, refused to schedule a follow-up counseling appointment. The LPCC provided the client with the name and phone number of the psychiatric provider and encouraged the client to reconsider, explaining the importance of follow-up and his concern for her wellbeing. He documented that he would follow-up with the client in one week. However, he did not document a suicide risk assessment nor an informed refusal of care.
In the interim, the counselor was contacted by the client’s father who informed him that the client died by suicide two days following the last counseling session. The client’s father told the LPCC that he was able to convince his daughter to call the psychiatrist; however, when they attempted to schedule an appointment, they were told that there was a six-month waiting list. After this phone call, the client refused to pursue any further follow-up and expressed that she no longer wanted to attend counseling sessions. The father was very concerned as he felt that the client was becoming extremely depressed and non-communicative, but he told the counselor that he felt helpless and did not know what to do to assist his daughter. He expressed disappointment with the LPCC’s treatment and asked the LPCC if he was aware that the client had a recent inpatient psychiatric admission for severe depression. The LPCC replied that the client had not provided this information to him.
Risk Management Comments
One month later, a lawsuit was filed against the LPCC by the client’s parents (plaintiffs) asserting that the LPCC failed to obtain a thorough behavioral health history, perform a complete assessment including a suicide risk assessment and to establish a safety plan. Plaintiff’s experts opined that the LPCC should have reviewed the prior counseling notes and inquired about the patient’s history which would have revealed that the client had a recent inpatient psychiatric admission for treatment of a major depressive disorder and associated suicidal ideation. Overall, plaintiff’s experts were critical of the LPCC for failing to appreciate the severity of the client’s behavioral health condition and to ensure proper treatment.
The defense experts were unable to support the LPCC’s treatment. An expert in psychiatry opined that the counselor should have documented a suicide risk assessment, given that he suspected the client was having a manic episode possibly related to a bipolar disorder, as there is a correlation between bipolar disorder and suicide. The counseling expert was critical that the LPCC did not review prior counseling notes and opined that this would be standard procedure. Both experts believed that the LPCC should have been aware of the client’s behavioral health history, particularly since she had treated with him previously. The defense experts also expressed criticism that the LPCC did not utilize standardized suicide risk assessment and safety planning tools. 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. Although the client stated that she did not want to see a psychiatrist, defense experts opined that the LPCC should have obtained the client’s consent to collaborate with the psychiatrist so that he could have followed-up if the client changed her mind regarding the referral. The experts noted that the LPCC may have been able to assist the client in obtaining an appointment had he obtained the consent. They also noted that the LPCC should have planned on following-up with the client in 24 hours as opposed to one week, based upon his concerns. The LPCC admitted in his deposition that he did not appreciate the severity of the client’s symptoms and that he should have inquired about the client’s history and documented a suicide risk assessment.
Resolution
This case had the potential for high exposure based upon the sympathy factor potentially influencing a jury decision. Integral to the defense’s resolution plan for this case was the evaluation that it was more likely than not that the plaintiff expert’s 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-noted defense challenges and lack of expert support, a decision was made to settle the case in mediation. The total incurred to defend and settle this matter on behalf of the insured counselor was greater than $975,000.
(Figures represent only the payments made on behalf of the insured counselor.)
Risk Control Recommendations for Clients at Risk for Suicide may include, but are not limited to the following:
- Inform clients about situations in which confidentiality protections may not apply at the outset of counseling, such as when foreseeable harm to self/others is noted according to the 2014 ACA Code of Ethics, as well as state and federal statutes. Document these discussions and obtain signed statements that the client understands these exceptions to privacy and confidentiality protections.
- Ask questions regarding suicidal ideation openly, and ensure that the counseling plan aligns with the risk assessment findings.
- 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 lethal means.
- 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.
- Practice within 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, adhere to the most stringent applicable standard.
- Perform comprehensive client assessments and document current complaints as well as a client history in order to determine the proper diagnosis as noted in E.5.a. of the 2014 ACA Code of Ethics.
References
Disclaimer
The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. Certain coverages may be provided by a surplus lines insurer. Surplus lines insurers do not generally participate in state guaranty funds, and insureds are therefore not protected by such funds. The claims examples are hypothetical situations based on actual matters. Settlement amounts are approximations. Certain facts and identifying characteristics were changed to protect confidentiality and privacy. “CNA” is a registered trademark of CNA Financial Corporation. Certain CNA Financial Corporation subsidiaries use the “CNA” trademark in connection with insurance underwriting and claims activities. Copyright © 2025 CNA. All rights reserved.