Medical malpractice claims may be asserted against any healthcare provider, including counselors. The insured counselor in this case was a licensed mental health counselor who had been practicing for approximately three years at the outset of this matter.
Summary
The client, a woman in her mid-40s, presented to the insured counselor for treatment for depression, alcoholism, and marijuana dependency. In addition to depression and substance use disorders, the client also acknowledged a history of borderline personality disorder, self-injurious behaviors including cutting and burning herself, as well as sexual, verbal, and physical abuse by a family friend during her childhood. The client denied a history of suicide attempts, but related occasional thoughts of wanting to die and not wanting to be alive.
After about six months of treatment, the client achieved sobriety as a result of participation in regular counseling sessions and attending Alcoholics Anonymous meetings. She also reportedly was sober from marijuana and was doing much better overall. She secured a new job and moved into a new apartment. However, she continued to struggle with negative emotions and depressive episodes, occasionally going days without leaving her apartment and engaging in self-injurious behaviors. The counselor’s main concern was that the client could relapse into alcoholism or marijuana abuse again, so he referred her to a psychiatric nurse practitioner who prescribed an antidepressant. After the client reported that she never picked up the prescription, the counselor highly encouraged her to retrieve the prescribed antidepressant. Eventually the client finally agreed to get the prescription, although according to the counselor’s treatment notes, the client was intermittently non-adherent to taking her prescribed antidepressants.
The insured counselor continued to see the client for four more years. During the course of the client/counselor relationship, the client began to express romantic ideations towards the counselor, “friending” him and regularly direct messaging him on social media. She would also frequently send the counselor text messages outside of his regular work hours. As detailed in the counselor’s documentation, the client became unable to focus on developing appropriate insights and started only attending the sessions for the opportunity to be close to the counselor, with the hope that the counselor would reciprocate her feelings. The client discussed her “love” for the counselor and even went so far as to discuss her dreams or fantasies regarding the counselor’s spouse dying, allowing her to be his partner. The counselor believed that the client’s transference was secondary to the feelings of anger that she frequently expressed towards the counselor during counseling sessions and the self-injurious behaviors she engaged in when they spent time apart. In one instance, the client admitted to burning herself due to her feelings of anger and jealousy when the counselor went on vacation with his family. However, the client denied any thoughts of suicide at those times.
The counselor’s treatment notes indicate that when client expressed romantic interest in the counselor, he reinforced the professional boundaries that he set at the onset of the counselor/client relationship. The counselor repeatedly reminded the client that their relationship was strictly professional in nature. However, the client’s transference continued to impede the progression of her therapy and became the purpose of her attendance in an effort to be near the counselor. The counselor did not consider referring the client to another counselor, as he assumed that the client’s "infatuation" with him was not deep-seated, only fleeting. The counselor concluded that ending the client/counselor relationship would likely do more harm than good for the client. The counselor thought that he would eventually be able to help the client move past those thoughts and get back to a working therapeutic relationship, and yet he continued to respond to the client when she would text him outside of working hours.
One Saturday, outside of the counselor’s work hours, the client sent a text to the counselor stating, “I want to die.” The counselor and client had previously established and agreed that statements like that – including previous texts from the client stating, “I feel like dying”, “This is no way to live”, or “How much longer can I live like this?” – all were an expression of the client’s pain and frustration, and not an actual expression of a desire to take her own life. The counselor and client had also previously developed a safety plan in the event that the client began experiencing suicidal ideations. In the plan, the patient agreed that she would contact the counselor and/or her mother and seek acute psychiatric care or community suicide prevention resources to ensure her safety. Further, their next appointment was scheduled for the following Monday, two days later, so the counselor responded “Hang in there. I will see you on Monday.”
The client was never late to an appointment, so when she did not appear at the appointed time on Monday, the counselor sent her a text asking if she was on her way. When the client did not respond, the counselor texted again stating that he hoped the client was not “shutting him out.” When he still did not get a response, he texted that the client needed to respond to him, or else he would call the police. When there was still no response, the counselor called the police to conduct a wellness check on the client. Later, the client’s mother contacted the counselor to let him know that the client had died by suicide.
Approximately a year and half after this incident, the client’s mother (the plaintiff) notified the insured counselor of her intent to file a professional liability lawsuit against the counselor, with a settlement demand of $500,000. In addition, the client’s mother also filed a complaint against the counselor’s license with the State Board of Professional Counselors (“the Board”).
Risk Management Comments
The plaintiff’s allegations against the counselor were primarily focused on the counselor’s response to the client’s text messages sent the same day she took her own life. Defense experts agreed that counselors are not obligated to always be available to their clients, nor should they be expected to respond immediately to every text that they receive from a client. In terms of the content of the client’s last text messages to the counselor, defense experts opined that if the insured counselor had a long-term relationship with the client (as he did in this case) he could reasonably draw the conclusion that the client’s texts were a hyperbolic expression of frustration. Defense experts also said that the counselor would not want to encourage such behavior because that might worsen the behavior. Yet, at the same time, the counselor was also aware that the client was distraught and at risk of self-injury due to her clinical diagnoses and history of self-harm. Plaintiff’s experts argued that the counselor should have made a greater effort to ensure his client’s well-being. These efforts could have included notifying law enforcement of her threats of self-harm and requesting a well-being check when the client texted him, which may have prevented the client’s death.
Further, in the professional liability case, the plaintiff’s attorney refused to provide defense counsel with a copy of the client’s cell phone records. This seemed to suggest that the records could contain evidence that may have otherwise hindered the plaintiff’s case against the insured counselor, such as evidence that before her death the client had tried unsuccessfully to reach her family members or friends by sending them similar types of concerning text messages. However, without access to these records via discovery while the case was still in the presuit phase, defense experts could not know this for certain.
With regards to the Board complaint against the counselor, the Board took a more comprehensive look at the entire professional relationship between the client and the counselor. The Board subpoenaed and reviewed significant evidence, including the counselor’s documentation in the client healthcare information record, the social media direct messages and text message history between the counselor and the client, the client’s journal, and the sworn testimonies of the counselor and the client’s mother. The Board was critical of the counselor’s failure to fully examine the risks, benefits, and ethical considerations pertaining to the counselor’s treatment approach with the client, for failing to modify his treatment plan when it seemed to no longer be effectively managing the client’s condition, and for failing to terminate the counselor-client relationship and refer the client to a new therapist when the counselor could no longer manage the client’s transference. They were also critical of the counselor’s frequent use of electronic communication in place of face-to-face communication with a client suffering from depression and borderline personality disorder, and for failing to restrict or assign limitations to the client’s access to the counselor outside of work hours.
Resolution
Both the counselor and the plaintiff expressed a desire to resolve the professional liability matter via mediation. Through the mediation process, the counselor’s defense counsel was able to successfully negotiate down from the plaintiff’s initial mid-six figure demands. The total incurred to defend and settle this matter on behalf of the insured counselor was greater than $100,000.
After reviewing the evidence related to this matter, the Board concluded that the counselor engaged in an inappropriate dual relationship with the client and failed to meet the minimum standards of performance for a licensed mental health counselor. The Board placed the counselor’s license on probation for two years, ordered the counselor to complete 15 hours of continuing education in the areas of borderline personality disorder and dialectical behavior therapy, and issued a $2,500 fine against the counselor. The total expenses incurred to defend the insured counselor in this Board matter were greater than $8,000.
(Figures represent only the payments made on behalf of the insured counselor.)
Risk Control Recommendations: Clients at Risk for Suicide
- 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.
Risk Control Recommendations: Managing Professional Boundaries
- Clarify roles and boundaries and establish the limits of availability at the outset of the counselor/client relationship. Document mutual expectations in the client healthcare information record, clarifying the scope of the therapeutic relationship.
- Maintain appropriate boundaries with clients and avoid any interactions that are not within accepted counseling practices (e.g., agreeing to meet them at social events or communicating with them on social media outside of the parameters of a professional relationship).
- Avoid extending the counseling relationship beyond conventional boundaries. Counselors must exercise professional judgment in all client interactions outside of a professional setting, to avoid ambiguity in what is supposed to be a therapeutic, client-centered relationship. The 2014 ACA Code of Ethics (Section A.6.a) states that the counselor should consider the risks and benefits of extending current counseling relationships beyond conventional parameters (e.g., attending a client’s formal ceremony, purchasing a service or product provided by the client, and visiting a client’s ill family member in the hospital).
- Limit self-disclosure to only that which is directly related to the client’s overall treatment goals. The rationale for such disclosures should be documented in the client care information record.
- Maintain confidential client session documentation in a protected manner as part of the client's clinical record throughout the duration of the client's course of therapy/treatment and until the statute of limitations for litigation has expired. Note that the use of e-mail, texting, or other forms of communication related to client care may be discoverable in the event of an administrative action or litigation.
- Utilize social media cautiously and prudently. Adopt conservative privacy settings for accounts and decline “friend” requests from current or former clients.
- Terminate any client who requests or initiates inappropriate discussion and/or behaviors and facilitate the transfer of the client to another counselor/therapist.
- If inappropriate feelings toward a client arise, immediately obtain professional supervision and guidance. If the feelings cannot be properly and timely managed, terminate the client from treatment and facilitate the transfer of the client to another counselor/therapist.
References
- American Counseling Association. (2014). ACA Code of Ethics. Retrieved from https://www.counseling.org/resources/ethics
- Bray, B. (2019). Making it safe to talk about suicidal ideation. Counseling Today. Retrieved from https://www.counseling.org/publications/counseling-today-magazine/article-archive/article/legacy/making-it-safe-to-talk-about-suicidal-ideation
- HPSO & CNA. (2019). Counselor Spotlight: Boundaries. Retrieved from https://www.hpso.com/getmedia/a7c4acab-29a5-474d-a87d-f442e4cae1f7/counselor-spotlight-boundaries.pdf
- Gleeson, S. (2023). How to manage sexualized transference. Counseling Today. Retrieved from https://www.counseling.org/publications/counseling-today-magazine/article-archive/legacy/how-to-manage-sexualized-transference
- May, J. M., Richardi, T. M., & Barth, K. S. (2016). Dialectical behavior therapy as treatment for borderline personality disorder. Mental Health Clinician, 6(2), 62-67. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6007584/
- National Action Alliance for Suicide Prevention. (2018). Appendix A: Suicide Screening and Risk Assessment Instruments. Recommended standard care for people with suicide risk: Making health care suicide safe, 14-15. Retrieved from https://theactionalliance.org/sites/default/files/action_alliance_recommended_standard_care_final.pdf
- National Action Alliance for Suicide Prevention. (2018). Appendix B: Safety and Stabilization Planning. Recommended standard care for people with suicide risk: Making health care suicide safe, 16. Retrieved from https://theactionalliance.org/sites/default/files/action_alliance_recommended_standard_care_final.pdf
- National Conference of State Legislatures. Mental Health Professionals’ Duty to Warn. Retrieved October 9, 2024, from https://www.ncsl.org/health/mental-health-professionals-duty-to-warn
- World Health Organization. (2023). Preventing suicide: a resource for media professionals, update 2023. Retrieved from https://www.who.int/publications/i/item/9789240076846
Disclaimer
These case scenarios 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.
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