Counselor Medical Malpractice Case Study with Risk Management Strategies
Presented by HPSO and CNA
Medical malpractice claims may be asserted against any healthcare provider, including counselors. This case study involves an alcohol and drug counselor working in private practice.
The client in this case, a registered nurse (RN) with a suspended license, was ordered by the State Board of Nursing (SBON) to undergo alcohol addiction treatment as one of the requirements for reinstatement of her RN license. The client’s employer reported her to the SBON when she was suspected of being intoxicated while on duty.
The insured counselor (defendant) is a licensed alcohol and drug counselor who was providing support services to the client. During support sessions, the client’s drinking habits were discussed in great detail. The client advised the insured counselor about how she and her former best friend, also an RN and colleague, would occasionally drink alcohol while on duty in the neonatal intensive care unit (NICU) at a local hospital. The client believed that the friend reported her drinking habits to their employer because the two of them had a disagreement prior to her termination and board investigation.
After several months of support sessions, the counselor became convinced that the well-being of patients were at risk if the client’s former friend/nurse colleague continued to consume alcohol while working in the NICU. The counselor made a decision to convey his concerns to the SBON, as he believed that he was legally required to report any suspicion of potential child abuse or neglect.
The counselor’s report initiated investigations into the client’s former friend/nurse colleague by the employer and the SBON. The employer’s investigation lasted several months and did not find any incident where the nurse appeared impaired or incompetent to perform her job as a NICU nurse. Two years after the report was submitted, the SBON closed the matter without taking any action against the nurse. Prior to the SBON dismissing the matter against the nurse, she filed a lawsuit against the insured counselor, his employer (co-defendant) and the client (co-defendant) for defamation and punitive damages.
The nurse (plaintiff) alleged that the report the insured counselor had submitted to the SBON was false and that the defamatory statements in the SBON complaint caused harm to her career. The plaintiff further asserted that the client knew the statements she made about the plaintiff were false and that both the counselor and the client acted with malice. Allegations in this case included:
- Making an inaccurate, defamatory and nonobjective report to a licensing board (American Counseling Association (ACA) Code of Ethics, Section C.6.b.);
- Making an unwarranted complaint that was retaliatory in nature (ACA Code of Ethics, Section I.2.e.);
- Failure to conduct ethical decision making (ACA Code of Ethics, Section I.1.b.)
In addition, the plaintiff stated that she had a prior history of depression and anxiety and that these conditions were greatly exacerbated by the stress she endured during the investigations by her employer and the SBON. She reported that due to the heightened nature of her condition, she was prescribed antianxiety/antidepressant medication and sought care from a behavioral health counselor.
Risk Management Concerns
The defense experts opined that the case against the counselor was defensible. The insured stated that he had no motive to report the matter other than concern for the wellbeing of the infant patients to whom the nurse (plaintiff) was providing care. The insured received information he thought to be true and reported the information as a mandated reporter pursuant to state law.
The defense team contended that the insured counselor was a mandated reporter and noted that mandated reporters have immunity from criminal and civil liability for any report required or authorized under the child abuse reporting law. In this case, the plaintiff would be required to prove that the co-defendant (the client nurse) knew the report that she made was false or made with reckless disregard of its truth or falsity.
The defense team believed that liability would be determined according to a he-said/she-said analysis. The plaintiff contended that the client also was liable for defamation based upon statements made to the counselor. However, the client’s attorney filed a dipositive motion to have her removed from the case. The motion was granted by the court on the premise that state law dictated that a client cannot be sued for defamation with respect to statements made during a counselor-client treatment session.
Plaintiff presented a $200,000 demand. The defense team for the counselor continued to assert that there was a 70-80 percent likelihood of a jury verdict in favor of insured, even without the co-defendant client remaining in the case.
The case appeared to be highly defensible, and the defense team was ready to file a motion of summary judgment following the favorable defense expert opinions. However, immediately prior to filing the motion to dismiss the counselor, the defense counsel learned that the insured counselor sent an email to the plaintiff's employer after he was served papers related to the lawsuit. The counselor sent this email after reporting the claim to CNA/HPSO and after he was cautioned not to communicate about the case apart from talking to the defense counsel or the CNA/HPSO claim specialist. The defense team concluded that if this email was discovered by plaintiff's counsel, it would help further the plaintiff counsel’s claim that the insured counselor damaged the nurse’s professional and personal reputation.
In the email sent to the hospital, the insured stated that "the manner the nurse responded to her board complaint suggests she cannot control her anger.
" He also stated, "Rather than protecting her character, she has chosen to expose her mental and physical status in a public record forum by way of filing a nuisance lawsuit. This is very concerning and hope the nurse gets the emotional and psychological help she needs.
Defense counsel regarded the email as concerning and advised that mediation should be attempted as quickly as possible. If the plaintiff learned of this email communication, it would result in a significant increase in the case value. Moreover, sending an email to the plaintiff’s employer was clearly outside of the insured's scope of responsibility.
The claim was resolved against the insured counselor through mediation. The total incurred to manage, defend and settle this case on behalf of the insured counselor totaled more than $185,000.
(Monetary amounts represent the payments made solely on behalf of the insured counselor.
Risk Control Recommendations
- Know and practice within the counselor’s state-specific scope of practice, and in compliance with standard of care and state licensing/certifying board requirements. If more than one standard of care, law or regulation is involved, the counselor should adhere to the most stringent applicable standard.
- Understand all laws or regulations that govern client interactions. Ignorance of the law, employer policy or professional ethics does not absolve the counselor of the responsibility to act within established clinical, ethical and regulatory guidelines.
- Be accurate, honest, and objective in reporting professional activities and judgments to appropriate third parties, including courts, health insurance companies, those who are the recipients of evaluation reports, and others. (2014 ACA Code of Ethics, C.6.b. Reports to Third Parties).
- Behave in an ethical and legal manner. Counselors should be aware that client welfare and trust in the profession depend on a high level of professional conduct (2014 ACA Code of Ethics, Section I).
- Do not initiate, participate in, or encourage the filing of ethics complaints that are retaliatory in nature or are made with reckless disregard or willful ignorance of facts that would disprove the allegation. (2014 ACA Code of Ethics, I.2.e. Unwarranted Complaints).