Counselors and 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 a licensed professional clinical counselor (LPCC) working in private practice.
A male client in his mid-30s, who was married with three children and was a successful business executive, was being treated for depression. He was originally diagnosed while in high school. Notwithstanding compliance with his medication regimen, he continued to experience exacerbations of moderate to severe depression.
During his bouts of depression, he was unable to work or participate in family activities and would rarely leave his home. The client was being treated by a psychiatrist, who was providing prescription therapy that included Ability, Pristiq, Zoloft, Cymbalta, Valium, Xanax, Wellbutrin, Effexor, Klonopin and Seroquel, as well as counseling and magnetic therapy.
From April to August, the client received counseling from the insured LPCC. Immediately prior to the patient beginning treatment with the insured, his wife had threatened to leave him if his condition did not improve. Both the psychiatrist and LPCC were aware that the client was seeking treatment from multiple sources, but the providers failed to consult or share information due to concerns regarding violation of the client’s HIPAA rights. Throughout the counseling process, the providers also were aware that the client was an avid hunter who had guns in his home.
The client and his family planned a two-week vacation in August. Due to a work commitment, the client changed his travel plans to leave the day after his family. When her husband did not arrive at the vacation location as planned, the wife tried numerous times to contact him via his cellphone without success. She called the neighbor and asked them to check to see if her husband was still at home. The neighbor entered the home and found that the client had committed suicide by a self-inflicted gunshot wound.
Risk Management Concerns
Shortly after the client’s death, the client’s estate (plaintiff) filed a lawsuit on behalf of his wife and minor children against the insured LPCC (defendant), the insured’s employer (co-defendant), the psychiatrist (co-defendant) and the psychiatrist’s physician assistant (co-defendant), who had treated the client when the psychiatrist was unavailable. Allegations against the insured LPCC included:
- Failure to advocate on behalf of the client
- Failure to promote the welfare of a client
- Failure to establish an appropriate counseling plan with client
- Failure to notify/inform other practitioners/family of client’s welfare per organizational policies and procedures
- Failure to conduct ethical decision making (ACA Code of Ethics Section I.1.b.)
The plaintiff’s estate asserted that the LPCC was on notice that the patient was a suicide risk who had access to guns at home. The plaintiff further asserted that, despite this knowledge, the insured and co-defendants failed to communicate with one another and take appropriate action to remove the client’s guns from his home to help prevent his suicide.
During the client’s last visit with the LPCC, he had confided that he was contemplating suicide. The insured documented this comment on the client’s healthcare information record but noted that it was his belief that the client was not a suicide risk. Based upon this information, the defense team believed that the case had a potential for high exposure. The defense team representing the insured LPCC estimated the client’s future earnings loss to be $7 million dollars or greater, with the insured’s liability apportioned at 20-30 percent.
The defense attorney in this case was concerned about whether an expert in the insured LPCC’s specialty would conclude that the failure to take action following the client’s admission that he was contemplating suicide represented a breach of the standard of care. Therefore, the defendant agreed to pursue mediation rather than take the case to trial.
Mediation resulted in a settlement. The total incurred amount for the professional liability claim was greater than $525,000.
(Note: Monetary amounts represent only the payments made solely on behalf of the counselor.
Risk Management 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 implicated, the counselor should adhere to the most stringent applicable standard.
- Communicate, as necessary and as needed, with the client’s other treating providers to ensure that all are aware of a client’s medical, psychosocial and emotional status. If the client’s medical, psychosocial and emotional status changes, the proper treating individuals should be notified in order to make necessary changes to medications and/or living environment.
- Respect the dignity and promote the welfare of all clients. Counselors are obligated to serve as a client advocate and should address potential barriers and obstacles that may inhibit access and/or growth and development of a client.
- Conduct and document a discussion with the client regarding information that may not be protected from release, including information relating to child endangerment/neglect/abuse, danger to self or others, and court-ordered disclosures. Obtain signed statements that the client understands these exceptions to privacy and confidentiality protections.
- If a report to a third party is necessary, counselors should be accurate, honest and objective in their reporting.
- In a situation of serious or foreseeable harm to a client or identified others, the general requirement of confidentiality may not apply. Counselors should review the 2014 ACA Code of Ethics, as well as state and federal reporting requirements, and develop a policy relating the application of legal requirements to the release of confidential information.