Counselor and Medical Malpractice
Case Study with Risk Management Strategies
Presented by HPSO and CNA
Medical malpractice claims alleging breach of privacy may be asserted against any healthcare provider, including counselors. The following case study involves a licensed professional counselor.
Case Study: Alleged breach of confidentiality, incorrect diagnosis and alienation of affection resulting in emotional distress, loss of his marriage and loss of his relationships with his children
Indemnity Settlement Payment:
In excess of $45,000
The insured licensed professional counselor provided services to a married couple, both together and individually, for approximately one month. The sessions revealed multiple episodes of emotional abuse by the husband, who also made physical threats against his wife and their children, and admitted to holding a loaded gun during marital discussions. In addition, the husband placed security cameras throughout their home and required his wife to wear a recording device, in order to hear her conversations when she was not in his presence. He further attempted (unsuccessfully) to have a friend engage his wife in an affair to prove his belief that she was unfaithful.
The counselor believed that the wife and children were at risk, recommending to the wife that she leave the marital home to live with her parents who were located several hours away. The counselor reported the husband’s behavior as child abuse, in compliance with state child protection regulations. The wife left the marital home with the children and subsequently filed for divorce and sole custody of the children, due to the husband’s emotional and physical abuse.
The counselor was ordered by the court to provide records relating to the client and was subsequently required to testify under oath during the divorce and child custody proceedings. The counselor had maintained meticulous entries in the clinical records for both the husband and wife during treatment. Included in each file were signed statements from both parties that they understood that their personal information would not be released without their authorization unless the counselor determined they were a danger to themselves or others, evidence of child abuse existed or a court order had been issued. The husband sued the counselor for breach of privacy and fiduciary duty, emotional distress, the loss of his marriage and family, and an incorrect diagnosis of his mental state.
Risk Management Comments
Fortunately, the counselor had carefully reviewed with the husband and wife the conditions under which she would release the clients’ personal information. Both spouses had signed their agreement to those conditions. Further, the counselor maintained client records supporting her clinical decision-making process, the husband’s diagnosis and her actions in reporting the husband for child abuse.
Defense experts fully supported the counselor’s assessment of the husband, her actions in reporting the abuse, as well as her advice to the wife to leave the marital home with her children for safety reasons. They further noted that the husband lacked awareness of the seriousness of his problems. The defense filed a motion for summary judgment. The expert witnesses retained by the husband’s attorney were unable to support the allegations against the counselor, and the judge granted the motions for summary judgment and dismissal of the claim. The presence of strong documentation had provided the defense experts and defense counsel with the information needed to successfully defend the counselor in this lawsuit.
Risk Management Recommendations
When determining whether or not to release confidential information, consider the following guidelines:
- Know and practice within the state scope of practice act, and in compliance with the standard of care and state licensing / certifying board requirements.
- Review state and federal laws, regulations and requirements, as well as employer policies regarding client healthcare information confidentiality and privacy, and act accordingly. When multiple requirements exist, comply with the most stringent of those that apply.
- Preserve client confidentiality with spouses and / or family members, and explain and consistently maintain practice boundaries (including privacy) with every client.
- Follow state and federal requirements and exemptions regarding unauthorized release of private healthcare information, including the duty to warn if clients are a danger to themselves or others, as well as the requirements for reporting known or suspected child abuse.
- Review with each client all applicable confidentiality / privacy regulations and protections, as well as any exceptions to those protections. Explain practice policies when initiating treatment, and obtain a written acknowledgment from each client confirming the understanding and acceptance of these conditions.
- Understand and comply with the ACA Code of Ethics (www.counseling.org) and other relevant ethics codes from other professional organizations or licensure / certification boards related to client confidentiality and privacy.
- Never ignore a subpoena, whether it involves releasing clinical records, appearing for a deposition or testifying in court. Consult with an attorney knowledgeable about health law and request guidance about potential conflicts between legal mandates and client privacy rights when responding to a subpoena.
- Engage a healthcare attorney to prepare for any deposition or testimony under oath. The preparation should minimally include a scrupulous review of clinical records, as well as practice in responding to questions truthfully and accurately, without providing unasked-for information.
- Maintain complete and accurate documentation in the client’s clinical record regarding the clinical decision-making process, the client’s response to treatment, discussions with clients about confidentiality / privacy regulations and exceptions, and any client-related correspondence.