Counselor 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 mental health counselor working in private practice. Allegations in this case included:
- Failure to maintain appropriate boundaries (ACA Code of Ethics Section A.5.c.);
- Extending counseling boundaries (ACA Code of Ethics Section A.6.b.);
- Failure to conduct ethical decision making (ACA Code of Ethics Section I.1.b.)
Summary
A college student (“the client/plaintiff”), with a history of depression and anxiety, sought mental healthcare through her university’s medical center. The healthcare provider at the medical center prescribed anti-depressants and referred her to the university’s mental health counseling center.
The insured mental health counselor (“the counselor”), at the time employed by the university’s mental health center, began treating the client in her sophomore year of her undergraduate degree. During the next two years, the counselor left the university and started his own private mental health counseling practice. The insured continued to treat the client in his private practice. Treatment was provided to the client over the course of four years, including her undergraduate years and after she began grad school.
While on holiday break, the client left school and spent a few weeks at her parents’ home. Her parents became concerned about their daughter’s behavior. At family gatherings, she showed a lack of interest or pleasure in family activities and also exhibited mood swings. During the holidays, the parents persuaded their daughter to seek treatment with an alternate mental health counselor.
Working with the new counselor, the client reported that she had been under considerable stress with grad school and was having a sexual relationship with an older male, who had previously been her counselor. The client reported that the counselor ended their professional relationship a year ago because he felt that she was doing well. The sexual relationship began approximately six weeks after the professional relationship ended. The client reported that her depression and anxiety had worsened due to the guilt she experienced with respect to having a sexual relationship with a married man.
Over the next few weeks, the client dropped out of grad school to focus on her mental health. She returned to live with her parents and cut off all contact with the insured counselor, whom she had discovered was engaging in a sexual relationship with another client while she and the insured were romantically involved. The client later filed a lawsuit against the insured and his private counseling practice (for which the counselor did not have professional liability insurance coverage).
Risk Management Concerns
During the client’s deposition, she testified that the insured counselor used his position as a counselor to groom her by giving her gifts and engaging in inappropriate conversations, while she was undergoing therapeutic care. The plaintiff produced hundreds of pages of text messages between the client and counselor that occurred both before and after their sexual relationship. The text messages revealed that the relationship transcended professional parameters, including late night conversations and the counselor’s use of guilt tactics to encourage the client to meet him at bars.
The plaintiff subpoenaed the phone/text records of the counselor. These records revealed that the counselor disclosed confidential information about the client to others. Most of the text messages were inappropriate and unprofessional. The plaintiff asserted the following allegations against the insured and the insured’s private counseling practice:
- The counselor owed a professional duty of care to the plaintiff as a provider of psychotherapy services but breached that duty by engaging in inappropriate conversations, conduct and a sexual relationship. Further, the counselor’s actions resulted in the plaintiff sustaining permanent and ongoing injuries.
- The counselor engaged in inappropriate conversations and gift giving for the purpose of enticing and coercing the plaintiff to engage in sexual conduct. The plaintiff contended that those actions violated the American Counseling Association’s (ACA) Code of Ethics, as well as state statutes related to criminal sexual conduct, which could permit the plaintiff to collect an award of damages in the civil action.
- A claim of vicarious liability, under the doctrine of respondeat superior, was asserted against the insured’s private counseling practice. Specifically, the plaintiff pled that the private practice was vicariously liable for the alleged wrongful conduct of the counselor, who was acting within the course and scope of his employment when treating the plaintiff, and whose actions caused the plaintiff’s alleged injury.
- The counselor violated state statutes by disclosing the plaintiff’s protected health information to a third party without her consent.
Resolution
The plaintiff’s expert was a counselor who specialized in family and marriage therapy. The expert opined that the insured violated the accepted standard of ethics by engaging in daily communications with the plaintiff via text, email, and social media; gift giving; meeting the plaintiff outside of a professional office setting; and dining/consuming alcohol with the plaintiff.
The expert further noted that violations of the required professional boundaries “ultimately led to the culmination of a damaging, long-term sexual/romantic relationship” as a consequence of the insured’s “clear manifestation of [his] abuse of power for his own personal and sexual gratification.”
The plaintiff’s expert concluded that the relationship between the insured and plaintiff took “severe advantage of [plaintiff’s] dependency, psychiatric instability, poor self-esteem, and lack of confidence,” resulting in a “deep and lasting negative impact on [plaintiff’s] vocational functioning in the form of poor concentration, decreased memory, difficulties with multi-tasking, and executive functioning.” The expert, therefore, expressed the view that the plaintiff was not able to return to grad school.
The plaintiff’s current treating therapist disclosed that, as a result of the insured counselor’s conduct, the plaintiff experienced emotional distress, pain and suffering and psychological trauma that adversely impacted her social relationships, romantic relationships, family relationships and overall mental and physical well-being. The plaintiff claimed total damages with lost wages, past medical costs, diminished earning capacity and pain and suffering to be greater than $8 million.
The defendants did not have expert support regarding the issue of standard of care and could not provide any support for initiation of a sexual relationship with a former client less than two months after the last counseling session. Instead, the defense focused on the lack of causation and damages regarding the alleged conduct.
The insured was deposed and presented as well as could be anticipated in view of the situation. Notwithstanding the insured’s overall poised demeanor during the deposition, the defense recommended settlement of the case.
The claim was resolved against the insured counselor through mediation. However, the insured did not have professional liability insurance coverage for his counseling practice. Therefore, the counselor was ultimately responsible for paying any settlements on behalf of his private counseling practice.
Total Incurred: $203,000
(Note: Monetary amounts represent the payments made solely on behalf of the insured counselor and do not reflect payments made on behalf of the other parties involved in the claim, including the counselor’s private counseling practice. Amounts paid on behalf of the co-defendants named in the case are not available.)
Risk Control Recommendations
- 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.
- Review the ACA Code of Ethics at least annually and recognize the professional obligations to uphold the code.
- Practice in accordance with the standard of care, limits of one’s license/certification, and all regulations and ethical guidelines. Seek peer review and/or clinical supervision, as needed, and actively participate in continuing education programs related to evolving ethical issues.
- Manage transference and/or countertransference with appropriate clinical techniques, obtaining clinical supervision and/or consultation as needed. If the transference/countertransference cannot be successfully managed, the counselor should cease treatment, explaining the reasons for termination to the client and referring the client to another professional. Consult with the ACA and/or a healthcare attorney for additional assistance, if needed.
- Prohibit and prevent any sexual activity with a current client, and do not engage in sexual activity or a romantic relationship with a prior or current client’s significant other or family member. The ACA Code of Ethics clearly states that such relationships are never ethically appropriate. Client consent to sexual relations or romantic relationships/activities of any kind does not waive the counselor’s responsibility to prevent any such activity from occurring. The counselor will be deemed solely responsible and liable for any sexual or romantic relationship with a client, a client’s significant other, and/or a client’s family member.
- Terminating the client does not create an exemption from the prohibition against engaging in a sexual romantic relationship. Cease written and verbal contact with the client upon termination and document any client communication attempts. The ACA Code of Ethics states that such a relationship should not be entertained until at least five years after the last treatment date. Again, simply terminating treatment does not exempt the counselor from the responsibility for waiting the requisite period before considering a sexual/romantic relationship with a former client or anyone closely associated with the client. After the five-year waiting period has elapsed, carefully consider whether such a relationship would be beneficial or potentially harmful to the client.
- Avoid multiple relationships with clients, their significant others and their family members. This protocol may involve declining invitations to participate in social/personal/family activities with the client or others outside of the treatment setting. Document all such invitations in the client’s clinical healthcare information record, as well as the response given and consequent communication. Occasionally, participation in such events may be beneficial to the client and refer to the ACA Code of Ethics for guidance. If the decision is made to participate, document the potential benefit to the client, the clinical decision-making process and the client’s response.
- Behave in an ethical and legal manner. Counselors should be aware that client welfare and trust in the profession depend upon a high level of professional conduct (ACA Code of Ethics, Section I).
For more information on the
ACA Code of Ethics, ethical decision making, and other counseling resources, visit the
ACA’s Knowledge Center.
Reference
American Counseling Association (
ACA). (2014).
ACA Code of Ethics.
https://www.counseling.org/resources/aca-code-of-ethics.pdf
Disclaimer
These 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, 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. 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.