Counselors and Medical Malpractice
Case Study with Risk Management Strategies
Presented by HPSO and CNA
Greater than $65,000
(Monetary amounts represent the settlement and legal expense payments made solely on behalf of the insured counselor.)
Medical malpractice claims may be asserted against any healthcare provider, including counselors. This case study involves a licensed professional counselor (LPC) working in a school setting.
A large school district in a metropolitan area began a counseling program for middle school and high school students. The counseling program was in its second year when the insured counselor (defendant), a newly hired and newly licensed professional counselor (LPC), began working at a high school in the school district. The counselor was responsible for providing guidance and career counseling services to high school students, giving presentations to health classes on mental health resources, referring students to psychologists and other mental health resources, and mediating conflict between students and teachers.
Between classes, a freshman student (the client/plaintiff) came to the counselor’s office after being assaulted by another female student in the women’s restroom. The client was upset and there were obvious signs that she had been physically assaulted. The client reported that while she was in the restroom, she was attacked. She reported her attacker as being a junior and a known ‘bully’. The client reported that the assault lasted approximately 15 minutes. At one point during the attack, a teacher came into the bathroom and announced that the students needed to get to class, which briefly stopped the attack. However, as soon as the teacher left the bathroom, the attacker resumed the attack on the client. After the assault ended, the client hid in another women’s bathroom to try to calm down.
The counselor took the client/student to the office of the Vice Principal (co-defendant) to report the altercation. The counselor believed that the Vice Principal was not sympathetic and seemed "rushed," sending the client back to class. The counselor also assumed that the Vice Principal would inform the parents or resource officer about the incident pursuant to school policy, but never followed up to verify if this had been done.
The morning after the attack, the client sought treatment at a local emergency department (ED) for soft tissue swelling in her face and back. She also reported continued feelings of helplessness and hopelessness, including a fear of returning to school. Following an evaluation, the ED provider diagnosed her with a soft tissue injury and recommended ice and ibuprofen. He also referred the client to a mental health counselor.
For the next several months, the client continued to suffer from back and neck spasms and pain. She was referred to physical therapy, and her physical pain resolved within two months. Nevertheless, her emotional condition continued to deteriorate. The mental health counselor the client was referred to diagnosed her with mixed anxiety and depressed mood due to the events of the altercation.
The parents scheduled a meeting with the school’s Principal, Vice Principal and several administrators of the school system. The mother was upset about the failure to be informed of the incident. Following a meeting with the Vice Principal, she asked the school to suspend the attacker, which was denied. The parents threatened to file a lawsuit against the school and criminal charges against the attacker if the abuse against her daughter continued. The Vice Principal assured the mother and client that the school would handle the situation and keep the client safe. The parents asked the Vice Principal to send them the planned safety measures he was going to institute to address further bullying. The parents wanted to review the measures with the client, and the Vice Principal agreed to email the measures to the parents the following day. However, no record of the safety measures being emailed to the parents was ever located, and the parents testified later that they never received them.
The Vice Principal spoke with the attacker and instructed her to stop bothering the client. The bullying seemed to cease for a few weeks, but quickly resumed after Christmas break.
Over the next few months, the client would meet regularly with the counselor. In the course of these sessions, tools and knowledge on how the client could deal with bullying were discussed/provided. During one of the meetings, she stated that her attacker was still bothering her. While the attacker was not bullying her "outright", she was making comments about her on social media and being shoved in the hallways by the attacker’s friends. The client reported that she was no longer going to the bathroom alone and worried about her safety every day she was at school.
In accordance with school policy, the counselor informed the Vice Principal of the continued bullying so he could report it to the parents and resource officer. The Vice Principal reportedly told the counselor that he was not concerned with the continued bullying as he believed that the client was being overly dramatic. He also stated that he thought the client enjoyed the attention she was getting from the counselor and was possibly making up the story of the continued bullying.
During one of her sessions with her mental health counselor outside of school, the client stated that she was becoming more and more depressed and admitted to having thoughts of suicide due to the continued abuse at school. Once the client reported the continued abuse to her mental health counselor during the therapy session, the mental health counselor informed the mother. Shortly thereafter, the mother, as legal guardian, filed a lawsuit on behalf of her daughter against the school system and several individuals (co-defendants). The co-defendants included the high school’s Principal, Vice Principal, the insured school counselor and the individual that attacked the plaintiff.
Allegations against the insured school counselor included:
- Failure to prevent students from assaulting and battering plaintiff.
- Failure to appropriately caution and implement safeguards to ensure that the student body would not assault or batter plaintiff and to take appropriate action to sanction such behavior.
- Failure to properly sanction the attacker for assault and battery of the plaintiff.
- Failure to be vigilant in preventing harassment, bullying, menacing, violence, assault, battery and other illegal acts directed toward and inflicted upon plaintiff as a student.
- Failure to protect plaintiff, and to protect plaintiff as a student, and to provide her with security within the context of a student attending high school commensurate with standards imposed on high schools.
Risk Management Comments
The plaintiff alleged emotional and physical suffering. The client/plaintiff sustained injuries to her back, neck, left hand, shoulder and experienced headaches following the incident. In addition, she contended that she was afraid to go to the bathroom and had suicidal thoughts. All of these issues were substantiated by her mental health counselor, the insured school counselor and her healthcare information record. During the discovery phase, the defense team discovered that all of the defendants were well aware that the plaintiff had been bullied and that the client’s attacker was a known bully. Prior to the first assault on the plaintiff, the attacker had been disciplined more than nine times for bullying type behavior.
The plaintiff saved all the social media posts made by the attacker and/or her friends. While the plaintiff’s saved posts displayed the attacker’s bullying type behavior, the defense team found social posts in which the plaintiff made unsolicited harassment type behavior toward the attacker.
Defense counsel for the insured counselor noted that a jury could be angered by the mismanagement of the incident on the part of both the school and the school district, especially with the attacker’s history of bullying. Defense experts were not critical of the counselor’s actions with the client. However, if a plaintiff’s verdict was awarded, the defense team opined that a jury would have difficulty separating the counselor from the other school district’s employees, and the counselor could be held liable.
Given the defense experts’ assessment of the case, and the likelihood of a plaintiff’s verdict should the case go to trial, the defense and the counselor agreed to pursue mediation. Mediation resulted in a settlement. The total incurred amount for the professional liability claim, including settlement and legal expense payments, was greater than $65,000
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 involved, the counselor should adhere to the most stringent applicable standard.
- 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 as to the application of legal requirements to the release of confidential information.