Medical malpractice claims may be asserted against any healthcare provider, including social workers. The insured in this case was a Licensed Clinical Social Worker (LCSW) who had over ten years of experience as a drug rehabilitation counselor. One year prior to this incident, the LCSW transitioned to private practice specializing in forensic counseling and received client assignments through the court system.
Summary
The client was a 40-year-old female with three minor children who was referred for court‑ordered counseling as a condition of probation following a felony domestic violence conviction involving her ex-husband. Treatment goals included anger management, counseling for depression and anxiety, and family reunification. The LCSW understood her role to include communication with the probation officer (PO) regarding the client’s attendance, progress, and compliance with counseling requirements. A written release originating from the Department of Corrections (DOC) was executed by the client authorizing the DOC to share pertinent information with the LCSW. However, no reciprocal written authorization was executed permitting the LCSW to disclose confidential information to the probation officer, the court, or the client’s family members. Despite the absence of a reciprocal release, the LCSW believed that the DOC release allowed for bidirectional communication of the client’s confidential information. The LCSW testified that she verbally informed the client that information regarding the counseling compliance would be shared with the PO and the court system, and the client verbally acknowledged understanding.
The LCSW initiated weekly counseling sessions with the client and informed the client that joint sessions with her ex-husband and minor children would also be required as part of the process for reunification with her children. The client agreed to participate in a joint session, however, there was no discussion regarding who would be scheduling the meeting. The LCSW subsequently contacted the client’s ex-husband to discuss custody status and to schedule the session. The LCSW did not obtain written authorization from the client to communicate with her family members prior to this contact. Although the client had agreed to a joint session, she later testified that she was unaware that the LCSW was communicating directly with her ex-husband to arrange the session, as this had not been explicitly discussed
During the joint counseling session, visitation and living arrangements were discussed. When the client disclosed that her new partner had moved into her apartment, a dispute arose regarding custody, and the client’s ex-husband abruptly left the session. The LCSW advised the client that this change in living arrangements would delay reunification with her children. The client became visibly upset, used profanity, and made statements the LCSW perceived as threatening. The LCSW later testified that the client attempted to hug her at the conclusion of the joint session, which she interpreted as intimidating behavior. In contrast, the client testified that physical contact in the form of hugging occurred after each session and was mutually accepted, and she denied that the physical contact was intended to be threatening.
Concerned for her safety, the LCSW canceled all future counseling sessions with the client, verbally reported the incident to the PO and declined to continue counseling the client unless a joint meeting with the PO occurred and a behavior agreement was obtained. The client refused to attend such a meeting without her attorney present, and, in response, the LCSW abruptly terminated the counseling relationship. As a result of the LCSW’s report of the client’s threatening behavior to the PO and the client’s refusal to attend a joint meeting without an attorney, the PO deemed the client non‑compliant and revoked probation, resulting in incarceration for approximately 30 days.
Risk Management Comments
Six months after the probation period ended, the client filed a lawsuit naming the LCSW, PO and the DOC asserting wrongful incarceration, reputational harm, emotional distress and estrangement from her minor children.
Specific assertions against the LCSW included the following:
- Improper disclosure of confidential counseling information to the PO, court, DOC, and third parties without a valid, executed release.
- Breach of confidentiality under the National Association of Social Workers Code of Ethics, HIPAA, and the state Social Worker’s Act.
- Collusion with the PO to cause probation revocation.
- Boundary violations evidenced by engaging in improper physical contact with the client after each session.
- Improper sharing of confidential information with the client’s ex‑husband and children resulting in a delayed reunification.
The plaintiff admitted in her testimony that she was aware that the LCSW was communicating with the PO but was under the impression that it was limited to confirmation of her attendance and participation in counseling. She also testified that she considered the counseling a “safe haven” and believed that what she shared in the sessions would be confidential. The LCSW testified that her belief was that she was not only allowed but was required to provide the court and PO information regarding the client’s progress and compliance in court-ordered counseling. However, she did admit that she should have obtained the client’s written consent to release confidential information.
Defense experts specializing in forensic social work were able to support the counseling provided by the LCSW with regard to the therapy provided for depression, anxiety, and anger management. The experts agreed with the LCSW that there was an implicit informal understanding with the client that she was informing the court simply that the client was attending counseling sessions – however, the experts were critical of the LCSW ‘s failure to obtain the client’s written consent to release additional confidential information to the PO and the client’s family members. The experts opined that the existence of a DOC release only allowed the LCSW to confirm to the court that the client was attending counseling and that this release was not intended to allow her to share confidential information with any parties.
During discovery, the plaintiff was able to obtain multiple informal emails exchanged between the LCSW and the PO which insinuated that they may have been “friends” outside of the work environment. These emails also revealed that the LCSW was providing advice to the PO on how to craft letters to the court regarding probation violations. Although the LCSW maintained that her relationship with the PO was strictly professional, the defense team viewed the optics of the familiarity with the PO to be a significant defense challenge.
Resolution
The above-mentioned departures from the standard of care regarding disclosures of confidential client information presented significant challenges for the defense. The defense concluded that it was likely that the plaintiff’s expert testimony would convince a jury that the LCSW’s disclosures were inappropriate.
Total Incurred: Given these defense challenges and the reduced likelihood of a favorable jury verdict, the matter was resolved through mediation, resulting in a negotiated settlement with a total incurred of more than $170,000.
(Figures represent only the payments made on behalf of the LCSW.)
Risk Management Recommendations for Counselors to Consider
- Adhere to professional standards, ethical guidelines, and applicable state and federal laws when addressing confidentiality issues with clients. (See NASW Code of Ethics 1.07)
- Be aware of potential conflicts of interest when providing services to multiple clients who have a relationship with one another. (See NASW Code of Ethics 1.06.d) Keep in mind that confidentiality restrictions apply to all clients and prohibit sharing information obtained confidentially.
- Be aware of potential conflicts of interest with other providers of services to clients and consider referring to another provider if you are aware of any possible conflicts of interest.
- Conduct an informed consent discussion which includes communication about confidentiality requirements and the potential ethical and legal limitations. (See NASW Practice Standard for Clinical Social Workers #5 ) Obtain the client’s written consent and document the discussion in the healthcare information record. (See NASW Code of Ethics 1.01) If providing service to multiple clients who have a relationship, be clear about the confidentiality implications when conducting the informed consent discussion(s) and make sure to document the same.
- Retain all consent forms in the healthcare information record in accordance with state-specific statutes and include an expiration date. Renew consent forms at least annually, and more frequently if circumstances change.
- Document pertinent information for all client interactions contemporaneously and factually, as comprehensive documentation is the best proactive legal defense. Develop a standardized practice for documentation in the healthcare information record to ensure that the documentation reflects the services provided and includes references to the treatment plan and client progress toward goals, whether the session was conducted in person or via telehealth. (See NASW Practice Standard for Clinical Social Workers #8)
- Follow appropriate standards and guidelines for terminating the client relationship. Discuss the termination with the client and provide appropriate referrals to ensure continuity of care. (See NASW Practice Standard for Clinical Social Work #13) Documenting your reasons for termination can prove helpful for defense against an accusation of wrongful termination. Be knowledgeable about your State and NASW guidelines outlining when termination is and is not warranted (See NASW Code of Ethics 1.17).
- Maintain appropriate boundaries with clients and limit physical contact to avoid the possibility of harm and risk of misinterpretation. (See NASW Code of Ethics 1.10) The NASW Code of Ethics discourages any physical contact with clients, even if there is no improper intent.
Disclaimer
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