550LR

25

2

Negligence in Professional Practice

We noted in Chapter 1 that mental health practitioners are subject tonegligence liability when their practice deviates from professionally accepted practice (the standard of care) and a client is harmed as a result. In

this chapter, we look at each of the four apparently simple elements of neg-

ligence, the tort that accounts for the vast majority of malpractice actions:

(a) duty, (b) breach of duty, (c) causation, and (d) damages. In practice they

are not so simple.

THE STANDARD OF CARE: DUTY AND THE BREACH OF DUTY

The phrase standard of care is commonly used to describe the duty a profes-

sional owes to a client. This basically means doing what a reasonably care-

ful practitioner would do under the circumstances. In the case of a

specialist, the standard of care is increased to what a reasonably careful

practitioner of that specialty would do under the circumstances. This

means that the practitioner is being judged against prevailing professional

standards (Belar & Deardorff, 2009). For instance, a psychologist whose

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 25

http://dx.doi.org/10.1037/12320-002 Malpractice in Psychology: A Practical Resource for Clinicians, by D. L. Shapiro and S. R. Smith Copyright © 2011 American Psychological Association. All rights reserved.

Co py

ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

client with borderline personality disorder has a poor outcome would be

judged against standards of an average professional, not against a standard

of the most outstanding, well-established practitioner.

In most cases, a therapist’s legal duty of care is to the client, not to third

parties or to society in general. It is therefore critical to know whether a ther-

apy relationship exists (something we consider in detail in Chapter 3). As

readers will see, the law is also now recognizing some duty to third parties

when a client may harm them.

Applying the Standard of Care

The concept of a legally acceptable standard of care may seem ambiguous

to psychologists. It is true that there is often no bright line that defines what

is acceptable and what is not, but that often works to the advantage of the

psychologist in malpractice cases.

It may be helpful to think of the standard of care as reflecting a level of

practice that is acceptable within the profession itself. The negligence may

be by commission (the therapist did something that she or he should not

have done) or omission (the therapist failed to do something that she or he

should have done). The psychologist need not have picked the “best” option

for treatment; he or she needs only to have acted within the range of what

a reasonable practitioner would have done under the circumstances. Bad

results sometimes occur even in the absence of any negligence, so bad

results alone do not prove negligence. A client may commit suicide even

after receiving good care (Baerger, 2001). Furthermore, even when a psy-

chologist makes a mistake, that is not sufficient to prove negligence; in other

words, not all mistakes occur because of negligence. There are reasonable

and unreasonable mistakes; a reasonable mistake is one that a careful prac-

titioner could have made under the circumstances.

The standard of care commonly includes a range of options for treat-

ing a client. In psychology there often is not a single professionally accepted

approach to treating a client’s problems. Within mental health care there

are often various approaches to dealing with a disorder. These are called

schools of thought in malpractice cases. Adding the concept of school of

thought to the negligence definition would make it this: “Is what the psy-

M A L P R A C T I C E I N P S Y C H O L O G Y

26

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 26 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

chologist did consistent with what a reasonable practitioner of a legitimate

school of thought would have done under the circumstances?” Practition-

ers ordinarily are held to the professional standard of care of the school of

thought to which they belong (see Standard 2.04, “Bases for Scientific and

Professional Judgments,” of the American Psychological Association’s

[APA’s, 2010] “Ethical Principles of Psychologists and Code of Conduct”;

http://www.apa.org/ethics/code/index.aspx). A cognitive behavioral ther-

apist and a psychoanalytically oriented therapist would be held to the stan-

dards of their own schools of thought. Many conditions do not have good

comparative data on the efficacy of various approaches, so there are many

accepted positions on appropriate treatment. Courts have sometimes held

religious counselors to a different standard because they endorse a school

of thought that combines religion with therapy (Young & Griffith, 1999).

It is often difficult to establish a clear standard of care in the mental

health disciplines. As of 1990, there were more than 200 schools of thought

(S. R. Smith, 1991, p. 214) regarding mental health practice. A more recent

estimate is that now there are 250 (Parry & Drogin, 2007).

A psychologist need not adhere to a single school of thought for every

condition, or even for every client. Mental health professionals may adopt

an eclectic approach to different conditions or different clients, but they are

expected to be proficient in whatever approach they use.

The other side of the school-of-thought coin is that professionals can be

held responsible for having any special skills, training, or knowledge that

they claim to have. This is called holding oneself out liability; that is, if a ther-

apist has claimed an expertise as a specialist—say, in child psychology—

then that therapist is going to be held to the standard of an expert or

specialist in child psychology, regardless of whether the therapist has such

expertise. Standard 2.01 (“Boundaries of Competence”) of the APA Ethics

Code addresses issues related to expertise and training as they relate to com-

petence. The public should be able to depend on the claims professionals

make about their abilities, and one way the law enforces this is to hold pro-

fessionals to an especially high standard of care that they claim to have.

There have been assertions that with the advent of evidence-based

practice/empirically supported treatments there really is only one “best”

way of treating a given condition. This is not yet the case. The vast body of

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

27

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 27 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

research pointing to the importance of the personal relationship in psy-

chotherapy suggests that it is not so simple to distinguish acceptable and

negligent treatment (APA, 2006). The time may be coming, however, when

the range of acceptable treatment approaches will become limited.

Some caution is necessary in applying the school-of-thought doctrine.

For a school of thought to be considered acceptable, it has to be supported

by a “respectable minority” in that it has a fair number of adherents. It also

should have some empirical, professional, or scientific basis. There are

examples of unacceptable schools of thought that lack such support. Despite

the successful U.S. prosecution of Wilhelm Reich in 1947 for fraud regard-

ing his marketing of the orgone box—a cabinet-like structure that Reich

claimed could store so-called orgone energy to clients who sat in it and thus

alleviate the symptoms of a number of ailments, including the common

cold—there are still people practicing with the use of orgone boxes and

a number of websites dedicated to advertising them (e.g., http://www.

orgonomy.org, http://www.orgonomicscience.org). In a similar manner,

there are websites dedicated to the sale of “immersion tanks,” in which

clients are suspended in warm water, for the purposes of re-creating cer-

tain prebirth experiences. An attempt at “rebirthing therapy” resulted in criminal charges against a therapist who wrapped a client tightly in blan-

kets, ultimately resulting in the client’s death (State v. Watkins, 2003). This

case resulted in a finding of involuntary manslaughter based on “reckless

indifference” and could well have been a case of malpractice litigation,

with the plaintiff asserting that such treatment was a negligent deviation

from accepted standards of treatment and was the proximate cause of the

client’s death.

A number of therapists in the 1990s became specialists in “recovered

memory treatment,” which dealt largely with recovered memories of

childhood abuse. Although there is certainly a vast body of solid empiri-

cal literature dealing with the validity of childhood trauma and legitimate

trauma-based therapy (Courtois, 1999; Pope & Brown, 1996), some of the

techniques designed to “recover” the memories had scant, if any, empiri-

cal basis. Various therapists were hypnotizing clients to “break down”

their defenses against repressed memories (Ramona v. Isabella, 1994; see

also Johnston, 1997). This is an example of using unvalidated techniques

M A L P R A C T I C E I N P S Y C H O L O G Y

28

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 28 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

that could cause a great deal of harm. In a number of these cases, for

instance, plaintiffs have had some limited success in malpractice actions

against therapists who “assisted” clients in “recovering” memories of sex-

ual abuse by their family members (Hungerford v. Jones, 1998; Sawyer v.

Midelfort, 1999).

There are other limitations on the school-of-thought standard of care.

Practitioners in any school of thought must recognize the limitations on

their own school of thought’s ability to deal with certain problems and be

prepared to refer clients to more appropriate services. For example, a prac-

titioner who specializes in biofeedback would not want to use that tech-

nique with an imminently suicidal client. A physician would not want to

prescribe electroconvulsive therapy for someone with Alzheimer’s disease,

because it is not an effective treatment for that condition; neither would a

physician prescribe it for someone who has significant organic impairment,

because such a treatment might cause further harm. In the same manner,

a therapist would not want to embark on a course of insight-oriented depth

therapy with a client who is so fragile that she or he needs some form of

supportive psychotherapy. The therapist also would not want to use such

depth therapy with someone who has limited intellectual functioning,

because it would be ineffective. Note that for any form of nontraditional

treatment informed consent becomes especially important (Frank, Gupta,

& McGlynn, 2008).

Finally, an entire school of thought can be negligent because its approach

is unnecessarily risky (e.g., treating a suicidal client with a highly confronta-

tional approach) (Helling v. Carey, 1974). In addition, of course, profession-

als must be proficient in whatever approach or school of thought they are

using as a basis for their work; they must know what they are doing and

apply the approach correctly.

We have noted that the standard of care is doing what a reasonably care-

ful practitioner would do under the circumstances but have not considered

what the phrase “under the circumstances” means in malpractice. In an

emergency, for example, there may be no opportunity to conduct the same

range of tests that would ordinarily be possible. This does not excuse the fail-

ure to prepare for emergencies. Psychologists must have the appropriate

materials, equipment, or support for unexpected events and refer clients to

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

29

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 29 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

other professionals when that is appropriate (Packman, Andalibian, Eudy,

Howard, & Bongar, 2009).

The “under the circumstances” concept may also apply when special

facts make strict adherence to ordinary standards unnecessarily confining.

For example, as a general rule, a therapist needs to maintain firm bound-

aries and make clear to a client that their relationship is one of therapy, not

one of friends or teammates. Consider, however, a therapist who has a

resistant adolescent client who happens to be an excellent basketball player.

Shooting a few hoops with that client may be perfectly appropriate as long

as the therapist notes what the expected boundaries might be and why he

or she is departing from the standard practice (O’Laughlin, 2001). Practi-

tioners need to document why they acted in a nontypical manner, with, for

example, a statement in the client’s chart describing why they took the

action they did. In our example, the practitioner should note that the client

was resistant and that the basketball playing was a way of overcoming the

resistance.

In the past, a locality rule—stating that the standard of care was defined

by the quality of practice in the psychologist’s specific geographic location—

was commonly applied in malpractice suits (Sorrel, 2010). In theory, at least,

the practice of therapy in a large metropolitan area with many available

resources may not be applicable to therapy in a rural area that has few avail-

able resources. The locality rule is still followed in some form in a minority

of jurisdictions, but the concept has been largely discredited (Lewis, Goha-

gan, & Merenstein, 2007). Courts generally apply a national standard in

which practitioners are expected to be aware of appropriate practice,

whether in a large metropolitan area or a small village.

Proving the Standard of Care

The question of determining what a reasonably prudent practitioner would

do under the circumstances is a critical element in any malpractice case. In

a few cases, it is apparent: A therapist who has sex with a client clearly has

acted beyond what is professionally acceptable. In most cases, the courts rely

on expert witnesses to describe what is professionally acceptable practice

M A L P R A C T I C E I N P S Y C H O L O G Y

30

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 30 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

(Ash, 2010). Formal professional standards and publications may also be

helpful in defining the standard of care (Recupero, 2008).

The use of expert witnesses is intended to help the jury understand

professional and scientific issues that are beyond the understanding of the

lay public. Sometimes, however, it leads to a “battle of experts” in which

one mental health professional testifies that what the defendant did is per-

fectly acceptable, whereas another says that it is outside any professionally

accepted practice.

The problem of having experts testify in regard to the standard of care

is illustrated by a case in which a defendant was referred for a pretrial exam-

ination of competency following a charge of aggravated assault. Although

he was found competent to stand trial and criminally responsible, the psy-

chologists and psychiatrists believed that he had borderline personality

disorder and recommended that he receive treatment in the future. He

was discharged from the hospital after approximately one month, pleaded

guilty, and was placed on probation with mandatory therapy as a condition.

Approximately 14 months after his discharge, he killed several family mem-

bers and himself. A surviving sister filed suit against the hospital, alleging

negligent diagnosis. A psychiatrist testified as an expert witness that the hos-

pital was negligent because it failed to accurately diagnose the fact that this

young man suffered from a “negative Oedipus complex,” and maintained

that had this situation accurately been diagnosed the tragedy would have

been averted. This testimony was unpersuasive because of a reasonably clear

standard of care for conducting such assessments and well-documented evi-

dence that the staff adhered to these standards.

It is important that the triers of fact (judges and juries) not be misled

into believing that there is only one way in which a particular treatment can

be carried out or in which a particular battery of psychological assessments

can be conducted. Practitioners and the legal system appropriately take into

account individual differences in approach, administration, and interpreta-

tion. All clients are not the same, and all clinicians are not the same. The

treatment plan must take into account individual differences.

Any insistence on a rigid, cut-and-dried approach to psychological

assessment and intervention does not accurately reflect the current state of

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

31

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 31 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

psychological practice. It is critical that triers of fact understand this princi-

ple. Expert witnesses play an important role in helping juries and judges see

the range of legitimate care in psychology.

The professional literature may also help establish a standard of care.

Not everything written is authoritative, of course, but literature accepted by

the defendant (or, in a few cases, even written by the defendant) or demon-

strated as authoritative may also be used to establish good practice or the

standard of care (Recupero, 2008).

Another form of evidence about the standard of care are the standards

officially adopted by professional organizations. For example, the stan-

dards and guidelines promulgated by such professional organizations as

APA (2006) may sometimes be viewed as formal establishment of such stan-

dards. There is a good argument that the mental health profession should

promulgate documents that can address standards of care in various disci-

plines of psychology (Hedges, 2007). These standards certainly can be flex-

ible enough to account for individual variations in practice style while at the

same time stress the essentials of the practice in an area.

Some individuals maintain that the more standards and guidelines

there are, the more ammunition a clever plaintiff’s attorney has to use

against therapists (Recupero, 2008). In the absence of such standards,

though, juries will be left without sensible professional guidance when they

have to apply the standard of care in malpractice cases. It is a mistake to

believe that because only the formal standards of the APA Ethics Code

are enforceable, and the principles, or guidelines, are aspirational, they do

not have to follow the guidelines. If there is litigation, the therapist is sure

to be asked why she or he did not follow the guidelines, and, absent

extraordinary circumstances, the answer often appears to a trier of fact

(judge or jury) to be defensive and unpersuasive.

Expert witnesses often have some documented body of literature, com-

monly based on research, clinical practice, guidelines, standards, or codes

of ethics, that provides the basis for their testimony regarding standard of

care. Avoid the idiosyncratic standard-of-care pronouncements of so-called

experts described earlier in the example dealing with the negative Oedipus

complex. An attorney representing a defendant psychologist in such a case

M A L P R A C T I C E I N P S Y C H O L O G Y

32

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 32 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

should demand that the plaintiff’s expert specify the body of literature on

which that expert is opining that the defendant psychologist deviated from

the standard of care.

Hindsight bias also works against the professional in malpractice cases

(Wexler & Schopp, 1989). After something has occurred, it is always easier

to go back and point out what people have “obviously missed” or that there

must be a causal connection (not just a correlation) between a mistake and

a bad outcome. Once an unfortunate act has occurred (e.g., a client com-

mits suicide, or assaults someone), it is very easy for an expert witness to

review the record and find something that was missed or not done properly.

It should be clear that the standard of care is based on what the practitioner

knew at the time, not what someone looking back on the situation with the

benefit of hindsight states that it should have been.

CAUSATION

Negligence, regardless of how far it deviates from good practice, results in

liability only if the plaintiff can demonstrate that the negligence caused a

legally recognizable injury. Causation is frequently a major issue in men-

tal health malpractice cases because the cause of a mental injury is often

hard to pin down. The plaintiff has the burden of proof. If it is not possi-

ble to determine, directly or by implication, what caused the injury, the

plaintiff loses.

In establishing causation, experts again play an important role. Experts

are commonly called to testify whether, in their professional judgment, an

injury or harm was a result of (i.e., caused by) the therapist’s negligent treat-

ment. These are frequently professional judgments about which there are

reasonable disagreements, resulting in the judge or jury having to decide the

complicated question of causation.

Lawyers commonly divide causation into two parts: (a) causation in fact

(also called but-for causation) and (b) proximate or legal causation. Causa-

tion in fact means that the injury would not have occurred “but for” the neg-

ligence of the defendant—for example, the pedestrian would not have been

hit but for the defendant’s negligence in running the red light. Proximate or

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

33

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 33 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

legal causation is an elusive and difficult concept that in essence means that

there was a sufficient nexus or legal connection between the defendant’s

negligence and the plaintiff’s injury. Not to simplify the concept too much,

it is a way of saying that there has to be some reasonably close or direct con-

nection between the negligence and the injury (Williamson v. Liptzin, 2000).

The difficulty of proving causation and the attendant difficulty of a

judge or jury making a determination of causation are demonstrated by the

case of a psychologist who was seeing a woman in therapy who complained

of depression, loss of appetite, nausea, and headaches. The therapist told her

it was not necessary to have a physical exam, that the physical symptoms

were all related to the depression. In 3 months, the woman needed to be hos-

pitalized and was diagnosed with Hodgkin’s disease. She died 1 month

later. The family sued the psychologist, maintaining that the standard of

care dictated that he refer her for a full medical workup given her symp-

toms and that his failure to do so was the proximate cause of her death. A

psychologist retained by the plaintiff testified that this failure to refer was a

deviation from the accepted standard of care. The physician retained by the

defense stated that early intervention would not have been effective in sav-

ing the woman’s life because she suffered from a particularly virulent form

of Hodgkin’s disease that would not have responded even to the most

aggressive treatment. The physician retained by the plaintiff contended that

early intervention could have saved her life. The judge found that the psy-

chologist was negligent in failing to refer the woman for a physical exami-

nation but that the plaintiff had not carried the burden of demonstrating

that the failure to refer was the proximate cause of her death. Causation

requires that the negligence has to be a major contributing factor to the ill-

ness or injury.

It is important for practitioners to rule out any physical condition that

could either be causing or related to certain mental health problems. The

same holds for the physiological effect of certain substances. As an exam-

ple, panic attacks or other forms of severe anxiety can be related to a thy-

roid disorder or to some kind of hormonal imbalance. Depression, as well,

can be related to thyroid problems. Even if a practitioner is not intimately

familiar with the psychological presentation of many different mental dis-

M A L P R A C T I C E I N P S Y C H O L O G Y

34

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 34 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

orders, she or he needs to be familiar enough at least to know when to refer

a client for a medical consultation prior to undertaking therapy.

There are many pitfalls when a plaintiff is trying to assert that the prac-

titioner’s behavior is the cause of harm or injury. The causes of emotional

and psychological injuries are especially difficult to pinpoint. Clients come

to therapy with various mental and emotional problems at the outset, which

raises the issue of causation in that there is a preexisting injury or a particu-

lar sensitivity or susceptibility to additional injury.

DAMAGES

The monetary damages in mental health malpractice cases vary consider-

ably depending on the nature of the malpractice claim. Both economic and

noneconomic compensatory damages, however, are common in malprac-

tice cases. In many mental health malpractice cases there is no physical

injury, but significant damages are still possible. Consider a hypothetical

case in which there has been a wrongful breach of confidentiality whereby a

therapist has revealed private information to a client’s employer, resulting

in the client’s dismissal from her job. The damages may comprise not only

the lost earnings from the job but would also include the potential for sub-

stantial emotional suffering, embarrassment, possibly a loss of reputation,

and perhaps the cost of additional therapy.

When there is physical injury, damages may be considerably greater.

Consider a personal injury case in which a therapist has ignored a believable

suicidal threat and negligently failed to provide appropriate treatment,

resulting in the suicide of the client. In such a case, damages will likely be

awarded for medical expenses, the loss of earning capacity of the client, pain

and suffering, and emotional distress. The spouse of an injured or deceased

client may sometimes be awarded damages for loss of services (companion-

ship, sexual relations, and affection).

Some of these compensatory damages in malpractice cases can be deter-

mined with specificity. Past medical expenses or lost wages to date may

be fairly clear. Other expenses are somewhat speculative; for example, future

medical expenses or the value of wages likely to be lost in the future are

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

35

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 35 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

predictions of the future course of the plaintiff’s care and recovery. Other

damages, most notably noneconomic damages for pain and suffering, are

highly speculative. Juries (or judges, when the case is tried without a jury)

have considerable latitude in determining the appropriate value of the

pain and suffering. Such discretion is not unlimited, however, and judges

or appellate courts are empowered to reduce or reverse excessive damages.

Noneconomic damages tend to fall within ranges that experienced insur-

ance adjustors and trial lawyers can predict with some degree of accuracy.

Punitive damages are generally permitted in malpractice when there

has been outrageous conduct, but they are not common. Such damages

may be warranted, for example, when a therapist’s repeated sexual involve-

ment with a client during therapy resulted in the client’s deterioration and

hospitalization.

Nominal damages are usually not sufficient to support recovery by

the injured plaintiff in negligence cases, although they may be sufficient

to “win” in intentional torts. (Nominal damages are a small amount—

say, $1—to show that the plaintiff was right but that there was not an

actual loss.)

DEFENSES

Many defenses are available to the practitioner in a malpractice case. Some

procedural defenses, for example, preclude a court from hearing a claim. In

others, called substantive defenses, the practitioner argues that one of the

required elements of a tort action, such as causation, is missing. There also

are a number of legal immunities. For example, an expert witness may have

immunity for testimony given in court, even if it is otherwise defamatory

(Greenberg, Shuman, Feldman, Middleton, & Ewing, 2007).

Complete defenses defeat the tort liability that the plaintiff is seeking so

that there is no liability. There also are partial defenses, which do not pre-

clude damages but reduce damages for which the therapist is responsible.

The notable example is comparative negligence (the plaintiff’s own negli-

gence contributed to the injury discussed in more detail later in this chap-

ter), which can be important in mental health liability cases.

M A L P R A C T I C E I N P S Y C H O L O G Y

36

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 36 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

The nature of the defenses available, of course, depends on the cause

of action on which liability is claimed. For example, in a hypothetical fed-

eral civil rights case (i.e., based on Title 42, U.S. Code § 1983, “Civil Action

for Deprivation of Rights”) by a state prisoner claiming a constitutional

violation because of failure to provide sound psychotherapy, the prison and

the therapist could defend by claiming that there was not “deliberate indif-

ference” to the prisoner’s condition (the federal constitutional standard for

liability; Parry, 2010). Such a defense would not be available in an ordinary

negligence malpractice case.

A case based on contract requires that there be an agreement (offer and

acceptance) creating legal duties. Therefore, a defense might be that there

was no offer; this would not be relevant to tort cases where liability is not

based on the existence of a contract.

In a battery case, for example, a defense that there was not “intent” to

strike the defendant would be available, but because intent is not required

for a negligence action it would not be a viable defense for negligence.

Because negligence is the common basis for mental health malpractice, the

discussion that follows focuses on defenses for negligence.

In any cause of action the plaintiff is responsible for proving, by a pre-

ponderance of the evidence (more likely than not), each of the elements of

that legal action. In a negligence case, for example, that would mean prov-

ing duty, breach of duty, causation, and injury. If the plaintiff fails to prove

any one of the elements, the entire case fails and the defendant wins. In neg-

ligence, for example, failure to demonstrate that the practitioner caused the

injury would defeat the claim for liability, even though the practitioner had

in fact clearly been negligent. In the case noted earlier in this chapter of the

woman with Hodgkin’s disease, for instance, although the psychologist was

found negligent (he failed to refer her for a timely physical evaluation), this

was not seen as the proximate cause of her death.

Although the plaintiff generally has the burden of proving all of the

elements of a claim by a preponderance of the evidence, in the event of

affirmative defenses (e.g., self-defense) and some immunity claims (e.g.

governmental or sovereign immunity), the burden of proof may be on the

defense to prove that the exception to liability is warranted. Similarly,

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

37

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 37 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

when the defendant/practitioner is trying to establish that the negligence

of the plaintiff/client contributed to the injury, the defense may be

required to prove both the plaintiff’s negligence and how it contributed to

the injury.

In the next section, we summarize the defenses commonly used in

malpractice cases.

Procedural Defenses

Examples of procedural defenses include the following:

� The court does not have legal jurisdiction over this case or over the defen-

dant. A court cannot hear a case unless it has both subject matter jurisdic-

tion (i.e., it is permitted by law to hear this kind of case) and personal

jurisdiction (i.e., the court has sufficient contact with the defendant to jus-

tify exercising jurisdiction over the defendant). A Pennsylvania state

court cannot, for example, claim jurisdiction over a psychologist from

California for, say, treating a client in Massachusetts when the psycholo-

gist has not had any contact with Pennsylvania.

� The statute of limitations (the time following an injury during which a

defendant may file an action) has expired, and the court may no longer

entertain the claim. States place limits on the time during which malprac-

tice claims can be brought (Parry, 2010). They also define circumstances

(e.g., the plaintiff being a minor or incompetent) under which the statute

of limitation is tolled, or stops running temporarily.

� The specific claim that the plaintiff is making is not legally recognized.

Not every wrong has a remedy. The law recognizes only specific causes of

action, and a case will ordinarily be dismissed if the plaintiff’s claim does

not fall within one of these actions.

Substantive Defenses

Many of the substantive defenses fall into the category of “one required ele-

ment of negligence liability does not exist.” Indeed, in most malpractice law-

suits this is what the case is about.

M A L P R A C T I C E I N P S Y C H O L O G Y

38

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 38 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

� There was no duty to this person (the plaintiff). There has to have been a

professional relationship between the plaintiff and the defendant. Often

the relationship is clear because there is a mutual expectation that such a

relationship exists. However, when that expectation is not clear, the

defense of “no duty to this person” will be significant. There is some trend

to expand the persons to whom a therapist owes a duty to include iden-

tifiable third parties against whom a client has made believable threats

(Tarasoff v. Regents of the University of California, 1976, a case we dis-

cuss in detail in Chapter 6). This extended-duty concept, however,

remains limited. For the most part, negligence liability is limited to the

client with whom the defendant has a professional relationship.

� The duty of reasonable care under the circumstances was not breached (the

professional acted as a reasonably prudent practitioner). The very essence

of negligence liability is a practitioner’s obligation to act as a reasonably

prudent professional would under the circumstances. There are non-

negligent errors that should not give rise to liability, so the plaintiff must

prove that the mistake was outside reasonable professional judgment.

The question of whether there has been adherence to the standard

of care is one for the trier of fact (the jury or judge) to decide. Thus, a lay

body is ultimately making a judgment on the adequacy of professional

practice. The plaintiff has the burden of proving, usually with expert

witnesses, that the practice of the professional was not consistent

with the standard of care. The defense may challenge the plaintiff’s

expert testimony, so the defense also almost always calls one or more

experts to counter the plaintiff’s experts.

� There was no injury. Proving that there was some injury is ordinarily not

difficult. Proving its severity and knowing how the injury should be val-

ued are difficult in mental health malpractice. The plaintiff must prove

the harm and provide evidence of its severity.

For pain and suffering and other noneconomic damages, plaintiffs

present evidence (including their own testimony) of the nature of the

injury and how it affected their lives. Expert witnesses may be helpful in

providing some information about the nature of certain injuries or con-

ditions. Ultimately, however, the jury is left with the task of trying to put

a monetary value on noneconomic elements of the injury.

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

39

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 39 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

� The negligence did not cause the injury. Causation is a difficult element

for the plaintiff to prove in many mental health malpractice cases.

These cases often involve people who, independent of the malpractice,

are distressed and who have distorted perceptions, difficult interper-

sonal relations, and impairments in their ability to appraise reality. The

plaintiff often has to demonstrate that the impairments did not exist

independent of the negligence and were not due to the natural progres-

sion of the plaintiff’s mental health condition itself. The plaintiff may

seek to demonstrate that the clinician’s negligence exacerbated the pre-

existing condition, but it may be difficult to demonstrate that the wors-

ening of the condition was caused by the negligence and not by some

other factor.

The proof of causation does not have to be by direct evidence but can

be by implication. A review of the client’s history, for example, may suggest

that the client was doing better and had a severe setback only following an

error by the therapist. Good documentation by the therapist may be help-

ful in answering the causation, often in the therapist’s favor. The difficulty

in proving causation is one of the reasons that mental health malpractice

cases are less common than physical health cases.

In practice, there may not always be this nice separation of elements

(duty, breach, causation, and injury) in the minds of jurors, especially when

the damages are great. Poythress (1990) studied this phenomenon and con-

cluded that there is a tendency to confuse standard-of-care issues with other

elements of negligence based on the severity of damages. He suggested in

some cases having bifurcated trials for liability and damages.

Other Defenses

In negligence, the most common affirmative defenses are contributory/

comparative negligence (which we discuss in the next section) and assump-

tion of the risk (the plaintiff voluntarily and knowingly agreed to take the risk

of injury). Other specific defenses are mentioned in this section.

In intentional torts, the primary additional defenses are consent, self-

defense, and necessity. The informed-consent process is a mechanism to

M A L P R A C T I C E I N P S Y C H O L O G Y

40

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 40 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

ensure that the defense of consent is available for battery and other inten-

tional torts (Slovenko, 1998). Self-defense is available when the defendant

(psychologist) reasonably believes he or she is in danger. It is defined as the

amount of force reasonable to defend oneself under the circumstances.

Necessity is involved when it is essential to invade the legal interests of some-

one in an emergency to avoid great harm to persons or property; for exam-

ple, knocking a bystander out of the way to prevent a gunman from firing

into a crowd would be an excusable necessity. Similarly, holding an imme-

diately dangerous client to keep him from detonating a bomb could be a

necessity defense.

The doctrine of sovereign immunity may protect state institutions

and their employees from some liability, or require that the injured per-

son go through an administrative process instead of the tort system. A

client who is injured in a state mental hospital, for example, may be

required to present the claim for damages to a special department or

court of claims rather than to an ordinary court. These processes vary

from state to state. The Federal Tort Claims Act (2010) provides a spe-

cific mechanism for those injured by federal institutions and employ-

ees. In this act, there is a limited waiver of the federal government’s

sovereign immunity when employees are negligent within the scope of

their employment. Most states also waive sovereign immunity to vary-

ing degrees.

In addition, there are a number of immunities that protect clinicians

from liability even if significant mistakes were made. This immunity is often

related to performing certain functions (Huffman, 2008). For example, tes-

timony in court, participating in the civil commitment process, and report-

ing child abuse all have immunities in most states (Hall & Resnick, 2008).

This immunity, however, usually does not extend where there is bad faith

by the therapist.

COMPARATIVE NEGLIGENCE

The defense of comparative negligence arises when the plaintiff was partly

responsible for the accident or harm. In most states this is a partial defense

that reduces damages instead of eliminating liability altogether.

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

41

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 41 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

The law recognizes the basic unfairness of requiring clinicians

to pay the damages when clients have contributed to their own injuries.

Most states, therefore, ask the trier of fact (a judge or jury) to appor-

tion how much of the negligence is due to the therapist’s actions

or inactions and how much is due to the client. The amount that the

client contributed is then subtracted from the portion due to the ther-

apist’s behavior, resulting in the final judgment. When the client has

suffered $100,000 of damages, and the jury decides that the therapist

is liable for 60% of the damages and the client (due to his or her non-

compliance with directions) for 40% of the damages, the amount of

the final judgment against the therapist is $60,000; that is, the $100,000

is reduced by the amount that the plaintiff contributed to the injury

(40%). This process, of course, again asks the jury to undertake a diffi-

cult assessment of relative responsibility, one that can be done only

roughly.

This is called comparative negligence because it compares the relative

fault of the plaintiff and the defendant (Behnke, 2000). It replaced the older

contributory negligence in which if the trier of fact determined that the client

in any material way contributed to the injury, the case was essentially dis-

missed (Slovenko, 2005).

Should the therapist be responsible when a client refuses to adhere to

the established treatment plan? For example, suppose a therapist has

referred a client for a medication evaluation and the client does not go

and subsequently is harmed because he has not taken the medication.

A therapist must be careful to always document not only treatment

progress but also any times and ways in which a client is noncompliant.

For example, if a client did not do regular “homework” in a cognitive

behavioral course of therapy, that should be documented. Another exam-

ple is when a client does not follow through on referrals. If a client is on

medication but deviates from the prescribed dosing regimen, that may

contribute to any injury sustained. These facts, if well documented, can

assist the therapist if the client sues for malpractice. They can help

demonstrate that the harm, in part, came from the client’s noncompli-

ance with treatment.

M A L P R A C T I C E I N P S Y C H O L O G Y

42

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 42 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .

PRACTICAL SUGGESTIONS

1. Quality, ethical, and careful professional practice, consistent with

accepted standards, is the most important element in avoiding malprac-

tice. Psychologists need only to have acted within the range of what a

reasonable practitioner would have done under the circumstances. Bad

results, even mistakes, do not prove negligence.

2. Practice only within your existing competencies, and be up to date in

any area of practice you undertake. Be familiar with the current litera-

ture and ethical standards that would affect your practice.

3. Therapists may choose from any number of legitimate schools of

thought so long as a respectable number of therapists adhere to this

school and it is supported by legitimate empirical, professional, or sci-

entific bases.

4. Hold yourself out as a specialist only if you have advanced and special-

ized training. The law will hold you to a higher level of expertise if you

claim to have it.

5. Expert witnesses are usually called to help the jury understand profes-

sional and scientific issues in determining what is professionally accept-

able practice and whether injuries were caused by the negligence of a

psychologist. It is very helpful if the psychologist has clearly docu-

mented diagnosis and treatment decisions in the client’s record.

6. Professional standards and guidelines promulgated by such profes-

sional organizations as APA may not define completely what is beyond

acceptable practice, but they often contribute to such a definition, and

psychologists should be aware of all such guidelines that affect their

practices.

7. It may be reassuring to mental health professionals to remember that

there are many defenses available to the practitioner in a malpractice

case. Procedural defenses preclude a court from hearing a claim, sub-

stantive defenses are usually based on the claim that an element of a tort

action is missing, and immunities may excuse what would otherwise be

a tort.

N E G L I G E N C E I N P R O F E S S I O N A L P R A C T I C E

43

12452-03_Ch02-rev2.qxd 4/1/11 11:03 AM Page 43 Co

py ri gh

t Am

er ic

an P sy

ch ol og ic al A ss oc ia ti on . No t fo r fu

rt he

r di

st ri

bu ti

on .