AVOIDING LIABILITY BLOG

Immunity from Liability

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Avoiding Liability Bulletin – January 2021

 

NOTE: This article was first published on the CPH and Associates’ website over twelve years ago (June 2008). It is republished here with minor changes. While avoiding liability is the goal of all practitioners, that goal is not always met. Sometimes, practitioners engage in intentional wrongdoing (e.g., insurance fraud or sexual relations with a patient). Practitioners may sometimes use judgment that is below the standard of care of the reasonably prudent practitioner of the same or similar licensure and under like circumstances. If there are statutes that grant immunity from liability, practitioners should, when appropriate, want to take full advantage of the protections offered. This article explains some of the more common immunities that may exist under state law.

 

IMMUNITY FROM LIABILITY

Mental health practitioners typically purchase malpractice insurance in order to protect themselves from claims and lawsuits seeking monetary damages and alleging, among other things, that the practitioner was negligent (by acting in a certain manner or by the failure to act in a certain manner) with respect to the treatment of a client or patient. If negligence is proven, or is arguable, the practitioner may have liability (that is, responsibility to pay money damages). Plaintiffs’ lawyers can allege theories of negligence (or intentional misconduct), sometimes inventively, in their efforts to establish liability. In most states, practitioners are granted “immunity from liability” in limited circumstances. It is useful to know when immunity from liability may be available, how one obtains it, and what it actually means.

Immunity from liability essentially means that one is not subject to a lawsuit or to monetary liability if the circumstances extant meet the requirements of a particular statute granting immunity. When it is said that one is not subject to a lawsuit, it must be remembered that generally, anyone can sue anyone else for anything. A statutory grant of immunity would mean that once a lawsuit is filed and served, the lawsuit can be dismissed forthwith upon the proper request (e.g., a motion for summary judgment) by counsel for the person entitled to the immunity. If one is not covered by a grant of immunity, this generally means that the case will not be dismissed at an early stage of the proceedings and that the issue of negligence, and the resulting liability if one is found to be negligent, will be determined at trial by either judge or jury.

Immunity from liability is created by statute. It is the exception rather than the rule. It is not easy for immunity statutes to be passed by state legislatures because associations representing trial lawyers will usually lobby intensively to prevent or limit the grant of immunity. Trial lawyers generally favor a public policy that allows for the filing of lawsuits without limitation or interference, and the trial of those lawsuits without the threat of a premature dismissal as the result of a statutory immunity. In order for an immunity statute to be passed, there will generally need to be a strong public policy interest demonstrated in order for a legislature to grant immunity to a particular kind of “actor.” There are immunities granted in law to a variety of “actors,” such as judges, law enforcement officers, governmental entities or individual office-holders, “good Samaritans,” and health care practitioners.

With respect to licensed mental health practitioners, one of the most common immunities granted by state law is the immunity from civil or criminal liability for reporting (as required or authorized) known or reasonably suspected child abuse or neglect. Each state’s law may be worded differently, and nuances exist between the various state laws. For instance, in one state the immunity applies whether or not the therapist was negligent in determining that a report must be made. The immunity in this particular state is absolute, and would apply even if the therapist was grossly negligent. Additionally, the immunity applies if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment, but nevertheless filed a child abuse report (although not required). How broad is the immunity for reporting child abuse or neglect in the state in which you practice?

Another common immunity granted to licensed mental health practitioners may be found in the “elder” or “dependent adult” (or similar title) abuse reporting laws. This immunity will usually be patterned after the immunity granted in the case of child abuse reporting, but it need not, nor may not, be identical. Another area of the law where one may find an immunity granted (by statute) to psychotherapists involves dangerous patients. In California, where the famed Tarasoff case was decided by the California Supreme Court in 1976, there is a later-enacted statute that provides immunity from monetary liability to therapists who, under specified circumstances, take certain actions in order to prevent the patient’s threatened violence.

With respect to the specific actions that must be taken in order to obtain immunity from liability, the statute provides that the therapist must make reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. If the therapist complies with the statute, assuming that the therapist’s actions have been triggered by the communications of the patient to the therapist of a serious threat of physical violence against a reasonably identifiable victim, the therapist will have no monetary liability and a cause of action “shall not arise.” Consider the case where the therapist does notify or inform law enforcement of the threat but is aware that the police are not going to do anything – despite the notification by the therapist. Assuming that the therapist should have then hospitalized the patient when the police indicated that they would not act, the therapist should nevertheless be entitled to immunity from liability under the statute (assuming reasonable attempts to notify the victim were also made) – even if the failure to hospitalize constituted negligence.

Under this California statute, the failure to make reasonable efforts to communicate the threat to the victim and to a law enforcement agency does not necessarily mean that the therapist was negligent, or that the therapist will be held liable. It simply means that the therapist will not be entitled to the immunity granted by the statute, and therefore, the case may proceed to trial or be settled. As to the issue of whether or not the therapist acted reasonably or negligently, a judge or jury may ultimately decide the matter. In many of these cases, therapists will decide to hospitalize patients. While hospitalization may constitute reasonable action, and while the therapist may ultimately be found to have acted without negligence, there is no immunity from liability (because the California statute has not been followed). In other states, however, hospitalization of the patient may entitle the practitioner to immunity from liability. Additionally, some states may offer immunity if only the intended victim is notified of the threat (e.g., no notification of law enforcement). Practitioners must carefully examine the immunity statute in the state in which they practice in order to determine what actions may result in immunity.

There may be a variety of other immunities in state law that, in one way or another, affect mental health practitioners, although they are not often discussed. For instance, in some states, there may be immunity granted to persons who serve on professional association ethics committees or other peer review committees – under specified circumstances and with specified limitations. Likewise, there may be some immunity for persons who communicate with specified educational institutions about the character or fitness of persons pursuing a license to practice in a health care profession, or for communications with health care licensing boards investigating a complaint. In some states, professional associations may have immunity from liability for operating a referral or information service for the public.

It is important to remember that with each grant of immunity there will likely be limitations or exceptions. Careful attention must therefore be given to the terms and conditions of the immunity statute involved. While it is advantageous to have immunity from liability, it also should be remembered that if immunity from liability does not apply, this does not necessarily mean that the therapist or counselor will later be held liable. It simply means that the case will likely not be subject to early dismissal and that it may proceed to a trial. Of course, the vast majority of lawsuits are eventually settled (where immunity from liability does not apply).

ABOUT THE AUTHOR

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Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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