AVOIDING LIABILITY BLOG

“Immunity from Liability” vs. “No Liability”

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Avoiding Liability Bulletin – April 2017

Last month I wrote about dangerous patient issues and the nature and breadth of the mental health practitioner’s duty to protect third parties (e.g., members of the public) from the violent acts of the patient. In that article, I wrote about the possibility of obtaining immunity from liability under state law in specified dangerous patient situations. A reader asked me to explain the difference between a practitioner “having no liability” and “having immunity from liability.”

In a typical malpractice case, the practitioner will have no liability if it is ultimately determined that the practitioner exercised due care (the reasonably prudent practitioner under like circumstances test) in the treatment of the patient. Stated otherwise, there is liability if the practitioner is found to be negligent in the treatment of the patient and that the patient suffered harm (physical or emotional) as a proximate result of the negligent acts. These determinations are ultimately made by a judge or jury if and when the case goes to trial. When a claim or lawsuit is initially reviewed, the practitioner’s attorney will make a determination as to whether there is liability – that is, vulnerability to the claim of negligence and the resultant harm. Of course, most claims do not go to trial, but rather, they are settled – either for nuisance value (e.g., to avoid the costs of litigation and to quickly close the case) or for a more substantial amount based upon the degree and nature of the negligence and the extent of the harm.

“Having immunity from liability” typically means that under certain prescribed circumstances (defined in a state statute), a lawsuit, if brought, will not be able to advance to trial and will be summarily dismissed by a court (on a motion by the practitioner’s attorney for summary judgment) at the beginning of the case. The very existence of an immunity statute hopefully prevents or deters lawsuits. But if brought, the practitioner’s attorney would demonstrate that the practitioner took the action(s) required by the immunity statute and would ask the court to dismiss the case. Some areas of practice and law that typically provide immunity from liability for mental health practitioners are the child abuse, elder abuse, and dependent adult abuse reporting laws, and in dangerous patient situations – such as when a patient communicates a threat of imminent physical violence against a third party. The extent of the immunity, and the acts required to be taken by the practitioner in order to get the immunity, are spelled out in the immunity statute. 

SUING THE CLIENT – A RARITY, BUT …

Most mental health practitioners may never find themselves in a situation where they have to decide whether or not to sue a client. But the reality is that there are occasions where a lawsuit is not only seen by practitioners as appropriate, but also viewed as helpful in protecting self interests. A well managed business (e.g., a sole proprietorship or a counseling agency) can often avoid the need to assess whether or not to sue, but not everyone does the right thing all of the time. Moreover, there are circumstances that can arise unexpectedly that will immediately raise the issue. Suppose a client physically attacks a therapist and causes substantial physical injury. Though rare, it has happened in the past. The therapist in such a situation might report the crime to the police, might be the key witness in the criminal prosecution, and might decide to bring a civil lawsuit for monetary damages against the client. As I often caution, everything depends upon the facts and circumstances involved.

Some clients may not be worth suing – that is, they may represent more trouble than potential benefit: others might invite a lawsuit! A common situation where practitioners are faced with the decision of whether or not to sue the patient is when the patient owes the practitioner money. This situation can often be avoided by appropriate practice management, but as stated above, not everyone manages their practices appropriately all of the time. Unexpected circumstances may present themselves that may warrant continued treatment without receipt of timely payment. In many circumstances, practitioners will ultimately decide not to pursue the debt owed by the patient either because the amount of the debt is not great or because they may feel vulnerable to igniting a counter-claim or a complaint to the licensing board.

I have spoken with therapists who were owed money and were leaning toward suing the patient, but after I asked questions about their insurance billing practices or suggested that they could have seen the patient without charging a fee for a limited period of time (short enough to effectuate an in-person termination) and then made a referral, they decided to walk away from the idea. I might also raise the question, in an appropriate case, of whether the therapist could be accused of unwittingly or negligently allowing a debtor-creditor relationship to be established which negatively affected the treatment. Even though such an accusation can be rebutted, the therapist might simply want to forego the risk of sparking trouble. In some circumstances, a lawsuit might be justified and a helpful strategic move. After a justified lawsuit is filed, a subsequent claim or complaint from the patient might be viewed or argued as simply a retaliatory afterthought which lacks merit.

Thinking about suing the patient for monies owed raises the issue of referral to a collection agency. It has been my consistent belief that such referrals are unwise for a variety of reasons – not the least of which is that a lack of integrity or bad business practices by the collection agency may cause harm to the patient or may be considered harassment. What research will the practitioner do before referral to the debt collector? Additionally, some practitioners make the referral to collections before they provide adequate notice to the patient, which can ignite patient anger and cause problems for the practitioner.

If the debt is worth pursuing, a small claims court action, where the practitioner can be face to face with the patient, can be effective (both legally and sometimes “clinically”). In some cases, the patient will not appear on the trial date and a default judgment can be obtained. Once the judgment is obtained, payment is more likely, though not guaranteed. I have spoken with a therapist who pursued enforcement of a judgment, which could have led to seizure by the sheriff of the patient’s assets in order to satisfy the judgment. The patient eventually paid the therapist.

While it is possible to sue your patient, the need to do so should be rare. Reasonable efforts to resolve the matter can often be made before resorting to litigation. If suit is to be brought, great care must be exercised as the matter progresses. For example, the fact of the therapist-patient relationship will surely be revealed during the course of the legal proceedings, but the confidential communications between patient and practitioner remain confidential (e.g., the patient’s diagnosis or mental/emotional condition). The patient has likely not waived the psychotherapist-patient privilege by failing to pay what may be duly owed! The duty of confidentiality remains. Care must be taken by the practitioner to not allow zeal or revenge to be the cause of an inadvertent or intentional breach of confidentiality.

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ABOUT THE AUTHOR

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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