Avoiding Liability Bulletin – January 2006
… Suppose that the patient has been allowed to delay the payment of fees and that the balance now owed to the therapist or counselor is, for example, $1500. Suppose further that the patient now terminates treatment and that the patient has not responded to one or two written requests for payment of the $1500 or some portion thereof. Is a lawsuit appropriate? Might the bringing of a lawsuit constitute a breach of confidentiality? Might a lawsuit stir things up with the patient, possibly igniting a malpractice claim or the threat of one?
In answer to the first question, a lawsuit (usually in small claims court) is often appropriate. The lawsuit is brought so that the therapist can obtain an enforceable judgment against the debtor-patient. Payment of the debt is enhanced once a court’s judgment has been rendered. In fact, a lawsuit is often preferable to other options, such as referral of the matter to collections or frequent and persistent communication by phone and in writing (“harassment” in the eyes of the patient) where repeated requests or veiled threats are delivered to the patient. I usually discourage therapists from referring the matter to collections because of the problems that could arise from such action. Too much communication and persistence may propel the patient into action against the therapist.
It would be surprising to me if any state’s law would not provide an exception to confidentiality and privilege so that a lawsuit by a health care practitioner against a patient for monies owed could lawfully be brought. If such an exception did not exist, that would mean that physicians and therapists would effectively be prohibited from being paid for services lawfully and appropriately rendered. The law should not (and generally doesn’t) countenance such an absurd result. One must take care to assure that the lawsuit (e.g., the pleadings – the complaint) and the evidence (e.g., the testimony) presented do not address clinical or treatment issues, but are focused on the financial and contractual aspects of the relationship.
With respect to the third question asked above, the answer is “yes.” A lawsuit against a delinquent patient may well stir things up, like the patient alleging that the treatment provided was ineffective or grossly negligent and that therefore the patient doesn’t need to pay for such shoddy services. Sometimes it is wise for the therapist to drop the matter, even if the amount owed is substantial. Conversely, I have counseled therapists who have pursued, as a matter of principle, payment of $100 by filing a small claims court action. They refuse to be intimidated into inaction by the patient. Each case and each decision must be carefully analyzed before action is taken to pursue a claim for monies owed.
ABOUT THE AUTHOR
"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.