Malpractice Minefield — Eluding the Long Arm of the Law
By David Surface
Social Work Today
Vol. 5 No. 3 P. 28

Don’t put yourself at risk in our litigious culture. Know how to avoid legal land mines.

A social worker finds himself attracted to a client and begins a sexual relationship with her. A second social worker quits the profession before starting a relationship with her client. A third social worker meets with a divorced father who asks the social worker to provide therapy for his children who are suffering emotional trauma because of the divorce and the therapist agrees without the mother’s consent. A fourth social worker, wishing to help a poor client, agrees to trade services and lets the client do carpentry on his house in exchange for therapy.

Question: Which of these social workers have exposed themselves to the threat of a malpractice suit?

Answer: All of them.

In a litigious age when it’s said that anybody can sue anyone for anything, social workers in clinical and therapeutic practice appear to be especially vulnerable. According to records kept by the National Association of Social Workers (NASW) Insurance Trust, malpractice suits against social workers have increased dramatically over the past 25 years. Part of this increase is due, no doubt, to the infamously litigious climate we live in, in which social workers’ clients are simply more aware of their opportunities to sue and seek monetary compensation for real or imagined damages.

According to Sandra Nye, JD, MSW, of Nye and Associates, Ltd., social workers began to find themselves on the receiving end of lawsuits roughly 20 years ago.

“In 1973 or ’74, the thought of suing social workers didn’t cross most people’s minds,” says Nye. “That began to change toward the end of the ’70s and the early ’80s when more social workers went into private practice and were doing more psychotherapy, not just child welfare and family services. About the same time you began to see lawsuits against psychologists as well. By the early ’80s, it was pretty evident that there were going to be lawsuits against social workers as well, and that’s when we started seeing them.”

But it would be a mistake to point the finger elsewhere and blame increased lawsuits against social workers on hungry lawyers and lawsuit-happy clients.

The truth is that more social workers are being sued today because, in many cases, the quality of their service is declining. It’s no secret that dwindling resources and “cost containment” measures have had a negative impact on clinical practice, and many social workers find themselves compelled to terminate treatment early, much sooner than they would otherwise choose. When premature termination of treatment causes damages, a malpractice suit cannot be far behind.

How high can the amount of malpractice suits against social workers reach? Not as high as the settlements reached in similar suits against medical doctors, but that could change soon.

“Generally speaking, the claims against social workers have been lower than claims for medical doctors and psychiatrists,” says Joseph T. Monahan, ACSW, JD. “But as social workers become more insured and insurable, we’ll see the amount of claims rise.”

Changes in the legal system have also put social workers at greater risk for malpractice litigation. Legal concepts such as “protect and warn” have been revised and expanded by the courts, so social workers find themselves struggling to negotiate a constantly shifting maze of legal guidelines, all the while trying to fulfill their professional mission to provide the best service and support to their clients.

Also, social workers in clinical practice who used to be immune to legal action now find themselves unprotected.

“The people who work for state child welfare are still relatively immune from lawsuits,” says Nye. “Sovereign immunity means that the state is immune from liability for any civil wrong committed by a state employee during the course and scope of the work the individual is expected to do if it involves the use of discretion. There’s also an immunity for not-for-profits that you see less and less now. Some states, by law, have immunity for charitable organizations, but that’s really fading.”

Some legal danger zones are obvious. For instance, it would be hard to find a social worker who didn’t understand that having sex with a client is not a good idea if he or she wants to avoid a possible malpractice suit. Unfortunately, that understanding doesn’t seem to prevent this from happening—inappropriate sexual/romantic relations between therapists and clients remain one of the most common reasons for malpractice suits against social workers.

However, social workers in clinical practice can be sued for various other reasons that are not so obvious.

Failure to Protect
Jason is a social worker who is providing therapy to a client named Sam. Sam has a lot of anger issues and, during therapy, tells Jason he wants to kill his boss. Jason must now decide whether he should warn his client’s boss of Sam’s threat and possibly cause his client to lose his job. Should he say nothing to the boss to protect his client’s privacy and risk his client actually carrying through on his threat?

Although no one can predict what will actually happen in a situation like this, it is possible to predict what a judge and jury may decide about the outcome. Because ethical dilemmas such as the one above can be so confusing, most states have developed highly specific laws outlining the relationship between failure to protect and client confidentiality. And because these laws can be as complex as the dilemmas they are meant to deal with, social workers are encouraged to seek legal advice when these two principles are in conflict.

In many such cases, the “duty to warn” overrides the need to preserve client confidentiality. “There are some times when it must, such as when a client makes specific threats against an identified person,” says Monahan. “For example, if I say I’m so angry at my boss, I’m going to kill him, you would have the obligation to warn. Or if I admitted I was abusing a child, you’d have an obligation to release the information.”

Breach of Confidentiality
Issues of client confidentiality may not only extend past the termination of therapy, but they may also reach beyond the end of the client’s life.

Jean is a therapist whose client, Carl, is suffering from depression. During therapy, Carl admits to carrying on multiple sexual affairs, and, sometime during therapy, commits suicide. After Carl’s suicide, his wife approaches the therapist and asks to see the records of Carl’s therapy to understand why her husband would have taken his own life.

Should Jean show her records to Carl’s wife to help her work through the grieving process? While there is no longer any danger of destroying the client’s marriage by revealing his sexual affairs, there is still the possibility of inflicting “emotional damages” on the client’s wife and family—and, therefore, there is also the danger of a lawsuit.

“There’s a lot of confusion about records, particularly with suicides where family members want access to records,” says Monahan. “The situation is already very traumatic for the survivors, the social worker feels badly for them, wants to help with the grieving process, and gives the information to a family member or the administrator of the will. That information can be devastating to the survivors.”

Inappropriate Behavior
The phrase “inappropriate behavior” conjures associations with sexual overtures and harassment, but actually covers a range of scenarios that, at first glance, appear relatively innocent.

Scott is a social worker who is providing therapy to a young man named Tim. Therapy is going well, but Tim, who has no insurance, can no longer afford to pay for his sessions and offers to paint his therapist’s house in exchange for therapy. Scott believes terminating Tim’s therapy at this point could have negative consequences. Should he agree to Tim’s proposal?

“A social worker might say, ‘I’ll do therapy for you or your family, and in return, you’ll do carpentry on my house,’” says Monahan. “That is inappropriate. One therapist told me he was writing a book and that his client, who was an artist, wanted to illustrate it—that’s another inappropriate relationship.”

Boundary breaches include extra-therapeutic personal, social, and business relationships with clients. It’s sexual relationships between clients and therapists that may be the most egregious boundary problem.

“Not all personal or sexual boundary breaches are instigated by therapists. Often, clients—especially those with borderline traits—are the instigators. These clients who seduce the therapist into an extra-therapeutic relationship are what I call the scorpion people,” says Nye. “The therapist who is vulnerable because of some personal issues is a sitting duck. When he or she cannot meet the client’s insatiable needs, the client turns around and stings them. These clients sue or turn the therapist into the licensing authorities or the NASW ethics committee. Then the therapist is going to get it in the neck because these relationships are harmful to clients. And everyone knows it, including the client who instigates the relationship. Even if it is the client who aggressively pursues a social or sexual relationship, the therapist is responsible for controlling the relationship and maintaining professional boundaries.”

Monahan advises social workers that the safest course is to err on the side of caution. “Most people know they shouldn’t have sexual relationships with clients,” he says. “But some people will say, ‘If I stop being a social worker, can I then have a relationship with a former client? How long do I have to wait?’ The safest thing is to never have such a relationship.”

Improper Supervision
Peter is a career social worker in charge of supervising new field placements in a family counseling center. He believes Susan, a young social worker under his charge, is genuinely talented—too talented to be relegated to typing and filing—so he considers allowing her to take over couples counseling for two new clients. What if the couple divorces after their counseling with the new social worker?

While a couple suing a therapist after the dissolution of their marriage may seem far-fetched, it begins to sound somewhat less far-fetched when the therapist can be truthfully described as young and relatively inexperienced.

Another issue in divorce and child custody is who has the ability to give consent for child therapy. “One parent says, I think my children are devastated by this divorce—I’m going to take them to a social worker, but they don’t get consent from the other spouse. That can be grounds for a lawsuit,” says Monahan. “A better approach is to get the mother and father to consent, or, if they don’t, bring the matter to the court to get a court order to approve the therapy.”

Be Prepared
Social workers may assume that they are protected from malpractice claims by their employers’ insurance. According to Nye, this can be a dangerous assumption. “The fact that your employer has insurance may or may not be helpful to you,” says Nye. “They might take the position that what you did isn’t covered or that the insurance covers the employer for the wrongful act of the employee, but the individual employee may not be insured personally.”

Because of these uncertainties, Nye strongly advises that social workers “don’t practice for one day without your own professional liability insurance. The cost of social work malpractice insurance is very low and the benefits are boundless.”

Other important preventive measures for social workers are to become familiar with their local licensing authority and its regulations and what actions are grounds for discipline, to learn and scrupulously abide by the state and federal confidentiality statutes, and—perhaps most importantly—become familiar with and abide by the NASW code of ethics.

“Relatively few social workers, once they’re out of school, bother to get a copy of the code of ethics and refer to them during practice,” says Nye. “They just don’t pay attention to that. This is dangerous. If you follow the dictates of the code, you are really fairly safe from a professional liability lawsuit.”

Experts agree that the best time for social workers to consult an attorney is before they need one. Social workers should ask colleagues to recommend a lawyer who is knowledgeable not only about malpractice and professional regulation, but also about mental health and social welfare law. The next step is to schedule an initial consultation to familiarize the attorney with the practice and any issues of concern.

“I think social workers need to be educated about the law and use the law to their advantage, review the code of ethics once a year, be knowledgeable, and have a lawyer they know of before they get into one of these circumstances,” says Monahan. “There are ways social workers can have a relationship with a lawyer without a lot of money. There are complex legal issues involved, so it’s nice to have a lawyer to depend upon for clarifying those issues.”

Social workers should take heed of any risk reduction advice they receive and stay in touch with the attorney should the need for their services arise.

Of course, the goal of risk reduction is to make sure the need never arises.

“The best antidote for malpractice is good practice,” says Monahan, “Good risk management, good training, and good practice. Social workers generally don’t get sued if they’re doing a good job. If they’re doing a good job ethically and legally, there’s no problem with lawsuits—social workers will prevail.”

— David Surface is a freelance writer and editor based in Brooklyn, NY.