Dennis Saccuzzo, PhD, JD, and Nancy E. Johnson, PhD, JD
The practice of psychotherapy can be frightening when one considers the numerous and sometimes conflicting sources of duty and liability. Recently, we attended a continuing education program on ethics and risk management for psychologists. The speaker was a psychologist, not an attorney. After spending an hour or two on horror stories, the speaker provided a rather long list and discussion of incidents that could lead to liability, professional discipline, and one’s loss of license to practice. The remedy given in all cases was to “see an attorney as soon as possible.” Indeed, it is a good idea to have, on retainer, an attorney who specializes in mental health. However, at some point the need to rely on the services of an outside professional begins to infringe on a psychologist’s professional independence. Rather than practicing in a chronically defensive and constricted mode because of fear of legal implications, we affirm the wisdom of incorporating knowledge and understanding of relevant basic legal principles into the core of knowledge of any competent psychologist.
Yes, when in doubt call an attorney. Generally, anything you say in your practice that is not protected by an evidentiary privilege and can be construed as an admission will be admissible in a court of law. By relying on your instincts and empathic style, you may find yourself deep in quicksand. On the other hand, because legal and ethical issues are so critical to the practice of psychology, competency in the field demands that all psychologists have a fundamental knowledge of the professional/ legal issues that affect practice.
As Sales stated in his classic work on law and psychology:
“. . . formal standards guiding the behavior of psychologists dictate that all scientists and professionals stay current about not only organizational standards but also legal developments that affect their work (see Principle 3 of the Ethical Principles of Psychologists, APA, 1981; Standard 2.2.2 and 2.2.4 of the Standards for Providers of Psychological Services, APA, 1977; and Guideline 2 of the Specialty Guidelines for the Delivery of Services, APA Committee on Professional Standards, 1981).”1
There was a time when the APA acquiesced to medicine and mandated psychotherapy by psychologists “only in genuine collaboration with physicians.”2 This notion was later rejected as a “nonfunctional constraint” on psychologists’ independence and competence. Put simply, psychologists are competent to practice psychotherapy without collaboration with physicians; psychologists do need to know enough to refer to physicians when clinically indicated, so referral indicators are part of our training. Now we face a new but similar crisis. Can psychologists practice independently of attorneys? We believe continued professional independence is contingent on psychologists taking responsibility for maintaining competence by including law in their training and continuing education.
In this article, we introduce you to one important area of liability: malpractice. Our view of malpractice is broad: it encompasses not only professional negligence, but also other tort theories that form the basis for malpractice claims. Rather than recount horror stories, we try to help you understand the legal principles that provide the basis for many malpractice claims.
The core of effective psychology and risk management can be found in sound ethical practices.3 So the first place to start is with the gold standard of ethics codes, the Ethical Principles of Psychologists and Code of Conduct,4 which was revised in 2002 (hereafter, The Code). The Code is available on APA’s website and is a mere 15 pages, including the table of contents.
In their professional training and continuing education, psychologists study ethics in general and The Code in particular. Not all psychologists study law, even in a minimal way, in the course of their training. However, the two are inextricably interrelated. State laws either partially or fully incorporate provisions of The Code, as do state licensing boards in their rules and regulations relating to practice. Therefore, violation of provisions of The Code may constitute direct violations of the law or of licensing regulations in your state. Moreover, even if violation of a provision of the Code does not rise to that level in your state, such violation could provide strong evidence of conduct below the standard of care for the profession, which constitutes a vital part of the case for professional negligence.
Are you familiar with The Code? How many times have you read it? Do you understand it?
As will be discussed below, violation of The Code can lead to lawsuits, liability, professional discipline, and loss of licensure and credentialing. So make it a priority to know and understand The Code, to review it periodically and above all, to follow it.
CORE PRINCIPLES OF ETHICS
There are three core principles of ethics: autonomy, beneficence, and justice.5 These broad ideas are reflected in The Code’s General Principles (A-E). Autonomy means we treat other people with respect - as though they have value and moral dignity (see Principle E). Numerous specific ethical duties follow from this guiding principle. When we avoid exploitative relationships (3.08, 10.05, 10.08), obtain informed consent (3.10, 10.01), attempt to informally resolve ethical violations (1.04), avoid discrimination (1.08, 3.01), and avoid making false statements (5.01), we are treating others with respect. Honesty and integrity are also part and parcel of autonomy (see Principle C). Confidentiality (Principle 4) also flows, in part, from autonomy.
Beneficence means do no harm (3.04) and promote good (Principle A). When we, as psychologists, follow accepted standards, maintain competence, and stay abreast of developments in our field, we promote beneficence. In the process, we practice soundly and avoid lawsuits and professional discipline.
Psychotherapy is a powerful tool. As such, its potential to harm is as great as its potential to benefit. Indeed, certain practices and types of conduct are known to cause harm, and so are expressly forbidden (see Principle 3). Again, thorough knowledge and understanding of The Code is our best guide to sound practice and risk management.
Justice goes to fairness and equality (see Principle D). It includes cooperating with ethics committees (1.06), avoidance of unfair discrimination (3.01), avoidance of conflicts (3.06), and sound record keeping and fee practices (see Principle 6).
LEGAL AND PROFESSIONAL IMPLICATIONS
Violations of ethical principles can lead to both legal liability and professional discipline and, in some cases, criminal liability. Indeed, many states incorporate The Code into state law by reference. This means that The Code may become part of the law governing psychologists because the state has enacted a section of law that refers to The Code and gives it the force of law. In these cases, as will be discussed in greater detail below, violating an ethical principle is a violation of the law, and may establish per se negligence (discussed below). Therefore, it is a good idea to remain current on your state’s licensing laws and regulations. Ignorance of the law is never an excuse. By contrast, knowledge of the law is empowering, as it helps us understand our boundaries and vulnerabilities.
Most states also have a set of express laws that go beyond the ethics code. In California these can be found in the Business and Professions Code.6 For example, Section 2960 of the California Business and Professions Code considers the following conduct actionable by the Board of Psychology: unprofessional conduct (2960); conviction of a crime substantially related to the practice of psychology (2960(a)); use of controlled substances or alcohol in a dangerous manner (2960(h)); fraudulent or negligent misrepresentation (2960(c)); accepting referral fees (2960(f)); advertising violations (2960(g)); violation of rules of professional conduct (2960(i)); gross negligence (2960(j)); a dishonest, corrupt, or fraudulent act (2960(n)); and repeated negligent acts (2960(r)).
A determination by the Board of Psychology that any of the above has been committed can result in severe penalties, including suspension or revocation of one’s license to practice; probation; community service; and other terms and conditions that the Board may deem appropriate.7 The Board may discover such violations as a result of public proceedings (e.g., driving-while-intoxicated violation or lawsuit against the psychologist), or through a complaint. If a complaint is filed, the Board may hire a private investigator. The investigator has no duty to contact the accused psychologist, and may spend several months accumulating information. As with ethics, the more you know, the better you can protect yourself.
COMMON LAW DOCTRINES
In addition to ethical principles, specific licensing statutes, and administrative regulations promulgated by states and their respective licensing boards, psychologists are subject to numerous common law doctrines, particularly those found in tort and contract law. The remainder of this article will address some of the major tort law issues relevant to the practice of psychology.
TORT LAW FOR PSYCHOLOGISTS
Torts refer to conduct that causes harm and for which the law imposes civil liability. If a careless driver (a tortfeasor) rear ends you and causes harm to your car and/or your body, the driver could be liable for those harms, and would have to pay enough money to make you whole or put you in the position you would have been had there been no tort.
There are three basic tort theories. The first is based on intent, which means the tortfeasor intended to do something that caused harm. The second theory is based on carelessness or fault. Under the second theory, it does not matter what you intended, but rather only that what you did was careless. More specifically, in psychology, it means you fell below a standard of care in the profession. The third theory, known as strict liability, holds one liable regardless of intent or fault. If injury occurs under a strict liability theory, all that a plaintiff need show is that injuries were caused by the defendant’s conduct, regardless of how well intended.
When most psychologists think of liability, they think of negligence, which is a fault-based tort. Many are surprised when the accusations against them include a smorgasbord of intentional torts – torts involving intended conduct, such as assault, battery, false imprisonment, and intentional infliction of emotional distress.
In an assault, the psychologist is accused of acting with intent to cause reasonable apprehension of imminent harmful or offensive touching. A common example is the failure by a physician to get informed consent for a medical treatment, such as an injection. As the hypodermic needle gets closer, the patient experiences reasonable apprehension of the imminent sting from the injection.
As far-fetched as they may seem, we have frequently seen complaints against psychologists alleging assault, in addition to the other malpractice allegations. Most of these involve touching or attempted touching by the psychologist. This may seem unfair to a psychologist, who views the attorney as over-reaching. However, the attorney faces the professional ethical obligation to zealously advocate for the client or face professional liability as an attorney. Zealous representation includes pleading the client’s claims under all available legal theories.
When the intended contact happens, it triggers an allegation of battery – intentional harmful or offensive touching of another. Psychologists frequently touch their clients – including handshakes, a pat on the back or shoulder, or even hugging. Such touching should be taken seriously, as there is a literature on touch and psychotherapy. 8 If one is using touch in psychotherapy, one must consider the effect the touching is having on the client, and particularly the client’s perception of the touching. What may seem like an innocent or even a caring gesture from the psychologist’s standpoint may appear to be sexual or intrusive to the client.
In short, what would appear to be a normal or caring act from the standpoint of the psychologist may be viewed as assault and battery long after the “warm” moment has passed. Repeated touching is particularly dangerous unless one has a justifiable rationale for the touching, which generally would mean a theoretical or empirical basis. The touching will not be viewed from the standpoint of the psychologist; it will be viewed from the standpoint of an angry, alienated former client and the client’s zealous attorney.
Consent is a defense to both assault and battery. However, because the psychologist is in a position of power, consent may not survive an attack of undue influence on the part of the psychologist, even if the consent is in writing. Being accused of sexual impropriety for what you view as an innocent and caring hug can be devastating; so use touch with caution.
False imprisonment (or intentional physical or emotional confinement within fixed boundaries) is another allegation that frequently takes psychologists by surprise. The legal standard for confinement is that the client does not feel free to leave, and the length of time in the confinement is irrelevant. A simple group therapy meeting where clients are told they must remain in the room would be enough to trigger this tort. Or, a requirement that the client remain in the treatment room for the full 50 minutes of treatment would suffice. Privacy in therapy or assessment is important, so keeping the door closed is fine. However, good practice and risk management considerations indicate the desirability of always making it clear that the client is free to leave at any time. Again, consent is a defense. However, consent must be voluntary and intelligent. Such may be difficult to prove if an impaired client claims personal suffering because you forced the client to endure a painful emotional experience. Implosion, for example, can be an effective treatment for certain phobias, but also triggers lawsuits. Going back to the principle of autonomy, perhaps we should give clients credit for knowing when “enough is enough.”
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Defined as conduct of an extreme and outrageous nature calculated to cause and which does cause severe emotional distress, intentional infliction of emotional distress is a relatively common allegation in legal complaints against psychologists. The normal definition of extreme and outrageous is a high standard – beyond common decency. However, professionals are held to a more stringent standard. Moreover, the standard for extreme or outrageous is lowered for those with known vulnerabilities, so a new or poorly tested therapeutic intervention that causes emotional distress could be enough to trigger liability. Again, everything the psychologist does must be done for a sound, justifiable reason based on accepted theory or empirical data.
Defamation and privacy torts may be alleged whenever a psychologist communicates information about a client to a third party. Defamation is defined as a defamatory statement of or concerning the plaintiff (client) that is published to someone other than the plaintiff and results in damage. Consent and truth are valid defenses.
A defamatory statement is any statement that would tend to adversely affect your client’s reputation or lower the client’s esteem in the community. Any diagnostic label can qualify. And if the diagnosis is incorrect, truth will not work as a defense.
To meet the “of or concerning” requirement, all that is needed is that a reasonable person understands that the statement refers to the client. The publication element is met if the statement is made to just one person other than the client.
Damages will be presumed if the defamatory statement is written (libel) or for what is called slander per se. Slander per se is a defamatory statement that accuses the client of a crime, loathsome disease, lack of chastity in a woman (impotence in a man), or business incompetence. Damages are presumed because it is presumed that there is injury to the client’s reputation.
Consent is a defense, and most psychologists are careful to get a written release before disclosing information. Moreover, while it is common and accepted practice for psychologists to consult experts concerning their clients, it would be good practice to get prior signed, written informed consent prior to so doing, again showing respect for the client. Being careful to communicate only that which is necessary and accurate goes to beneficence and justice. Naturally, any untrue statement made to a third party about a client could be grounds for defamation.
What if what you communicate is true? Public disclosure of private facts is an actionable tort. The elements of this tort are that what is communicated is (1) highly offensive (probably any label in the DSM will do), (2) private, and (3) publicized. Truth is no defense. The interest being protected is one’s right to have private information kept private. Failure to properly dispose of a client’s file, even if every word in the file is true, could trigger this tort. For this tort, the publicity must be “widespread,” which means the information leaks to more than one person. The meaning of widespread would be based on facts and determined by a jury.
Computerized reports and treatment notes create almost unlimited potential for liability under this tort. It is well known and widely publicized that deleting files from a drive does not remove the files completely. Sophisticated software can be used to recover files that, to all appearances, no longer exist on the drive. Therefore, special precautions must be taken whenever a drive containing confidential client information is disposed of or in some way transferred to a new owner (e.g., donated).
Negligence is the tort that comes to mind for psychologists when they think about legal liability. It is important to note that any tort may be construed as malpractice. Negligence, sometimes called professional negligence in professional settings, is just one of the many types of malpractice. Negligence is a tort based on fault, rather than intent. To win a negligence claim, a plaintiff (client) must prove each of the following elements: duty, breach, actual cause, proximate cause, and damages. It is important to keep in mind that all elements must be established by a preponderance of evidence (more likely than not). If one element cannot be established, the plaintiff loses on the whole claim. For example, as will be discussed in more detail below, if the client cannot prove damages, then the psychologist prevails, even if the psychologist made serious errors and breached a duty of care.
Duty and Breach. As to duty and breach, each of us has a duty to act as a reasonably prudent person would under the circumstances. A reasonably prudent driver of an automobile has a duty to drive safely and avoid injury to others. When one falls below the standard, one has breached a duty. For psychologists, duty and breach may be established in several ways, and one’s acts are often examined in retrospect based on harm caused.
The most common way to establish a duty is for plaintiff’s attorney to bring in an expert to evaluate the psychologist’s conduct. A typical scenario might be as follows:
Attorney: What are your qualifications?
Expert: I’ve written 20 books in the field, have 200 peer-reviewed articles.
Attorney: Do you have any practice experience?
Expert: Yes, I practiced full time at [a prestigious hospital] for 20 years. I supervised over 100 junior psychologists.
Attorney: Are you familiar with the standard of care in the community?
Expert: Why yes. I practice part time and receive numerous calls from colleagues asking for consultation and advice. I also teach local workshops and supervise psychology interns at the local [prestigious] university.
Attorney: Having reviewed this defendant’s psychologist’s conduct, what is your opinion as to the standard of care followed?
Expert: The psychologist’s care fell below the accepted standards in the field.
At this point, the plaintiff will have offered sufficient evidence to show the psychologist had a duty (standard of care) and breached it by falling below the standard when the standard was violated. Now the psychologist will have to bring an expert to rebut plaintiff’s. Often the more persuasive expert wins, regardless of what may be the absolute truth.
Sources of Duty. As psychologists, we owe many duties, not only to clients but also to students, the public, and colleagues. Sources of duty come from the usual standards in the field (as determined by expert testimony), licensing laws, standards of practice established by APA and other professional organizations, and The Code.
A logical question, then, is whether violation of an ethical principle or a licensing law conclusively establishes a duty and breach. The answer is: it depends. An ethical principle may be evidence of a duty, but generally would not be conclusive evidence of a duty. However, to the extent that violation of an ethical principle or practice causes harm, it will be much easier for the plaintiff’s expert to convince the jury that the psychologist breached a standard of care. Moreover, should it be established that a psychologist breached an ethical principle, the psychologist would be liable for discipline by state licensing boards and APA, as well as by other professional organizations with which the psychologist is affiliated.
To make matters worse, violation of state licensing law may conclusively establish that a psychologist breached a duty of care. This can occur if the state has adopted all or part of The Code by reference.
Generally, if a civil statute establishes civil liability, it conclusively establishes a standard of care. For example, violation of a civil statute requiring a dog to be on a leash at all times would conclusively establish that the dog owner had a duty (to keep the dog on a leash) and breached that duty when violating the law. This is known as negligence per se. Once negligence per se is established, an injured party need only establish damages that were caused by the defendant’s conduct.
In some cases, state licensing laws are civil, in which violation would conclusively establish duty and breach. In other cases, state licensing laws are criminal. Violation of a criminal statute (felony or misdemeanor) does not conclusively establish duty and breach because of the 6th Amendment right to confrontation. Instead, the court will conduct what is called a “class of persons, class of risk” analysis.
The “class of persons” analysis asks whether the plaintiff is within the class of persons intended to be protected by the statute. If a licensing statute designed to protect the public is involved, then it would be very easy to meet this test. The “class of risk” analysis asks whether the plaintiff was intended to be protected from the particular harm received. This requires an analysis of exactly what harm, if any, occurred to the plaintiff as a result of the psychologist’s violation of the licensing statute.
For example, part of a psychologist’s duty is to make appropriate referrals. Indeed, negligent referral is a common cause of action. Assume that this duty has been incorporated by a licensing law. Such a law may be designed to protect clients from being referred to inappropriate or incompetent practitioners, who themselves cause harm to the client. Suppose, however, the client gets lost pursuant to a negligent referral, and then is injured while trying to get directions. Such harm is unlikely to fit under the spirit of the harm being protected by the statute, and so will not be a basis for negligence per se. In this case, the plaintiff will have to rely on expert testimony to show that the psychologist’s conduct fell below the standard of care.
On the other hand, if the harm is in fact injury by an unqualified referral source, then this would fall within the class of risk against protected by the statute. In that case, negligence per se would be established, and all that would remain would be that the plaintiff show damages caused by the psychologist’s conduct.
Causation and Damages. To succeed on a negligence claim, the plaintiff must prove by a preponderance of evidence (more likely than not) every element of the claim. Showing duty and breach and/or negligence per se will not result in damages unless the plaintiff has, in fact, been damaged and the damages are caused by the psychologist’s wrongful conduct.
Causation actually involves two sub elements: actual cause and proximate cause. Actual cause means did the psychologist’s conduct lead to a chain of events that resulted in the plaintiff’s damages. This type of causation is normally satisfied by a “but for” test. The test asks whether, but for the psychologist’s conduct, would the plaintiff’s injury have occurred? For example, suppose the psychologist used an outdated test that resulted in a misdiagnosis of schizophrenia. As a result, the plaintiff is ultimately hospitalized and subjected to psychotropic medication that causes brain damage. In using the “but for” test, the reasoning would be that but for the psychologist’s misdiagnosis, the plaintiff would not have been hospitalized. Had the plaintiff not been hospitalized, the plaintiff would not have been subjected to this medication, and so on. The issue is whether the psychologist’s conduct set off a chain of events that ultimately led to damages. The psychologist’s conduct need not be the only cause. In a team approach to treatment, conduct by more than one member of the team may have led to the harm. Each member will be jointly and severally liable, meaning that the plaintiff may choose to recover from one or more than one team member.
Proximate cause is a legal concept that limits liability even where one is the actual cause. The issue is foreseeability. If the final damage initiated by the psychologist’s conduct is unforeseeable, then the courts will not impose liability. As a simple example, suppose that while driving, you carelessly bump into a pedestrian in the crosswalk. The pedestrian just happens to be a scientist who has discovered the cure for a major form of cancer, and is en route to the lab to write down the final reasoning, approach, and formula. Unfortunately, when you bumped into the scientist, that scientist fell and suffered head injuries resulting in retrograde amnesia. As a consequence, the cure for cancer is lost. You, as the driver, are now the “but for” cause of all deaths from this type of cancer that follow. Even still, you would not be held liable because it is not foreseeable that if one is driving carelessly, one may cause people to die of cancer. Proximate cause will cut off liability.
What of the earlier example, in which your referral to another professional led to harm to the patient because of the referring professional’s misdiagnosis? Again, in analyzing whether proximate cause will cut off liability for you, the referring psychologist, the issue is foreseeability. The question is whether, at any point in the chain of events, the next step is unforeseeable in view of the original act. Ordinary negligence is considered foreseeable, whereas gross negligence is not. In our case with the misdiagnosis, if the subsequent treatments and injuries were due to mere negligence on the part of the treating professional, then you as well as they could be held liable. The plaintiff can choose to sue any or all parties along the chain. If, however, the subsequent treatment rose to the level of gross negligence, proximate cause would cut off your liability. The plaintiff would have to sue the professionals who committed the gross negligence. However, even if liability is not cut off, then the plaintiff still has another hurdle: proving damages.
Damages are perhaps the toughest to prove. The plaintiff must show that it was the psychologist’s wrongful conduct that resulted in the harms suffered. From a liability standpoint, but not a professional discipline standpoint, it does not matter how many errors are made if these errors did not cause the alleged damages. Proof of damages and defense against the damages element again normally requires expert testimony. Plaintiff’s expert must identify the damages, link them to the psychologist’s conduct, and often must quantify the damages. For instance, an expert may testify that as a result of a psychologist’s inappropriate touching, the plaintiff experienced erotic feelings, shame, and conflict (i.e., emotional damage). To rectify such harm might require three months of inpatient treatment followed by two years of bi-weekly therapy plus intermittent therapy sessions over a five year period at a cost of $150,000.
Defense experts will generally take a more conservative spin, with an estimate of $5,000 in damages, if any. The argument is frequently based on pre-existing conditions. For example, the argument would be that the plaintiff has a severe borderline personality disorder with occasional bouts of psychosis. Consequently, the plaintiff would have needed such treatment regardless of any conduct on the part of the therapist.
Often, matters boil down to who has the better attorney and more convincing (i.e., credible) experts. A jury may side 100% with the plaintiff or 100% with the psychologist, or somewhere in between. The problem is that it is impossible to forecast. As any competent attorney will explain, anything can happen at trial.
We have presented a brief overview of legal theories of malpractice liability for psychologists. We have done this not so that you can now become a do-it-yourself attorney, but rather to deepen your understanding of how the legal system works and the typical claims that are made. By understanding sources of liability, it is easier to avoid them. However, if you should be faced with liability the wisest course is to consult an attorney you have already retained.
To avoid liability, practice ethically. To practice ethically, have a thorough and intimate knowledge of the standards that govern, particularly The Code and any relevant licensing laws. These standards are not to be read and then set aside. They are documents with which you must become thoroughly familiar and then re-familiar at regular periods.
In the course of our professional lives, we have had occasion to read, study and teach ethical principles again and again. Nevertheless, even after more than 100 readings of the various versions of The Code and numerous state laws, we still find something new each time we revisit them.
Dennis P. Saccuzzo, PhD, JD, ABPP, is a California attorney and Board certified licensed psychologist in clinical psychology. As a Professor at San Diego State University for over 32 years, he has published extensively and is the author or coauthor of over 320 peer-reviewed papers and publications, including nine psychology textbooks and 24 law study guides. In addition, he has published a number of law review articles, including articles in the area of domestic violence and mental health law. In conjunction with Nancy E. Johnson, he has lectured extensively in law and has taught a variety of supplemental and full Bar programs for first time and repeating Bar candidates. He has also worked extensively in faculty development. He obtained his Ph.D. in clinical psychology from Kent State University and J.D. from California Western School of Law, and is the President and co-founder of Applications of Psychology to Law, Inc.
Nancy E. Johnson, PhD, JD, attorney and psychologist, is the author or co-author of over 150 peer-reviewed publications and papers, including 24 law study guidebooks and an interdisciplinary book that critically reviewed the 1998 empirical literature on domestic violence. Her research and teaching demonstrate how administrative laws and agencies affect specific populations, such as elders, children, domestic violence victims, and individuals with disabilities. In conjunction with Dennis P. Saccuzzo she has lectured extensively in law and has taught a variety of supplemental and full Bar programs for first time and repeating Bar candidates. Dr. Johnson earned her Ph.D. degree in clinical psychology from the joint program at the University of California, San Diego and San Diego State University. She earned her law degree from California Western School of Law and is cofounder of Applications of Psychology to Law, Inc.