Are You Protected from a Costly Lawsuit?

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Are You Protected from a Costly Lawsuit?

Lawsuits and state board complaints are expensive, take time away from work and cause a lot of anxiety. The most frequent classes of lawsuits against social workers include:

  1. Incorrect Treatment, (comprising over 20% of the lawsuits across both the agency and sole practitioner segments), and
  2. Sexual Misconduct.

Potential liability is a fact of social work practice regardless of venue. Social workers should not assume that an employer will cover any liability and that an employer’s liability insurance policy will cover lawsuits and complaints against its social worker employees. That is why every social worker must consider an individual Professional Liability policy and in many cases a cyber and general liability policy.

Other frequently filed lawsuits arise from state board complaints, patient suicide, and reporting. Common clinical practice issues and insurance claims that arise frequently include trial testimony, subpoenas, depositions, medical records requests, information breach, and HIPAA lost data issues.

Trial Testimony

Trial testimony arises in two ways. One way is when a social worker agrees to participate in trial testimony. The associated costs are not typically covered by any insurance policy. The second way is through a subpoena which most insurance policies do not cover.

Medical Records Requests

Medical records requests can be done verbally, in writing or a subpoena. If a social worker receives a subpoena, the response is required to be by objection or production, otherwise the social worker may be held in contempt of court. The first step once a subpoena is received is to receive advice from an attorney regarding how to respond including producing the records.

Dissatisfaction with Care

This is a broad and subjective area with far-ranging practice methods and causes that go beyond insurance issues and even risk training. Fact patterns are broad and often qualitative. Dissatisfaction of care includes complaints that can emerge into claims involving matters wherein a client is dissatisfied with a social worker’s recommendations or conduct. Examples include a mother upset by the advice given to the child, a father who complains that a social worker is biased against him and is treating the child in a way that the father perceives is harming the relationship, or a client who disagrees with s social worker’s assessment.

Breach of Confidentiality

This relates to a social worker releasing records to the incorrect individual or discussing confidential information with a person who does not have the authority to have the information. This includes misdirected faxes sent to the wrong telephone number or to the wrong people. Most insurance policies on the market today do not cover this. .

Deposition Only

Like subpoenas, depositions are part of the discovery process when a legal action is brought against a social worker. A deposition is a testimony that occurs outside of the courtroom. It is sworn to by the deponent. The judge is not present to give rulings on evidence disputes. Thus, an attorney is recommended to be present to ensure that the social worker does not release confidential information.

HIPAA – Lost or Stolen Information

Since 2013, social workers have been held accountable by HIPAA and the Federal Government for third-party information breach. That means that if a social worker hires a mover who loses client records or damages them in a storage facility, or a cyber-records provider corrupts the information, a social worker is responsible. Even client telephone numbers stored on phones or information on laptop or notebook that are stolen constitute a HIPAA information breach violation. There are many HIPAA mandated restitution requirements that must pay for including fines and penalties.

Filing a lawsuit does not guarantee a judgment, but it does guarantee that a social worker has to pay defense counsel fees to answer the complaint and file a motion to dismiss. A common occurrence is that the plaintiff simply writes a complaint letter to the state licensing board and it automatically causes a licensing board inquiry. Make sure your professional liability insurance policy includes coverage for this.

There are a lot of liability risks and moving parts that can hurt you financially and professionally, regardless of whether you are an employee or a private practitioner. The best way to stay ahead of the damages and risk curve is to regularly attend Risk Management Seminars, follow the NASW Code of Ethics and NASW practice standards, stay current with your state laws.

Published June 2015

Resources and References