Your Duty to Bear Witness

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Your Duty to Bear Witness
Patient Informed Consent and Maleficence Risk

If you are aware of illegal activity in your practice, or by your employer/supervisor, you should report it immediately, including the State Licensing Board. A practitioner, including doctors and allied health professionals, have an implicit duty to disclose.

No doctor or allied health professional can treat a patient unless that patient grants permission. The patient’s consent, and therefore permission, arises from the patient’s decision based on full disclosure so that the patient’s wishes and medical treatment are consistent.

A landmark 1957 U.S. legal decision merged the word “consent” with the term “informed consent” whereby medical professionals have a duty to disclose “any facts which are necessary to form the basis of intelligent consent by the patient to proposed treatment.” This means that the facts, risks, and benefits of treatment, interaction, and alternatives are disclosed. The key mode of practice as decided by the court is that the patient must be allowed the opportunity to evaluate options, risks, and benefits in order to make an informed and independent choice. Consent forms are required prior to treatment. When signed by the patient, the consent form is a testament as evidence that the patient was informed and has given permission for treatment described in the consent form. Consent forms protect the patient rights, not the healthcare provider. The patient does not waive the right to sue the doctor, healthcare provider, practice, clinic, or hospital for malpractice.

In the majority of states, the patient/plaintiff in cases dealing with a lack of informed consent may maintain a legal action based on battery. For example, the Appellate Court of New York State held that uninformed consent is tantamount to no consent at all. The courts have long accepted that a healthcare professional need not inform the patient of all remote risks or consequences of treatment or procedure. However, there is a duty to report and to reasonably inform the patient of recognized risks or potential adverse reactions arising from interaction or treatment.

So what happens if a social worker is an independent contractor, or employee in a healthcare agency, and knows about a supervisor with a history of sexual misconduct and inappropriate behavior with patients, yet remains silent and does not warn patients, nor report the activity? This actually occurred.

A social worker’s status as an employee, student, or independent contractor does not matter. While the plaintiff sued supervisor and the practice, the resulting lawsuit named the social worker as well. The lawsuit filed alleged that the social worker was negligent, grossly negligent, willful, and vicariously liable for not reporting the inappropriate activity. It can be argued that the social worker had a common law duty to warn and report as opposed to any statutory duty. Knowing about inappropriate activity and remaining silent, can be construed as complicity. This makes the social worker a de facto accessory criminally. The resulting maleficence arising from the social worker’s inaction makes her an accessory and aiding and abetting the supervisor as a subordinate.

Even if criminal charges are not filed against the social worker, at civil trial the social worker will be deposed and provide damaging testimony. The plaintiff’s pleadings will invariably weigh against the social worker’s failure to notify and report. The social worker will be subjected to the same level of liability as the supervisor as an accessory. Legal defense in these types of cases, typically exceed $50,000. Indemnity damages and the indemnity payments can range from $50,000 to $100,000 on top of the legal defense costs. Most professional liability insurance policies do not cover these claims. The NASW Risk Retention Group Professional Liability policy covers these claims starting from the first dollar, and with no deductibles.

You must report issues of this nature to the officers of the practice and outside of the practice in writing. The employer’s insurance most likely will not cover you if you are named a defendant. Unfortunately, you will be the one subject to loss of your license and possible criminal prosecution, and certainly costly civil litigation. Protect yourself with your own individual professional liability policy even if you think you are covered by your employer’s policy.

Published August 2016

Resources and References