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Facing a Malpractice Claim

Volume 3, Number 2, Winter 2002

Ann felt as if a two-ton weight had been dropped on her. She heard on the local news that one of her clients had shot several students at his school. She was shocked that the client would take such actions. She had seen the client in three individual therapy sessions for treatment of antisocial behavior. An assessment had not revealed any tendencies for violent behavior of this nature.

Ann felt sad, guilty, angry, and alarmed. She also suspected that it would only be a matter of time before someone in this dreadful situation would sue her for malpractice. She was not prepared for litigation.

There is little preparatory training on facing litigation, much less litigation of a sensational type. Being sued is difficult for anyone. However, there are steps you can take to positively influence the outcome.

  1. Report any likely threat of a suit or actual suit to your malpractice insurance agency. All malpractice policies contain requirements for timely notification. Timely reporting also allows malpractice insurance carriers to sometimes even provide legal counsel in advance of a claim, if the circumstances merit it.
  2. Limit your conversations on the potential or actual claim to those persons who have a privileged status such as your attorney. Consult with and obtain approval from your attorney before discussing the case with others.
  3. Do not contact or try to work things out with the plaintiff or his or her attorney. Not only might you prejudice your position, you may violate the conditions of your malpractice insurance policy. And worse, you may unwittingly volunteer information that is later construed as liability. The insurance policy contains language in which the insured agrees to assist and cooperate with the insurance company. The insurance company directs an assigned defense attorney to communicate with the plaintiff’s attorney on the insured’s behalf.
  4. Do not alter or destroy your files or records. Alteration of records after the fact is unethical and illegal, looks self-serving and suspicious, and has in fact “lost” good defensible cases.
  5. Recognize that litigation of any type takes time to resolve. Chances are that you will be dealing with the suit for several years. So while the potential or actual claim feels immediate, its resolution may be far off.
  6. Make efforts to alleviate stress you may be experiencing. If appropriate, enter into therapy with another mental health professional where your sessions are confidential and privileged and cannot be used against you. Engage in activities or hobbies to take your mind off the malpractice suit.
  7. Remember that litigation is a contemporary symptom of our society and not necessarily a reflection on you.

Margaret A. Bogie, MHSA, Insurance Consultant, is a contributing writer and Mirean Coleman, LICSW, Senior Staff Associate at NASW, is a contributing editor to this series for the NASW Insurance Trust. The names and case examples used in “Practice Pointers” articles are completely fictitious, and any resemblance to persons living or dead is purely coincidental. Questions about this article should be directed to NASW via blawrence@naswasi.org.

For professional liability insurance call the NASW RRG Plan Administrator at 888-278-0038.