When Attorneys Sue Clinicians
When clients believe or perceive that they have been injured by a clinician, they will seek an attorney for advice. The attorney's task is to determine if the injury has value and if the injuries were likely caused by the clinician. The next step for attorneys is to consult with an expert witness who will review all available records and provide an opinion regarding the degree of injury caused by the clinician through acts of omission and commission. Once the attorney determines the likelihood of being successful in court, he moves on to the next step.
Now, the opposing attorney registers the case with the court and serves notice to the clinician that he/she is facing a lawsuit. Should the clinician fail to respond, the court will rule in favor of the client and the opposing attorney will seek to obtain the financial award from the clinician's asset. Regardless of whether the client seeks the services of an attorney provided by his/her malpractice insurance company, the opposing task is to obtain a favorable financial award from the court. In attempting to obtain this financial judgement, the attorney will do his/her best to show that the clinician injured the client due to the following clinical actions:
- Lacing the necessary skill and training to treat the client
- Failure to determine the client's clinical needs
- Failure to recognize the client's presenting symptoms
- Failure to assess the client appropriately
- Failure to diagnose the client appropriately
- Failure to provide an appropriate treatment protocol
- Failure to consult
- Failure to refer
- Failure to recognize risk factors
- Failure to manage the client's risk of harm to self and/or others
- Failure to protect the client from harm
- Lacing the adequate training to manage the client's risk of harm
- Making an illegal breach of confidentiality
- And many others
What steps can clinicians follow to protect themselves from these situations. First, its important to recognize that though clinicians may not have acted inappropriately, their greatest weakness is having inappropriate mental health records that protect them. I must reinforce an important observation I've made from my expert witness professional activities. Mental health records must support and document the clinician's sequential treatment process. Both units support and complement each other. For example, the clinician uses several forms to document assessments, which in turn appropriately document the diagnosis. The diagnosis in turn supports the assessment protocol. This is the beauty of a collateral and parallel documentation and treatment process.
I offer several publications that provide you with this information. Some clinicians may say that they don't need to modify their current system and besides, they will likely not get sued. I reply that this statement may be true, however can they predict who will sue them unpredictably? I have witnessed clinicians involved in a legal action who have said that if they could go back in time, they would have documented their treatment completely different. I don't want you to be in their position.
Sincerely,
Dr. Grosso
How Attorneys Develop Malpractice Cases Against Clinicians In Conjunction With an Expert Witness ©
Henry Dahut, JD
Federico C Grosso, DDS, PhD, MFT, BCFE
Expert witnesses, who have been retained by attorneys
in malpractice cases involving licensed clinical social workers (LCSWs), find
that these attorneys tend to follow a discernible approach to develop their
cases for trial. We hope that this information, which is gleaned from
interacting with attorneys, will help LCSWs improve their documentation processes
to support the therapeutic duty owed to clients using and maintaining
appropriate treatment records.
Once an attorney decides to initiate a malpractice
action against an LCSW, he or she begins a process to show how the clinician
acted below the Standard of Care;
violated her/his therapeutic duty to assess, diagnose, and treat the client in
a “reasonable and prudent” manner, and caused injury to the client. As a way to
enhance the LCSW’s deficiencies, this attorney will attempt to find “actual” or
at least real and arguable deficiencies in the clinician’s work that may at
first be hidden from view. Through the discovery process the goal is to find
these as well as any legal and/or ethical violations that the LCSW carried out
by omission and commission during the course of treatment. Non-existent, poor,
or excessive mental health records can serve to make the defense attorney’s
task much harder and help strengthen the opposing attorney’s premise that
malpractice took place.
The opposing attorney will start by issuing a subpoena of the existing
mental health records for the purpose of determining the strengths and
weaknesses of the LCSW’s care and approach. Upon receiving these, he or she
will turn them over to an expert witness to determine the following:
- Are
these the actual records?
- Have these records been altered in any way?
- If
computerized, were they created and printed before or after the lawsuit began?
If these are the actual records, then the expert witness will be asked to
review them and identify the strengths and weaknesses of the case. If there is
any doubt that the records have been recreated by hand (ink is dated by the
manufacturer and an expert can determine if the ink and paper correspond to the
time of records creation) or recreated by computer (word processing software
does not “fix” data and opens the possibility that the clinician’s hard drive
could be subpoenaed to determine the creation date of the document, which is
readily obtainable from the internal data structure of the hard drive) the
attorney has now won the case. An LCSW tampering with records after the fact is
altering legal evidence and this action now opens the door for the LCSW to be
accused of perjury (lying in court) and an accusation of unprofessional conduct
to the state’s licensing agency, the Board of Behavioral Sciences.
If the records are legitimate, the expert witness
begins his or her examination to determine the following:
- Does the quality
of the existing treatment records conform to the standard of care?
- Did the LCSW follow standard of care to assess the client appropriately throughout the
treatment process?
- Did the LCSW diagnose the client appropriately throughout
the treatment process?
- Did the LCSW treat the client appropriately
throughout the treatment process?
The expert witness develops a time line
beginning with the initial visit and ending with the final visit meanwhile
attempting to answer the following question:
- Is the presenting
issue identified in the treatment records?
- Does the LCSW have
the scope of competence
(training, knowledge, and experience) to treat the presenting issue(s) and
how is it documented?
- Does a treatment plan
or plans exist addressing the four phases of treatment?
- If so, is the
proposed treatment plan reasonable in attempting to resolve the presenting
issue(s) with appropriate goals and objectives in each phase?
- Do the assessments
conform to the standard of care?
- Does the diagnosis
conform to the presenting symptoms?
- Is the diagnosis
supported by documented symptoms and their duration?
- Is a written informed consent document part of the
treatment records?
- Does the informed consent document conform to the
legal and ethical standard of care and is there any additional consent required for unconventional or
experimental treatment provided?
- 10.Did the clinician obtain legally defined written release
of information to consult
with other clinicians?
- Did the clinician practice within the scope of practice of addressing psychosocial
stressors for licensed clinical social workers.
With these initial questions, the expert witness
compiles a list of strengths and weakness specific to this case. For example,
the LCSW’s competence may come into question if he or she treated a suicidal
client and has not taken a course on managing suicidal clients within the last
two years. The LCSW may have not obtained previous treatment information
pertinent to the assessment process: a history of suicide attempts known to the
previous treatment providers. A Mental Status Exam and a Beck Depression
Inventory may be lacking. The treatment plan does not address the suicidal
behavior. The client was not referred to a psychiatrist. The informed consent form may be inadequate or
non-existent and this can be problematic for the clinician. A non-existent form
fails to support that the clinician acted in a reasonable and prudent manner. A
separate informed consent form
may not have addressed challenging or
unorthodox therapeutic modalities used.
The diagnosis was not supported by documented behavioral symptoms and their
duration
Each one of these violations may be minor, however together they serve
to demonstrate in their totality a significant deviation from the reasonable
and prudent practice lawfully expected of the practitioner. Imagine this conversation
between the opposing attorney and the LCSW during a deposition:
- Attorney: In your
training as a clinical social worker you learned certain skills and practices
that allowed you to have an understanding of the prevailing standard of care in
matters of suicidal clients. “You are a reasonable and prudent clinician, are
you not?
- Clinician: “Yes.”
- Attorney: “As such the
reasonable and prudent clinician, would make his best efforts to conform with
these legal and ethical standards correct?”
- Clinician: “Yes.”
- Part of that would be
to understand the importance of obtaining your patient’s informed consent
before treating the patient, correct?
- That would be the
reasonable and prudent course of action for a clinician, would it not?
- Attorney: “Can you tell
me what specific things you did in obtaining your patients Informed Consent
form in your records?”
From this moment on, the clinician’s credibility as a
reasonable and prudent LCSW could be damaged if informed consent was not obtained or it did not meet the legal and
ethical standard of care. Imagine
each ethical and legal violation as a black mark on a white paper. How many
black marks will be left on the paper after the attorney is finished with his
or her questions? That is the image that will be presented to a jury by the
opposing attorney.
After completing the initial aspect of the document
review, the expert witness is ready to complete the next part of the assessment
process: the assessment of the initial complaints as they appear on the legal document
titled “Complaint of Damages.” This legal form registered with the Court will
have a myriad of complaints ranging from practicing below the standard of care to willfully inflicting harm on
the client and causing severe emotional injuries.
The expert witness will review the deposition of the
LCSW. The opposing attorney attempts to ask questions during the deposition
that attempt to point out the LCSW’s weakness (See above). Upon reviewing this
deposition and the deposition of others involved in the malpractice action,
specific items will be identified that will help support the accusation that
the LCSW acted below the standard of care and if applicable of willfully injured the client by acts of omission
or commission.
The opposing attorney will use the compilation of all material that
supports his/her premise and based on the evidence that the LCSW is at fault
for injuring the client to obtain an acceptable financial settlement from the
insurance carrier. Should a settlement not be forthcoming, he or she will
obtain a settlement conference date where the judge attempts to have both
parties resolve this action. Should a settlement not be reached then the case
will go to trial. This process can take anywhere between two to three years
from the time the malpractice action is filed with the court to the time a
trial is finished and a verdict reached by a jury.
Finally, remember that every case is different and can presents unique
issues of both law and fact. Malpractice cases are often complex matters that
require maximum protection for the clinician. A licensed clinical social worker
facing a malpractice or administrative action should not underestimate the
importance of selecting an experienced and well-trained defense lawyer as well
as a credible expert witness to support the clinician in his or her
defense.
About
the Authors
Attorney
Henry Dahut, has practiced law for twenty years and has both defended and
prosecuted medical malpractice matters throughout his career. Mr. Dahut,
has tried cases in both Federal as well as State Courts and has worked
with hundreds of expert witnesses throughout the litigation process. Among
his other consulting work, Mr. Dahut is of-counsel for the highly regarded
medical malpractice defense firm of Rusheldt, Shelley & Drake
LLP in Sherman Oaks California. Much of his current practice involves
consulting with law firms in the field of practice development. He is an author
and sits on the Executive Committee for Law Practice and Technology for
the State Bar of California. Mr. Dahut can be reached at Henry@HenryDahut.com
Fred
Grosso is an expert witness in malpractice actions involving marriage and
family therapists, clinical social workers, alcohol and drug abuse counselors,
certified addictions treatment specialists, and dentists accused of child abuse
when providing treatment in the dental office. As an expert witness, he has
involved in major legal cases and has been successful in his capacity as an
expert witness with defense and plaintiffs' attorneys. He lectures for and
consults with mental health organizations throughout the state. He also is an
official lecturer on law and ethics and other subjects for the California
Chapter of the National Association of Social Workers. His extensive
publications are used as academic resources in major universities throughout
California. His website provides continuing education on developing a safe
clinical practice to psychotherapists and other mental health counselors. Dr. Grosso can be reached at FCGT@FGrosso.com