Risk Management

Are you at risk when your associate is guilty of unethical conduct?

About the Author
Eric C. Marine is Vice President of Claims for the American Professional Agency, Inc. and a frequent writer on topics or risk management in the mental health field. O. Brandt Caudill, Esquire is a prominent defense attorney with the firm of Callahan, McCune and Willis in southern California. He attended the “Ramona” trial as an observer. Mr. Caudill has published numerous articles on mental health care issues and the law. Sylvan Schaffer, J.D., Ph.D. is both a practicing psychologist and a lawyer in the greater New York City area. He serves as Legal Counsel for the New York State Psychological Association and has written extensively on risk management topics.

Dr. Jones decided he needed an associate. He advertised for and found a young therapist who had impeccable credentials. This individual, Dr. Bright, was interviewed extensively. Dr. Jones felt he had found the perfect therapist to join his practice. Drs. Jones and Bright agreed on compensation, referral protocols and the other aspects of a joint practice. During the first year, Dr. Jones went over each and every case that his new associate took in. There were supervisory sessions where all aspects of the cases were thoroughly reviewed. After a year, Dr. Jones felt he was working with a highly professional and competent individual. Since Dr. Bright possessed the appropriate degree and license, he felt no need to go over every case that his associate brought to the practice. They still held case conferences, but only discussed the cases as needed. This practice arrangement continued for some time. The practice grew and both therapists prospered. Then, one day a patient of Dr. Bright’s asked to speak with Dr. Jones in confidence. While Dr. Jones felt strange about meeting with Dr. Bright’s patient without Dr. Bright’s knowledge, he agreed. During that meeting, the patient informed Dr. Jones that she had been involved in a sexual relationship with Dr. Bright for some time and provided evidence to substantiate her statements.

Obviously, Dr. Jones was taken by surprise. He was completely unaware of the circumstances being relayed to him. Dr. Jones informed the patient of the impropriety of such behavior and gave the patient the telephone number and address of the state licensing board. He also expressed his personal outrage, vowed to report this misconduct to his national association’s ethics committee, and stated that his association with Dr. Bright would end immediately. Dr. Jones also promised to transfer the patient to another therapist outside the practice. Dr. Jones kept his word. He followed all the steps to protect Dr. Bright’s patient and the profession from this highly unethical conduct. He ended his association with Dr. Bright and had Dr. Bright move to different office space. Therefore, Dr. Jones was surprised and dismayed when he found himself a defendant, along with Dr. Bright, in the malpractice suit that followed. Until recently, supervisor, employers, and contractors have remained “unindicted co-conspirators” in claims alleging sexual misconduct. There are “unindicted” no longer.

The current trend in malpractice litigation is to include anyone who trained, supervised or employed the alleged abusive therapist in the malpractice claim. Why? The reason is the insurance industry has been successful in limiting payments made on behalf of therapists who sexually abuse their patients. The insurance industry will defend the claims, but if the evidence shows that sexual misconduct occurred or if the defendant admits to sexual misconduct, insurance carrier payments of damages or settlements may be excluded or limited by policy language. In other words, the days of the $1 million insurance payments for sexual misconduct on the part of therapists is over. However, since suits alleging improper supervision are not limited, the trend among plaintiffs’ lawyers is to look for the deep pocket and sue the supervisor It is the duty of all health care professionals to prevent any harm from coming to a patient. The supervisor, because of special knowledge or training, can be held ultimately responsible for acts of the supervised. The next few articles will attempt to outline the strategy to make supervisors less vulnerable to the type of malpractice suit just described. For a start, have you ever asked a supervise if he/she is having sex with a patient? If not, how do you know they are not? Asking this question on a consistent basis is a first step in protecting yourself and limited your exposure to this type of claim. Disclaimer: The information provided in this scenario is a composite of actual claims. However, identifying names, locations and circumstances have been masked to assure confidentiality.