A malpractice suit

There are four elements of a malpractice suit. All four must be believed to have been met for an attorney to prevail in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, are reflected in out-of-court settlements.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychologist has breached the standard of care (Black’s Law Dictionary, 1996). (Standard of care will be defined below)

Duty of Care: A duty of care arises when there has been an agreement between the psychologist and the client that they will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because a patient will develop an assumption he has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for longer-term therapy? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavior model of treatment? If the parties have not decided if they wish to work together by about the third session, the civil court may decide for them that a “duty” of care has been established. The exchange of money alone does not establish a duty; however, if there is nothing else for the court to consider, it may look at financial matters in an attempt to establish responsibility.

Standard of Care: The standard of care refers to the level of proficiency against which any other psychologist’s work will be measured or compared – what any other trained psychologist with reasonable experience would do, or the minimum below which a psychologist must not fall (Stromberg, et al, 1988; Caudill & Pope, 1994). Generally, the standard of care is defined by state statute (e.g., Penal Code 11166, child abuse report law) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and it must be followed just as closely as law that has progressed through the legislative process.

Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest” (p. 564). These authors go on to explain that competent treatment can lead to unsuccessful results without the treatment having been negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable” (p. 564).

Demonstrable Harm: Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are the damages? The idea is to return a harmed individual to the condition in which she existed prior to the harm. This can be done in only one way – in a civil suit: In many cases of demonstrable harm with psychologist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award to the victim.

Proximate Cause: Proving that the psychologist’s wrongful conduct caused the damage and that it was the direct or proximate cause of the harm of the plaintiff’s injury is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychologist for their acts that “caused” the damage to the client. The question is, Would the client have been damaged if the psychologist had done anything differently? When injury is alleged to have occurred, the client must still prove that the alleged injury is caused by the psychologist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people – the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995).

Jenny has been Dr. Brown’s client for five months. She calls Dr. Brown saying she is suicidal and wants to “do herself in.” Dr. Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks, and to “get social and meet a new lover” so that she can have a good time and “be normal.”

Later, Jenny feels so bad she takes the entire bottle of her antidepressants along with a bottle of vodka. When she calls Dr. Brown the next day feeling suicidal and depressed, he tells her, “Look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”

Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.

NOTE: See Section A – Elements of Malpractice for review of answer material below:

Question 4

Since Jenny and Dr. Brown had been seeing each other in a therapeutic environment, the first element of a malpractice suit has been met because there was:
A Duty of Care established
A Breach of the Standard of Care
Demonstrable Harm evident
Proximate Cause shown

Question 5

Dr. Brown was probably not adhering to the current ethics code for psychologists, the statutes of his state, or the recent case law. Therefore, he probably:
Did not create a Duty of Care
Breached the Standard of Care
Demonstrated Demonstrable Harm
Provided Proximate Cause

Question 6

Since Jenny wound up in the hospital after talking with Dr. Brown, this probably is evidence of:
Duty of Care
Breach of Standard of Care
Demonstrable Harm
Proximate Cause

Question 7

If Jenny would have been fine if her psychologist had treated her in a more appropriate manner, this is proof of:
Duty of Care
Breach of Standard of Care
Demonstrable Harm
Proximate Cause

Questions 4-7 in order: 4 – a duty of care is established when a client-therapist relationship is developed or created. When Dr. Brown failed to follow the ethics code of his profession, he was 5 – breaching the standard of care of his profession. The answer to question 6 is demonstrable harm. Since his patient wound up in the hospital, harm could be demonstrated. If it could be proven (which is very difficult to do) that the patient would not have suffered damages (or they would not have been as serious) had Dr. Brown done anything differently, then 7 – proximate cause can be claimed by the attorney of the patient.


Baerger (2001) notes, “the fear of being sued may adversely impact clinicians more than the lawsuits themselves” (p. 359). Estimates of the chance of being sued for malpractice range from 1% to 12%, depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree that the methods of minimizing the risk of a malpractice suit (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; Clayton & Bongar, 1994; Cranston et al., 1988) are:

  1. Professional consultation (to be discussed later in this course)
  2. Personal therapy
  3. Membership in professional associations
  4. Continuing education
  5. Familiarity with current treatment methods and monthly journals
  6. Knowledge of the current standard of care
  7. Proper referrals (e.g., hospitalization, medication, adjunctive treatment)
  8. Proper documentation of patient care



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