MALPRACTICE AS A REGULATOR OF ...

PSYCHOTHERAPY: THEORY, RESEARCH AND PRACTICE VOLUME 18, #3, FALL, 1981

MALPRACTICE AS A REGULATOR OF PSYCHOTHERAPY SAMUEL KNAPP

LEON VANDECREEK*

Lehigh University

Indiana University of Pennsylvania

ABSTRACT: The most widely acknowledged means of regulating professional psychology are through licensing and certification laws, the self-regulatory activities of professional associations, and by redress through malpractice claims. However, malpractice claims are rare because of difficulties in establishing standards of proof and because clients are reluctant to sue. Attempts to expand the malpractice and tort liability of psychologists do not address a major deterrent to claims: the reluctance of clients to sue. Otherforms of regulation are needed to compensate for the inability of malpractice to regulate professional psychology. INTRODUCTION

Recently psychologists have been paying more attention to the social regulation of their profession (Gross, 1978; Hare-Mustin et ah, 1979). Common means of regulating psychology are through licensing and certification, the self-regulatory activities of professional associations, and by redress through malpractice claims. Karston (1978) stated that the ineffectiveness of any one of these controls requires strengthening the other two to protect the public. Despite an increase in malpractice claims against psychologists, psychotherapy still remains a relatively safe field from the standpoint of malpractice litigation. Psychologists have had fewer claims than psychiatrists, who, in turn, represent a low risk group among physicians (Cassidy, 1974). This article discusses the failures of malpractice litigation to serve as a means of regulating the profession and suggests that other means of regulating the profession need to be strengthened. * Requests for reprints should be sent to Leon VandeCreek, Psychology Department, Indiana University of Pennsylvania, Indiana, PA 15705.

Definition of Malpractice A malpractice suit must prove that the psychologist's behavior fell below the minimum standards of treatment used by other reputable psychologists, that the client suffered harm, and that the negligent acts caused the client's harm (Knapp, 1980). Typically, the courts do not determine what constitutes appropriate practice, and judges do not establish standards of care in highly specialized fields like psychotherapy or medicine. It is assumed that lay juries cannot understand and evaluate the technical complexities of these fields. Rather, the courts usually rely on expert witnesses from the field of psychology to determine what constitutes the minimum standards of the professional psychologist. Psychologists may be evaluated according to their system of therapy. For example, a behaviorist would be measured according to the acceptable practice of behavior therapy and not client-centered therapy. The court will recognize the well known and important schools of psychotherapy, and, generally speaking, the courts will accept any school as a legitimate form of psychotherapy if a substantial minority of psychologists practice it. There have only been a few instances where the courts have bypassed the testimony of expert witnesses and established their own standards of care. For example, in Helling v. Carey,1 a court used ophthalmological standards stricter than the standards established by the profession. However, these cases are the exception and not the rule. More relevant to psychology is the waiver of expert witness 1 Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974).

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requirements when a prima facie case exists. Prima facie means that the inappropriateness of the act falls within the common knowledge of laypersons. An example of a prima facie case in surgery would be if the surgeon cut off the wrong leg. The court needs no expert witness to prove that that was unskillful. Prima facie cases in psychotherapy would include the blatantly unskillful acts mentioned above such as having sex with clients, hitting them, or breaking the confidentiality of the relationship.

claims here also appears to underrepresent the frequency of these acts. Other negligent acts in psychotherapy such as insensitivity, a flippant attitude, or cruel remarks may be less obvious, but nonetheless do occur and harm clients. Most psychotherapists acknowledge that some clients deteriorate during psychotherapy (Strupp et al., 1977). Unfortunately, not all of the deterioration is due to the limits of knowledge in the profession; it may also occur because some psychologists fail to act with reasonable skill.

Psychotherapy Needs Regulation

The Ineffectiveness of Malpractice as a Regulator

There is no evidence to claim, as Leonard Haber did, that the low malpractice rates of psychologists are evidence that "psychologists are notoriously proper in their conduct and ethical in their conduct" (Greenberg, 1979, p. 6). There is no proof that psychologists have higher ethical standards than neurosurgeons. More likely, the low rate of malpractice claims reflects the reluctance of clients to sue and the difficulty in proving malpractice in psychotherapy, than the virtuousness of psychologists. Unfortunately, psychologists do act negligently. For example, Holroyd & Brodsky (1977) surveyed a sample of psychologists and found that three percent have had sex with clients during the course of psychotherapy. This practice often harms clients (Butler & Zelen, 1976) and has been the basis of several malpractice suits (Roy v. Hartogs2; Zipkin v. Freeman*). Yet the number of malpractice claims appear to represent only a minuscule amount of the actual incidence of this abuse. The authors have no data on the frequency of other blatantly negligent acts. Hitting clients (Hammer v. Rosen4; Abraham v. Zaslow5) and breaking confidentiality (Berry v. Moench6) have both been the basis of malpractice acts. Yet, the number of malpractice 2 Roy v. Hartogs, 81 Misc. 2d 350 366 N.Y.S. 2d 297 (1975). 3 Zipkin v. Freeman, 436 S.W.2d 753 (1968). 4 Hammer v. Rosen, 7 N.Y.2d 376, 165 N.E.2d 756 (1960). 5 Abraham v. Zaslow, No. 245862 (Cal. Super. Ct., June 30,1972). 6 Berry v. Moench, &Utab 2d 191,331 P.2d 814(1958).

Malpractice does not effectively regulate psychotherapy. Malpractice claims are rare in psychotherapy for two reasons: standards of proof are hard to establish and clients are reluctant to sue. Several factors make the proof of a malpractice case difficult. First, few common standards apply to all schools of psychotherapy. Second, the lack of hard evidence such as bruises or X rays make proof of emotional harm difficult. Consequently, the courts are wary of simulated or exaggerated claims of harm (Prosser, 1971). Finally, it is hard to show the causative link between the psychologist's act and the emotional harm. "Since knowledge of psychiatric process is limited, such a link is difficult to establish under the clearest conditions and impossible under the murkiest" (Fishalow, 1974, p. 193). Another reason for the inability of malpractice litigation to regulate psychotherapy is that clients are generally reluctant to sue their psychotherapists. Cassidy (1974) noted "an inverse correlation between the contact a physician has with his patients and the incidence of malpractice actions" (p. 130). He noted that surgeons who have little contact with patients have high malpractice rates. General practitioners, who have more contact with their patients, have lower malpractice rates. Psychiatrists, who have the most frequent patient contact among physicians, have still even lower rates. Even among psychiatrists, the malpractice claims are most frequent for chemotherapy or ECT which involve little direct patient contact. In Slawson's (1978) survey of psychiatrists in California, he found that

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those psychiatrists who never prescribed medicine had no malpractice claims in the last five years. It might also be noted that psychotherapists and psychologists in particular only pay a small fraction of the-cost that other higher risk physicians do for malpractice insurance (DeLeon & Borreliz, 1978). The same principle of high contact and low malpractice claims may apply to psychologists as well. The authors speculate on several factors inherent in the frequent therapist-patient contacts that explain the reluctance of clients to sue. Perhaps clients perceive that if the doctor kept seeing them, at least the doctor tried to help, whereas infrequent contact might imply that the doctor did not really care or try to do better. The importance of dependency in many of those who seek psychotherapy is also important and reduces the likelihood that such a client will initiate a claim against the one on whom the client is dependent. Similarly, active client participation in psychotherapy may increase the client's belief in the technique. More active participation (e.g., encounter groups, sexual behavior) may strengthen the belief in the procedure. Also, clients may believe they have no redress against a therapist when they actively participate, even though the fiduciary relationship gives the therapist responsibility in the venture. Conversely, in passive treatments like ECT or chemotherapy, patients would more likely attribute a mistake in judgment or maltreatment to the doctor. Finally, people do not like to sue someone they know well, like, or who claims to have their best interest in mind, especially when the therapist has spent many hours trying to help the client. Other factors in addition to the frequency of therapist-client contact may also dissuade clients from suing. Passive, depressed, dependent, or submissive clients are unlikely to initiate a difficult undertaking such as a lawsuit. As a class they have more functional limitations that impair their likelihood of initiating a lawsuit. Another reason that clients seldom sue is that they may hesitate to have their personal problems brought out in court. They may consider the public nature of the remedy worse than the original injury, similar to the problems often encountered in rape cases. Finally, clients expecting improvement may more readily initiate a lawsuit. If a tech-

nique is not really expected to work, if the client knows others who have not improved from similar problems, or it the client judges the problem to be a serious one, the client may not view the lack of improvement as malpractice even if in fact it is. In this case, the therapist needs to commit very gross errors for the client to suspect malpractice. Attempts to Expand Tort Liability Three possible changes could expand the tort liability of psychologists. First, courts could establish stricter minimum standards of care in malpractice cases. On reviewing the literature on malpractice in psychotherapy, Hogan (1979) commented, "As long as therapists restrict their practice to talk, interpretations, and advice, they will remain relatively immune from suit, no matter how poor their advice, how damaging their comments, or how incorrect their interpretations" (p. 322). A cynic could define a reputable psychologist as one who does not hit clients, have sex with them, or gossip about them in public places. Other than that, anything goes. Margolis (1973-1974) has suggested that courts give too much discretion to psychotherapists. He suggests "meaningful standards of care can be formulated which are capable of distinguishing negligence from due care in less extreme circumstances" (p. 652). It should be possible to define standards of treatment for a clientcentered therapist according to the use of minimum standards of facilitative conditions, or to define minimum standards for a rationalemotive therapist according to the use of minimum standards of rational or inelegant techniques. One way in which the courts have moved toward stricter standards of treatment is by gradually abandoning the locality rule. This rule allowed the court to judge the minimum level of competence of professionals according to the standards of the community in which the professional practiced. However, courts are replacing this standard by one which measures the professional's performance against national standards (Narcato v. Grob1). Now courts may look to the national body of psychotherapeutic knowledge and 7

Narcato v. Grob, 180 N.W.2d 753 (1970).

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practice to determine standards of conduct. Artificial regional boundaries will no longer shield substandard performance. "Strict liability" and "no-fault" compensation plans allow another potential expansion of the malpractice liability of psychologists (DeLeon & Borreliz, 1978; Furrows, 1978; Kennedy, 1975). Although the specifics of different strict liability approaches vary from proposal to proposal, they share a common base. Under the current system of malpractice law, the client must prove that the therapist's negligent act caused harm. The therapist must be found to be "at fault." Under a strict liability plan plaintiffs could be compensated by showing they received harm connected with the psychotherapy, but the plaintiff need not prove that the therapist acted negligently. In a plan suggested by DeLeon & Borreliz (1978) the no-fault procedures might function similar to the model of workman's compensation or no-fault automobile insurance. The plan would compensate clients whenever harm occurred without resolving the issue of professional competence. These authors make the point that the current malpractice procedures discourage many potential plaintiffs from filing claims because of the lengthy delays in procedures, the highly emotional atmosphere in a jury process, and the often arbitrary determinations of the current fault system. Thus, a no-fault system might result in more claims but it would also bring to light a greater percentage of inadequate professional performance and serve as a better regulator of practice. A final solution is for clients to seek other tort remedies besides malpractice. Harris (1973) stated that "while psychotherapists have been innovative and daring in choice of treatment, so too have attorneys in choosing theories of liability" (p. 411). For example, criminal charges could be lodged against psychologists for some abuses. Of course, criminal charges require a higher standard of proof than civil cases. But, in some ways criminal charges are easier to prove than malpractice claims. It must only be shown that the events occurred, not that the practice deviated from the professional standards, or that the acts caused harm to the client. After criminal charges are proven, the client could sue for damages. Conviction of a criminal charge is

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acceptable as proof in civil cases in some states. In other states, it is a presumption of proof or evidence against the convicted psychotherapist. Sex with clients could be a basis of criminal charges in two states (Stone, 1976). Hitting clients could be the basis of a battery charge (Harris, 1973). Breaches of confidence could conceivably result in a suit for breach of contract or invasion of privacy (Eger, 1976). Need to Strengthen Other Means of Social Control Expansion of tort liability would make it easier for a client to win in court or to receive compensation without proof of negligence. However, the expansion of tort liability would not address a major cause for the dearth of malpractice cases: the reluctance of clients to sue. Consequently, malpractice is not now and is not likely to be a powerful regulator of professional practice. Karston (1978) has stated that "if the negligence standard is impossible to implement effectively, other sources of control over the psychiatrists who practice psychotherapy must be evaluated in the light of the unavailability of that alternative" (p. 604). The other sources of control, licensing and the self-regulatory activities of professional associations, can also provide disciplinary measures against negligent behavior. For example, one advantage that associations like APA have over malpractice procedures is that APA members may be asked to respond to any legitimate inquiry from the Ethics Committee. The Association is also empowered to announce to all members the names of persons dropped from membership for violations of the ethical code. Furthermore, these two areas of licensing and professional associations can be seen as preventive of negligent acts. In contrast, malpractice suits make a direct impact on only one or a few people (plus an indirect effect on others who read about it), and it occurs in a hit-or-miss fashion after the fact. Yet licensure and professional associations can hopefully bar from practice persons lacking the minima of knowledge and training. They can impact on the quality of professional training programs and encourage or require continued education. Licensure and professional associations also aim to improve skills from a minimal to

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higher levels, while malpractice claims result from the worst examples of behavior, not just from average, below average, or minimal standards of practice. However, this suggests that a gray area of practice exists from average to minimally adequate which will not fall under the corrective remedies of malpractice nor under the purview of licensure and continuing education programs since few states now require continued education or reevaluation of licensed persons. A strengthening of these requirements as well as relicensure based on competency and restricted or specialty licensing would begin to reduce the size of this gray area of inadequate performance. Finally, there is a need for some type of review and reporting of questionable performance even if it does not lead to litigation. The current peer review procedures could become an effective feedback and evaluation mechanism from clients to their therapists and professional peers. A more extreme measure could encourage or require client input into relicensure procedures. In summary, malpractice in its present form does not and probably cannot effectively regulate psychotherapy. Even expansion of the tort liability of psychologists does not address the impediment of the reluctance of clients to sue. Other means of social control need to be expanded to prevent abuses and encourage higher standards of practice. REFERENCES BUTLER, S. & ZELEN, S. Sexual intimacies between therapist and patients. Psychotherapy. Theory, Research and Practice,!*, 139-145,1977. CASSIDY, P. Liability of psychiatrists for malpractice. University of Pittsburgh Law Review, 36,108-137,1974.

DELEON, P. & BORRELIZ, M. Malpractice: Professional

liability and the law. Professional Psychology, 467-477', 1978. EGER, C. Psychotherapists' liability for extrajudicial breaches of confidentiality. Arizona Law Review, 18, 1061-1064,1976. FISHALOW, S. E. The tort liability of the psychiatrist. The Bulletin of the American Academy of Psychiatry and the Law.3,191-230,1975. FURROW, B. Defective mental treatment: A proposal for the application of strict liability to psychiatric services. Boston University Law Review, 58,391-434, 1978. GREENBERG, J. Introducing the mayor of Miami Beach: Leonard Haber. APA Monitor, 10(2), 6-7, 1979. GROSS, S. The myth of professional licensing. American Psychologist, 33,1009-1016,1978. HARE-MUSTIN, R., MARECEK, J., KAPLAN, A. & Liss-

LEVINSON, N. Rights of clients, responsibilities of therapists. American Psychologist, 34,3-16,1979. HARRIS, M. Tort liability of the psychologist. University of San Francisco Law Review, 8,405-436, 1973. HOGAN, D. The Regulation of Psychotherapies (Vol. 1). Cambridge, Mass.: Ballinger, 1979. HOLROYD, J. & BRODSKY, A. Psychologists' attitudes and

practices regarding erotic and nonerotic physical contact with patients. American Psychologist, 32, 843-849, 1977. KARSTON, M. Regulating medical psychotherapists in Illinois: A question of balance. John Marshall Journal: Practice and Procedure, 11,601-634, 1978. KENNEDY, C. Injuries precipitated by psychotherapy: Liability without fault as a basis for recovery. South Dakota Law Review,20,401-411',1975. KNAPP, S. A primer on malpractice for psychologists. Professional Psychology, 11,606-611,1980. MARGOLIS, R. Psychiatric negligence. Drake Law Review, 23,640-652,1973-1974. PROSSER, W. Law of Torts (4th ed.). St. Paul, Minn.: West, 1971. SLAWSON, P. Psychiatric malpractice: A California statewide survey. The Bulletin of the American Academy of Psychiatry and the Law, 6,58-63, 1978. STONE, A. The legal implications of sexual activity between psychiatrist and patient. American Journal of Psychiatry, 133,1138-1191,1976. STRUPP, H., HADLEY, S. & GOMES-SCHWARTZ, B. Psycho-

therapy for Better or Worse. New York: Jason Aronson, 1977.