Professional malpractice, also known as professional negligence, is an instance of negligence or incompetence on the part of a professional that injures or otherwise damages a plaintiff. Professional negligence is a general intent tort, and professional negligence claims involve the breach of duty that is owed by a professional to their client.
The general duty of care is the duty to act as an ordinary person would in similar or identical circumstances. An example of this would be how the driver of a vehicle has a duty to drivers, passengers, and pedestrians to avoid causing harm to them while operating the vehicle. A professional owes a higher duty of care to their clients to act as another skilled person would in the same or similar professional circumstances, because the professional has received specialized education or training.
Malpractice lawsuits arise when a professional, individual, or organization makes a serious error in the services that they provide. Because of this, a patient or client suffers financial and/or physical harm.
Generally speaking, malpractice claims or lawsuits are made against licensed professionals such as:
- Dentists, Orthodontists, and Periodontists;
- Financial Planner;
- Land Surveyor;
- Architect or Engineer;
- Attorneys; and
- The companies or organizations that they work for.
Some broad examples of professional malpractice include:
- Breaching the contract you have with them;
- Putting their own interests before yours; and
- Violating the ethics rules of their specific profession.
It is important to note that professionals can generally only be held liable for malpractice if some governing body regulates the professionals in their industry. An example of this would be how lawyers are regulated by the Bar Association for their state, and can be held liable for malpractice if they fall below professional standards.
In order to prove a claim of professional malpractice, the necessary level of proof differs for each profession, but generally includes:
- Your professional did not render competent service;
- You suffered damages; and
- The incompetent service is what caused those damages.
What Is Therapist Malpractice?
Therapist malpractice is any departure from the accepted standards of therapy, resulting in an injury to the patient. If a therapist acts in such a way that falls below the standard of care that is used by an average therapist, they could be guilty of therapist malpractice.
Different types of therapists can be found liable for therapist malpractice, including:
- Sports therapists;
- Psychological therapists;
- Work-related therapists;
- School therapists; and
- Emotional support therapists.
Because many therapists hold considerably strong influence over their patients, their professional conduct must be especially cautious, as a seemingly minor error in judgment can make a therapist liable for malpractice. Some of the most common therapists errors include:
- Making inappropriate or excessive self-disclosure, which will be further discussed below;
- Using specific techniques without proper training;
- Deliberately misdiagnosing patients;
- Having a sexual relationship with a current or former patient;
- Failing to take adequate notes;
- Failing to take a proper history; and/or
- Failing to consult with peers, or to take the advice of peers.
Therapist malpractice cases may involve a combination of these types of conduct. An example of this would be how the therapist could use a deliberate misdiagnosis in order to get close to the patient, and initiate sexual conduct with them.
What Is Inappropriate Or Excessive Self-Disclosure?
As was previously mentioned, inappropriate or excessive self-disclosure is a form of malpractice that occurs when a therapist speaks about their own personal history or experiences without justification during a session with a patient.
There are absolutely instances in which self-disclosure is appropriate; up to 70% of therapists have used some degree of self-disclosure in their practice. Self-disclosure is only considered to be malpractice if it is excessive or inappropriate.
Two instances in which a therapist would be justified in making a self-disclosure include:
- The disclosure is made for the purposes of the patient, and not the therapist; and/or
- The disclosure of a nature that should be made to a patient with a certain type of disorder. An example of this would be how if a patient is experiencing depression, the disclosure that the therapist has also experienced depression in the past might help the patient by giving them insight into the fact that a person experiencing depression can get past it.
Ultimately, the appropriateness of a therapist’s self-disclosure can be determined by whether it was made with the patient’s best interests at heart. As such, if the patient benefited from the therapist’s self-disclosure, the therapist will probably not be considered to have committed malpractice. It is important to note that even if the patient asks the therapist to disclose personal information, that disclosure can be excessive or inappropriate if it is not made for the sake of aiding the patient in therapy.
If you feel that your therapist made a self-disclosure for reasons other than aiding you in your therapy, the disclosure may have been excessive or inappropriate, and as such may constitute malpractice. To reiterate, any self-disclosure made by your therapist should only be made with your best interests in mind.
How Can I Prove That I Am The Victim Of Therapist Malpractice? Are There Any Defenses?
A therapist has a duty of care to a patient. When that duty is breached, and that breach results in the patient suffering an injury, a malpractice suit can result. In order to prove that you have been a victim of therapist malpractice, you must prove the following elements:
- That an ordinary and reasonable therapist would have acted with more care than your therapist, generally by using expert witnesses to establish the standard of care;
- That you suffered some type of measurable, calculable injuries. Even if a therapist acted in a way that was below the standard of care, if you cannot prove that you were injured by their conduct, you cannot sue for therapist malpractice. This is because the negligent conduct must be the direct cause of your injury; and
- The injuries must be measurable. Courts generally calculate the extent of your injuries using various factors such as additional medical bills and therapy costs, and any lost wages from missing work. If the damages cannot be calculated, the court will likely not find the therapist liable for malpractice.
If you are a therapist who has been accused of malpractice, your defense will be based on the type of charge that you are facing. For a charge associated with sexual misconduct or sexual assault, a common defense would be to prove that there was never physical contact. If there was, you would need to prove that the contact was short and supportive, and directly related to treatment rather than sexual or suggestive in nature.
For a charge associated with negligent practice, you will need to prove that you are fully trained, educated, and qualified for the practice that you used in treatment. Trying out controversial methods of therapy or methods in which the therapist has acted unilaterally without peer advice could result in professional malpractice charges. As such, proving that you were fully trained to provide such treatment could provide a defense.
Additionally, notes and documents associated with a patient’s therapeutic history could be helpful in proving you exercised good judgment, which helps in a defense against malpractice. Notes provide the judge or jury with information regarding what occurred during the session.
Other legal defenses may be used. An example of this would be how consent is a major defense used in other malpractice claims. If the patient consented to the conduct in question, it could provide a defense for the therapist, especially if the therapist was acting within their approved range of duties or treatment methods.
An example of this would be when a patient has consented to the therapist touching them for the purposes of massage therapy. If the patient has provided their consent to such treatment, they likely will not be able to claim sexual assault or misconduct. The defense is strengthened if the patient has signed a written consent form indicating that they consent to the therapist touching them in such a way.
Do I Need A Lawyer For Help With Inappropriate Or Excessive Self-Disclosure From My Therapist?
If your therapist has been making self-disclosures that are inappropriate or excessive, you should consult with a liability lawyer.
An experienced attorney can help you understand your legal rights and options according to your state’s specific malpractice laws, and will also be able to represent you in court, as needed.