Therapist malpractice is any departure from the accepted standards of therapy that results in an injury to the patient. If a therapist acts in a way that falls below the standard of care used by an average therapist, they may be guilty of therapist malpractice.
Different types of therapists can be found liable for therapist malpractice. This can include:
- Sports therapists;
- Psychological therapists;
- Work-related therapists;
- School therapists; and
- Emotional support therapists.
While the above is an incomplete list, keep in mind that pretty much any type of therapist can be held liable if they hold themselves to be a professional who offers some type of specialized care.
What are Some Common Types of Therapist Malpractice?
Because many therapists hold very strong influence over their patients, their conduct must be particularly cautious. A seemingly minor error in judgment can make a therapist liable for malpractice. Some of the most common therapists errors are:
- Making inappropriate or excessive self-disclosure;
- Using 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.
Some therapist malpractice cases can involve a combination of these types of conduct. For instance, the therapist might use a deliberate misdiagnosis in order to get close to the patient and initiate sexual conduct with them.
How Can I Prove I am a Victim of Therapist Malpractice?
There are different kinds of malpractice charges, but each must stem from a foundation of the therapist’s failure to follow a duty of care. This follows the same basic format as a negligence claim. Negligence charges have specific elements: duty of care, breach of the duty of care, causation, and injury.
A therapist has a duty of care to a patient. If that duty is breached, and that breach results in the patient suffering an injury, then a malpractice suit can result. To prove that you have been a victim of therapist malpractice, you must be able to show several things:
- You must be able to show that an ordinary reasonable therapist would have acted with more care than your therapist. Often, you will need expert witnesses to establish the standard of care. In other words, you need to show that the therapist disregarded the normal duties of care that a therapist would extend to their patients.
- You must show that you suffered some injury. The therapist’s breach of their duty must result in 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 his conduct, you cannot sue for therapist malpractice. The negligent conduct must be the direct cause of your injury.
- The injuries must be measurable. Courts will often calculate the extent of your injuries using various factors, including additional medical bills, additional therapy costs, any lost wages from missing work, and other factors. If the damages can’t be calculated, the court will likely not find the therapist liable for malpractice.
What are Some Defenses to Therapist Malpractice?
If you are a therapist who has been accused of malpractice, your defense will be based on the kind of charge you are faced with.
- For a charge regarding sexual misconduct or sexual assault, a common defense is to prove there was never physical contact, or if there was, that it was short and supportive, and related to treatment rather than sexual or suggestive.
- For a charge regarding negligent practice, it can help to show that the therapist was fully trained, educated, and qualified for the practice he or she used in treatment on the patient.
- Trying out controversial methods of therapy or methods in which the therapist has acted unilaterally without peer advice could lead to malpractice charges. Proving that the therapist was fully trained to provide such treatment could provide a defense.
- Notes and documents related to a patient’s therapeutic history could be very helpful in proving that the therapist exercised good judgment, and this helps in a defense against malpractice.
- Notes give the judge or jury information on what occurred during the session. Using notes to offset or disprove negligence allegations will help in a therapist’s defense against malpractice charges.
Other legal defenses may sometimes be used in a therapist malpractice case. For instance, consent is a major defense often used in other malpractice claims. If the patient consented to the conduct in question, it might 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 is where 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 won’t be able to claim sexual assault or sexual 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 manner.
Should I Consult a Lawyer for Help with a Therapist Malpractice Lawsuit?
If you think that you are a victim of therapist malpractice, you may want to consult a consumer lawyer to learn more about your rights. Malpractice cases can be tricky and an experienced malpractice lawyer can help you determine if you have a strong case. If necessary, a malpractice lawyer can represent you in court and ensure your rights are protected.