An Expert Witness Weighs in on Therapist Malpractice: An interview with Dr. Frederic Reamer
Curt and Katie interview Dr. Frederic Reamer about his perspective as an expert witness opining on therapist conduct. We talk about the three types of cases he sees (mistakes, challenging decisions, and misconduct) as well as what therapists can do to protect and set themselves up for success.
Click here to scroll to the podcast transcript.Transcript
An Interview with Dr. Frederic Reamer
Frederic G. Reamer has been on the faculty of the School of Social Work, Rhode Island College since 1983. His teaching and research focus on professional ethics, criminal justice, mental health, health care, and public policy. Dr. Reamer received his Ph.D. from the University of Chicago and has served as a social worker in correctional and mental health settings. He chaired the national task force that wrote the Code of Ethics adopted by the National Association of Social Workers in 1996 and served on the code revision task force. Dr. Reamer also chaired the national task force sponsored by NASW, the Association of Social Work Boards, Council on Social Work Education, and Clinical Social Work Association that developed standards governing social workers’ use of technology in professional practice.
Dr. Reamer serves as associate editor of the Encyclopedia of Social Work and served as editor of the Journal of Social Work Education. He also served on the State of Rhode Island Parole Board for 24 years.
Dr. Reamer has lectured nationally and internationally on social work and professional ethics, including in India, China, Singapore, South Korea, Japan, Taiwan, and in various European nations. His books include Risk Management in the Behavioral Health Professions; Boundary Issues and Dual Relationships in the Human Services; Social Work Values and Ethics; The Philosophical Foundations of Social Work; Heinous Crime: Cases, Causes and Consequences; Criminal Lessons: Case Studies and Commentary on Crime and Justice; On the Parole Board: Reflections on Crime, Justice, Redemption, and Justice; Risk Management in Social Work; The Social Work Ethics Casebook; Ethical Standards in Social Work; Ethics and Risk Management in Online and Distance Social Work; Moral Distress and Injury in Human Services; Teens in Crisis: How the Industry Serving Struggling Teens Helps and Hurts our Kids; and The Social Work Ethics Audit, among others. Dr. Reamer serves as an expert witness in many court and licensing board cases throughout the United States.
In this podcast episode, we share an expert witness perspective on therapist mistakes
Curt and Katie talk with Dr. Frederic Reamer about how therapists can get in trouble as well as what an expert witness does when evaluating these therapist mistakes.
What do Expert Witnesses do for cases involving therapists?
- Evaluate malpractice and standard of care
- Opine on whether therapists have acted appropriately in their role as professionals
- Reviewing records, reports, depositions, and testifying on trial
What are the different types of cases that are brought against therapists?
“I would say the overwhelming majority of mental health counselors, clinical social workers, psychologists, psychiatrists, marriage and family therapists, substance use disorder specialists are fine people who care deeply about their clients. They are good, good, good people. And then like every profession, we have a small percentage of people who in my opinion, do not belong in this field….They engage in sexual relationships with clients. They write notes that are fraudulent about clinical sessions that never happened. They bill insurance companies for sessions that never happened. They are severely impaired and they are providing substandard services to their clients and harming them…Again [it is a] small percentage, but it accounts for a large percentage of the lawsuits.” – Dr. Frederic Reamer
- Good people making mistakes
- Challenging ethical dilemmas (i.e., making a decision that is not wrong, but leads to a bad outcome)
- Misconduct (e.g., having sex with clients, inappropriate dual relationships, impaired therapists)
How can therapists set themselves up to avoid getting sued or licensing board complaints?
“I am not exaggerating when I say the overwhelming majority of lawsuits and licensing board complaints are determined by the outcome. The outcomes are determined by the quality of the documentation.” – Dr. Frederic Reamer
- Appropriate documentation
- Consultation with colleagues or supervisors (and document this consultation)
- Have sufficient malpractice insurance
Resources for Modern Therapists mentioned in this Podcast Episode:
We’ve pulled together resources mentioned in this episode and put together some handy-dandy links. Please note that some of the links below may be affiliate links, so if you purchase after clicking below, we may get a little bit of cash in our pockets. We thank you in advance!
School of social work Rhode Island: Frederic Reamer’s profile
Frederic Reamer’s Email address
Dr. Reamer’s books: see bio (or see Amazon author page)
Relevant Episodes of MTSG Podcast:
Dual Relationships – Pros and Cons
It’s the Lack of Thought That Counts: Ethical Decision Making in Dual Relationships
Should Therapists Admit to Making Mistakes in Therapy?
Liability Hot Potato: Defensive Therapy practices that give clients inadequate care
The Risks and Consequences of Failing to Report Child Abuse
Now Modern Therapists Need to Document Every F*cking Thing in Our Progress Notes?!?
Who we are:
Curt Widhalm, LMFT
Curt Widhalm is in private practice in the Los Angeles area. He is the cofounder of the Therapy Reimagined conference, an Adjunct Professor at Pepperdine University and CSUN, a former Subject Matter Expert for the California Board of Behavioral Sciences, former CFO of the California Association of Marriage and Family Therapists, and a loving husband and father. He is 1/2 great person, 1/2 provocateur, and 1/2 geek, in that order. He dabbles in the dark art of making “dad jokes” and usually has a half-empty cup of coffee somewhere nearby. Learn more at: http://www.curtwidhalm.com
Katie Vernoy, LMFT
Katie Vernoy is a Licensed Marriage and Family Therapist, coach, and consultant supporting leaders, visionaries, executives, and helping professionals to create sustainable careers. Katie, with Curt, has developed workshops and a conference, Therapy Reimagined, to support therapists navigating through the modern challenges of this profession. Katie is also a former President of the California Association of Marriage and Family Therapists. In her spare time, Katie is secretly siphoning off Curt’s youthful energy, so that she can take over the world. Learn more at: http://www.katievernoy.com
A Quick Note:
Our opinions are our own. We are only speaking for ourselves – except when we speak for each other, or over each other. We’re working on it.
Our guests are also only speaking for themselves and have their own opinions. We aren’t trying to take their voice, and no one speaks for us either. Mostly because they don’t want to, but hey.
Stay in Touch with Curt, Katie, and the whole Therapy Reimagined #TherapyMovement:
Consultation services with Curt Widhalm or Katie Vernoy:
Connect with the Modern Therapist Community:
Our Facebook Group – The Modern Therapists Group
Modern Therapist’s Survival Guide Creative Credits:
Voice Over by DW McCann https://www.facebook.com/McCannDW/
Music by Crystal Grooms Mangano https://groomsymusic.com/
Transcript for this episode of the Modern Therapist’s Survival Guide podcast (Autogenerated):
Transcripts do not include advertisements just a reference to the advertising break (as such timing does not account for advertisements).
… 0:00
(Opening Advertisement)
Announcer 0:00
You’re listening to the Modern Therapist’s Survival Guide where therapists live, breathe, and practice as human beings. To support you as a whole person and a therapist, here are your hosts, Curt Widhalm, and Katie Vernoy.
Curt Widhalm 0:15
Welcome back modern therapists, this is the Modern Therapist’s Survival Guide. I’m Curt Widhalm, with Katie Vernoy. And this is the podcast for therapists about the things that we do in our practices, the things that we do to manage ourselves, protect our practices, the ways that we do things. And a lot of our listeners know that I love the law and ethics sorts of things. And I’m always happy when we have other guests come on to our practice. And it’s not just me telling everybody, this is what you should do. But other people also agree with me. And we are joined today by Dr. Frederic Reamer, Doctor of Social Work, researcher in ethics, and expert in risk management, expert witness stuff. So thank you so much for joining us here today.
Dr. Frederic Reamer 1:00
My pleasure. Thanks for having me.
Katie Vernoy 1:02
We’re excited to get into this conversation. But before we do, I wanted to ask you the question we ask all our guests, who are you and what are you putting out into the world?
Dr. Frederic Reamer 1:11
Well, most importantly, I’m a husband and a father. That’s the most important stuff. And in my professional life I’ve been a professor of social work for decades. I got into the social work profession many, many years ago, in order to work in prisons. I’ve actually spent much of my career outside of academia working in prisons, federal and state prisons. In fact, many years ago, when I was working with an inmate in a federal prison, I encountered my first ethical dilemma, which is what led me down this rabbit hole. And it’s a big and wide rabbit hole. There was an inmate with whom I was working, who shared with me some information “confidentially” air quotes that led me to believe that he might harm another inmate with whom he was having a dispute. And I had to wrestle with the limits of the inmates confidentiality rights, I realized I didn’t know a whole lot about this subject at that point. And that’s when I took the deep dive into all this material. And I’ve now spent decades of my career focused on studying professional ethics and helping to develop ethical standards in social work and the behavioral health professions. And as I gather we’ll discuss, serving as what the courts call an expert witness, in many, many litigation malpractice cases throughout the United States, but also as an expert witness in many licensing board cases.
Curt Widhalm 2:39
I think that this is one of the areas that I don’t have a ton of experience with when it comes to kind of the law and ethics end, is getting into expert witness kind of work. So, can you tell us how you go from being somebody who’s interested in laws and ethics sorts of stuff and talks about it a lot, and how you get into being the person that everyone kind of relies on as being you’re the expert?
Dr. Frederic Reamer 3:07
Well, it wasn’t part of my life plan. You know how things happen, how you stumble into these things. And so I had spent many years focusing especially on identifying ethical dilemmas in what we now call behavioral health. That term didn’t exist when I started doing this. Wrestling with complex issues around boundaries and dual relationships and confidentiality exceptions and conflicts of interest, things like that. And much of my writing, lecturing was on ethical decision making. And then in October of 1990, I got a phone call from an attorney in Charlotte, North Carolina. I picked up the phone, the caller said Hi, Dr. Reamer, my name is and I’m an attorney with the law firm of and that got my attention because I’ve never gotten a phone call from an attorney before other than you know, when my wife and I, you know, closed on a house kind of thing. And she went on to explain that her law firm was representing the mother of a young man who was a client in a program that serve people with persistent severe chronic mental illness, and he had died by suicide. And the mother was suing the program as a corporate entity, but also individual practitioners, psychiatrists, social worker, mental health counselor, alleging that they had engaged in malpractice negligence, and that there were some ethical issues involved and the lawyer wanted to know whether I would be willing to take a look at the file. I had never done that before. I’d never even heard the term expert witness but I learned real fast. The next day, a Federal Express truck showed up in the parking lot of my office and the driver deposited a very large box with a lot of paper in it on the floor of my office. I was asked to review all of those records and it was a mountain of recordc. And I was asked to opine O-P-I-N-E, that’s the verb that lawyers use when they want an expert witness to express opinions about whether the professionals in that case net their prevailing standards of practice of both ethical and clinical with regard to the management of suicide risk. And that was again October 1990. And I’m not hyperbolizing here. Since then, several decades into this, not a single month has gone by not one month has gone by when I have not received similar queries from attorneys. Some of them representing plaintiffs, the party bringing a lawsuit. Some of them representing defendants, the practitioners who were being sued. Some of those lawyers are representing practitioners who’ve had licensing board complaints filed against them. But sometimes I get contacted by lawyers representing licensing boards themselves. In other words, I get it from every angle. And in my role as an expert witness, I am asked to share my thoughts about the extent to which practitioners did or did not comply with prevailing ethical standards; whether I believe there was any evidence of negligence or malpractice that would be in a lawsuit, or in a licensing board case, whether there’s evidence that the practitioner did not comply with the ethical standards adopted by the licensing board.
Katie Vernoy 6:27
How do you like that work? Because it sounds fascinating.
Dr. Frederic Reamer 6:31
Well, I would say it’s mixed. On the one hand, it is really demanding, it is among the most challenging intellectual work I do. You know, when I dive into a case, then I have to review clinical records, and now what we call ESI electronically stored information, every text message, every email message, every online post, when I review all this stuff, I have to think really hard about the extent to which practitioners met what we call standards of care. That’s a legal term. And it’s puzzle solving. So it’s not easy. It’s not routine. It’s not tedious. It’s not redundant, every case is unique. That’s the sort of interesting part, engaging part, challenging part. But there’s another side to that coin, every coin, I know has two sides. And the other side of that coin is it’s extremely stressful. I can’t say I enjoy that part of it. Why is it stressful? Number one, I know that practitioners livelihoods, their careers are often on the line; whether it’s a litigation case, or a licensing board case, a bad outcome can be ruinous to a career. It can be ruinous financially, it can be ruinous to one’s reputation, it can put somebody out of business. And so I feel a great deal of responsibility for that. Also, depending on the case, I often have to testify, I have to testify in two different contexts: depositions, that’s part of what lawyers call the discovery phase of the case. If it’s litigation, that’s pre trial, discovery is an opportunity for lawyers on both sides of the case to find out what evidence the other side has. And one mechanism is what’s called a deposition. I imagine most of you have heard that term. And a deposition involves sworn testimony. So, I literally have to raise this hand, this one doesn’t count, gotta raise this one and solemnly swear, to tell the truth, the whole truth and nothing but the truth as a stenographer in the room, who’s getting down every single syllable. If I say, Gee, can we take a short break? That’ll be in a transcript. If I say in response to a question, uh-huh, it will show up in the transcript as U H dash H U H, everything counts. And so in a deposition I’m typically cross examine, you know, trial testimony and deposition testimony, there’s what’s called direct examination, that’s the friendly questioning by an attorney on your side of the case, so to speak. But cross examination, the other kind of questioning is adversarial. I don’t, I’m not an adversarial kind of guy. I’m not, you know, I didn’t get into social work, because I like adversarial proceedings. But if you’re going to do this kind of work, you have to get used to the fact that cross examination is adversarial; and opposing counsel, that’s the term we use, the attorney on the other side of the case, opposing counsel’s job, whether I like it or not, is to try to convince a judge, a jury that my fourth grade teacher made a horrible mistake when she recommended that I be promoted to the fifth grade, that I am so incompetent, I should not have gone on to the fifth grade. I’m exaggerating, of course, but that’s the challenge my opinions, to challenge the things that I’ve said in writing and books or journal articles about everything. That’s their job. And you know, in some ways, it’s like theater in that everybody’s playing a role. The same thing goes on in trial testimony. Cross examination is not fun. So every time I get sworn in for a deposition or trial testimony for cross examination purposes, there’s always some sort of underlying anxiety. How am I going to get attacked? How am I going to get challenged? Am I going to, you know, performing well, so to speak. When I say it’s theater, let me give you a quick example of what I mean. This has happened to me twice, but I’ll give you one instance: I testified in a case in Louisiana. The case involved prosecution by the Attorney General’s Office of the behavioral health practitioner, who was the director of a prominent agency, who allegedly failed to comply with ethical standards when he agreed to hire several former clients to work in that agency. And I was brought in as the expert witness by the Attorney General’s office. And I was cross examined by this practitioner’s attorney. So, you know, I’m used to that. And he grilled me, he grilled me, he really went after me. And I think I did fine. And then at the end of the day, this is what literally happened. Okay, we’re done. You know, everybody’s packing up their stuff. We’re walking out of the courthouse, and I bumped into that attorney, the one who just tried to turn me into chopped liver for a couple of hours. And he walked up and he shook my hand and he put his arm around my shoulder. And he said, Dr. Reamer, I just want to tell you, you were terrific, you did a great job. And I have another case that I’m handling right now where I think I want to use you as an expert witness. So, here’s a guy who was just trying to destroy me for two, two plus hours, basically saying, Hey, we’re done, flip the switch. Now, now you’re a good guy, and he may want to use you. That is theater, and everybody’s just doing their job. It’s not fun. It’s anxiety producing. Every word counts in a deposition, every word counts in trial testimony. And you know, I’m a human being, I don’t want to screw it up. So you know that that’s not fun.
… 12:24
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Curt Widhalm 12:26
What kinds of cases do you see typically coming up or that you are brought in for your viewpoints on things?
Dr. Frederic Reamer 12:34
Well, I would say there are three patterns that I’ve seen during the decades I’ve been doing this kind of work. Number one: cases involving what I would call mistakes, just good mental health counselors, good social workers, good psychologists, good substance use disorder professionals, et cetera, et cetera. These are fine people who got into this business for all the right reasons. They don’t want to hurt anybody. They make mistakes. So, going back to that Louisiana example; that practitioner was prosecuted because he failed to create policies and protocols to prevent a conflict of interest when he hired former clients; there were some issues around boundaries, issues around access to confidential records that the former clients now staff shouldn’t have had access to. He made mistakes, a good guy made mistakes. Here’s another example: Clinicians in what I call the digital age who are texting their clients, exchanging email messages with their clients, but they’re not using HIPAA compliant software. They’re using the texting technology that comes with their smartphone. Well, under the HIPAA rules, they are transmitting PHI: protected health information. You’re not allowed to do that. That’s a mistake. They should be using encrypted tex/email software, on their phones on their computers. And if that information gets disclosed inappropriately, that’s a violation of the law. And that can constitute a HIPAA breach. Good people who make mistakes. Another example: This is a case I’m involved in right now. Good clinician working with a child whose parents are divorcing, right? So, they’re going after each other, the parents, there’s a child custody dispute. I’ve been involved in hundreds of cases involving child custody disputes. They’re red flags when it comes to potential malpractice problems, licensing board problems. And so the, in this particular case, this good dedicated clinician, number one: provided clinical services to the child based on mom’s consent, but didn’t reach out to dad that still had joint legal custody. Dad filed a licensing board complaint alleging that the clinician had a duty to contact him for his consent as well. The clinician also wrote a letter to the court in support of the mother in this child custody dispute, the father said you didn’t interview me, that’s not an objective letter, you violated my rights. And he filed a licensing board complaint. This is a good clinician who I think made a mistake. Here’s another example: Under the heading of mistakes, there’s a Rabbi Kushner who wrote a book years ago, one of my favorites, entitled “When Bad Things Happen to Good People.” That’s this category. And so many clinicians, as we all know, sometimes bring in, to use the jargon, what we call collaterals: the family member, the adult son, the child, the cousins, sort of close friend who’s a source of support, and they include them in the clinical session. In my experience, some clinicians do not explain to the collateral: what their rights are, how confidentiality is handled, that the coalition might actually put in his or her or their notes information shared by the collateral, about the collateral’s life, that information might get released if records are subpoenaed. And I’m involved in a case right now, where the collateral filed the licensing board complaint, say, You didn’t explain any of this to me, I didn’t realize what I told you would be going into the record and you wouldn’t be protecting that very sensitive information about my life. Well, here’s the licensing board complaint. In the digital age, we now have clinicians whose client moves 120 miles away, but wants to continue receiving services remotely, and the clinician doesn’t check in with the state where the client has moved to find out what the licensure rules are. And the clinician who is licensed in Colorado, let’s say, now has a client who lives in Kansas just moved there for a job. And the clinician is not licensed in Kansas, but is now practicing in Kansas, even though the clinician is sitting in Colorado. Because if that electronic signal travels across state lines there’s a licensure issue in nearly every state. I now encounter clinicians who don’t have social media policies, they don’t have a document that explains to clients. And by the way, I recognize some of you may use the word patient, but I’m just going to use the word client for simplicity, a social media policy that I think is now absolutely required that explains to clients how clinicians conduct themselves online, I can’t be your Facebook friend, if you need to reach me in a crisis, please don’t text me, I can’t promise that I’ll see it in a timely fashion. If if you’re going to get services from me remotely, please don’t use public Wi Fi because it’s not secure. These are all examples of mistakes. That’s category one. Category two: clinicians who are named in lawsuits or in licensing board complaints because they had to make decisions. These are not mistakes, in the narrow sense. They had to make tough decisions about hmm, I work in a rural area, there are complex boundary issues when a clinician lives and works in a small community. How do I manage them so that I’m not violating any ethical standards regarding dual relationships? All of us have been asked by clients personal questions: How old are you? Where do you live? Do you have any kids? Are you in recovery? Whatever, we make decisions about self disclosure, and I’m not someone who says never self disclose. And I have a book on boundaries, where I talk about what I call judicious self disclosure. So, those are decisions that have ethics implications. All of us have had to make ethical decisions about whether to be vague in our case notes, clinical notes; whether it be detailed given who might have access to those notes down the road, if they are subpoenaed or there’s a court order, or you’re working with a minor client, a 15 year old with the parents want to see your notes, which they typically have a right to see. We’ve got to make decisions that can have not only clinical implications, but also ethical implications. More and more, I’m encountering clinicians who have to make decisions that have ethics implications about what I would call it some unorthodox/non-traditional interventions. For example, walk and talk therapy. The client who doesn’t like sitting in an office, let’s take a walk on a trail in the woods. Well, you know, there are some ethical issues there around privacy, confidentiality, informed consent, and so forth. Those are decisions. I know of clinicians who are willing to meet with a client and a restaurant because a client gets all nervous if they come into an office. I’m involved in a case right now, where a clinician has been sued, and one of the allegations among many has to do with the fact and it is a fact that this clinician conducted a number of the clinical sessions in a restaurant. That’s part of the lawsuit, and I have to opine, again back to the lawyer verb, about whether it’s okay to meet with a client outside the office and what are the ethics guidelines. Another example of lawsuits licensing board complaints that result from clinicians decisions, as opposed to, again, mistakes in the narrow sense. We know that all of us have to comply with both federal and state guidelines governing confidentiality. For many of us that’s at the federal level. But if you’re a substance use disorder treatment professional, you have to comply with what’s called Title 42 Code of Federal Regulations Part Two; it is much stricter than HIPAA. And I’ve been involved in cases where clinicians had to make decisions, where the detective shows up at the door, the client is a suspect in a crime, and the clinician has to make a decision about whether to disclose anything to the detective, does it fall under HIPAA? does it fall into 42 CFR Part Two? And the answers are different depending upon those guidelines. And then, of course, there are relevant state laws. We all got training in Tarasov. Right, the decisions we make about disclosure of confidential information to protect third parties from harm. I encounter clinicians who have to make those decisions about whether to disclose confidential information outlined consent to protect a third party from harm. Those are tough decisions. And you can lose both ways. If you don’t disclose and the client does harm somebody you could be named in a lawsuit; failure to disclose, failure to prevent harm. And I’ve been in those cases. But the other side of that coin is, if you do disclose, you’ve probably just ruptured the clinical relationship, and the client may go after you for disclosing without client consent. This is really complicated. PS, I still encounter clinicians who believe Tarasov is the law of the land. It’s not. It never has been. It was a California Supreme Court decision. And every state has its own guidelines regarding duty to disclose without client consent. This stuff can make your head hurt. Some states, in their statutes require behavioral health clinicians to disclose without client consent to protect third parties, but other states and their statutes only permit clinicians to disclose that information. They don’t require them. These are tough decisions. And finally, the third category that leads to a lot of lawsuits and a lot of ethics complaints filed with licensing boards: misconduct. Here’s the good news. I’ve been doing this a long time. I would say the overwhelming majority of mental health counselors, clinical social workers, psychologists, psychiatrists, marriage and family therapists, substance use disorder specialists are fine people who care deeply about their clients. They are good, good, good people. And then like every profession, we have a small percentage of people who in my opinion, do not belong in this field. They should not be in this field. They engage in sexual relationships with clients. They write notes that are fraudulent about clinical sessions that never happened. They bill insurance companies for sessions that never happened. They are severely impaired and they are providing substandard services to their clients and harming them. They marry their clients. They exchange sext messages, s e x t, that’s a term that didn’t exist when many of us started our careers. But I I’ve had to literally review evidence of sexting. That’s the third category: misconduct. And heaven knows there are a lot of lawsuits, a lot of licensing board complaints, where there’s evidence of misconduct, impairment, unethical behavior, again, small percentage, but it accounts for a large percentage of the lawsuits and licensing.
… 23:53
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Katie Vernoy 23:55
A lot of these things make a lot of sense. And I think there are things that folks are going to be like, Oh, my gosh, I gotta go check on this and figure this out. Typically, what are you seeing? Is it we hope it’s, it’s category three that you’re seeing most of but it sounds like that’s a small percentage. And it’s more category two and category one, like a typical clinician, what should they be thinking about? Because it, it seems like, yes, we have really challenging decisions to make. There are times when we’re human and we make mistakes. For our listeners, what should they really be paying attention to here? Because this is a lot of information to kind of, to chew on for right now?
Dr. Frederic Reamer 24:32
Of course, of course. So I would say if you look at the pattern of lawsuits, the pattern of licensing board complaint, the majority of them and this is my own anecdotal experience, but I also know the data. Most things in life I don’t know anything about, right. But I know the data on this because I this is what I do. And the majority of the complaints, lawsuits; allege problems with boundaries, dual relationships, mismanagement of confidential information, failure to get proper informed consent, negligent intervention. A lot of these are suicide related cases, unfortunately. They are the folks who were using very unorthodox interventions. But I want to say, I recognize that some listeners blood pressure may be going up, their anxiety may be going up. They may be thinking, Gee, thanks a lot for having this guy on. But here’s the good news. And honestly, folks, this is really good news. The overwhelming majority of behavioral health practitioners will retire without ever having been sued, without ever having been named in a licensing board complaint. That’s what the data show. Most of us are not going to bump into this stuff. So I think we can relax. On the other hand, I spend a good deal of my time in these cases. So, this stuff does happen. The probability is low, relatively speaking, thank goodness. But if you get named in one of these things, it is a miserable experience for everybody. I’ve never seen a clinician call me or tell me. Hey, Dr. Reamer, Hey, I got named to the licensing board complaint, great news, I got named in a lawsuit, great news. Everybody is miserable. And if given a choice, I think that they’d rather have teeth extracted without anesthesia, than to have to go through what are these cases.
Curt Widhalm 26:31
What is it that you think that therapists can do to best put in place to defend themselves even before the complaints even come up? What are what are the things that you see complaints about? A therapist that has all of their ducks in a row, what is it that they’ve done, where you’re like, you know, this is a bad situation. But this therapist did nothing wrong.
Dr. Frederic Reamer 26:55
No, here’s my checklist. And I truly believe I know this may sound idealistic. But this, to me is practical advice, based on a lot of lived experience. Number one, that five syllable word that most of us don’t like: documentation. I recognize that if you ask a cross section of clinicians to rank order, from most enjoyable to least enjoyable aspects of the work they do in this field, documentation would be at the bottom of the list or close to it. It’s tedious, it can be onerous, time consuming, uncompensated, I get it. But folks, I am not exaggerating when I say the overwhelming majority of lawsuits and licensing board complaints are determined by the outcome. The outcomes are determined by the quality of the documentation. I am not exaggerating. So the mistakes I often see: Oh, yeah, I I consulted Dr. So and So with regard to the suicide risk, and whether we should take additional steps, seek a higher level of care. And I’m looking through the clinical notes. It’s not documented. The conversation with the psychiatrists isn’t in the notes. Somebody says to me, oh, yeah, I consulted the language in my code of ethics, whether it’s the psychology code, the counseling code, by the way, counselors, you’ve got three codes. Don’t ask me why there are three codes for counselors, different states rely on different codes for the Social Work Code. It happens that I chaired the task force approach to Social Work Code of Ethics. People tell me Oh, yeah, I looked at standard 1.09. C with regard to whether I should disclose confidential information without my clients consent. I say good. Is that reflected in your notes? Oops, forgot to document that. That’s a problem, what we call omission, failure to document. But then I see other problems. In the digital age with electronic records, copying and pasting. Say, you know, you’ve got session one, session two, session three, there’s somewhat redundant. And to save time clinicians sometimes copy and paste a note. Right? It’s a disaster often, because they don’t often proofread them. There’s a fact in that original note that’s no longer relevant three weeks later, but they didn’t catch it. And here’s what happens, folks. If you’re named in a licensing board complaint, you’re named in a lawsuit. The attorney on the other side of the case is going to read every single note, every single text message, every single email, they’re going to get them in most cases. And if they see stuff that’s problematic, and they want to use it against you. When you go into a courtroom, you go into a licensing board hearing room, there is likely to be an a large LED screen on the wall. We’re not using blackboards anymore, flip charts. They’re gone. We’re talking large LED screens. The lawyers have very fancy software, they will take your notes, your online posts, your text messages, and they will project them on the screen, they will change the font. So it’s really tall, they’ll highlight certain words and a lot of yellow, they’ll take red electronic arrows to highlight a term. And they will grill you with regard to the quality of the documentation. Gee, was this note copied and pasted. Because it looks like there’s an error in there. They’ll grill you on that. If there’s a wrong date, they’ll grill you in that. If there are sentences that don’t make any sense, they’ll grill you on that. If the grammar is lousy, they’ll point it out to try to impeach your testimony and attack your credibility. So documentation, documentation, documentation is so key to proofread that stuff. I get it, it’s a pain. That’s number one. Number two: getting consultation. If it’s a complex case, one of the biggest mistakes I see is clinicians don’t consult with colleagues or supervisors if they work in an agency setting. They’re not in peer consultation groups. And then sometimes they do consult with colleagues or supervisors. But they don’t write a note that says they did that. When lawyers go to law school, here’s what every single one of them that I’ve met learns, quote, if it’s not written, it did not happen, unquote. If it’s not written, it did not happen. Now, I know that’s not true. And you know, that’s not true. But a lawyer will push that argument. Well, you say you consulted with your colleague, Jane Smith, where’s the note, where’s the note? You didn’t document it. We don’t believe it happened. Consulting relevant federal and state laws, consulting relevant code of ethics standards, consulting relevant literature, I realize it may sound incredibly tedious. But when I walk into a courtroom, I absolutely expect the lawyers to bring in copies of books, journal articles, that they’re going to introduce as formal exhibits, to backup their points. If I’m on the witness stand, they will likely bring in stuff that I’ve written, either to challenge it, if they’re opposing counsel, or to put it on the record as evidence of what we call standard of care. Those are some of the most practical tips I can offer.
Katie Vernoy 32:34
How about malpractice insurance? Do you have recommendations on how much we should have?
Dr. Frederic Reamer 32:39
Well, not just how much. It’s not just how much, it’s what type. So I’ll be brief. First of all, one of the biggest mistakes I see and I see it a lot: If behavioral health practitioners work in a hospital, let’s say it’s a psych hospital or a substance use disorder treatment program, or a family service agency, whatever they have an employer. So many clinicians assume that their employer’s malpractice coverage will offer them protection in the event of a lawsuit or licensing board complaint. Bottom line, I would not assume that, and I would not work for five minutes for an organization without my own malpractice coverage. Why? I’ve been in cases, the most recent in Illinois, it’s public information I testified in a case involving the death of a toddler allegedly murdered by his mother, who was the client. And the agency got sued, alleging negligence with regard to the treatment of the mother who allegedly killed her child. It’s a horrible case that a jury came back with a $45 million verdict $45 million verdict? Well, if you rely on your employer’s coverage, and the cap on the employers coverage is 2 million or 3 million, do the arithmetic, you got a problem. And the plaintiffs, the party bringing the suit may go after you as an individual. You want your own policy, just in case. Just yesterday, I consulted with a practitioner whose employer refused to allow the agency’s lawyer to defend the clinician in a lawsuit alleging, it’s a case involving child protective services. I’ll just say that. And the clinician is freaked out because the lawyer for the agency said I can’t represent you. You need your own lawyer. Why? Because now there’s a conflict of interest. The agency believes the clinician didn’t comply with agency policy. So, the lawyers job is to defend the agency, not the clinician. You want your own coverage. Reason number three: In the event, you’re named in a licensing board complaint. In my experience, employers generally will not pay the legal bill for defense of a licensing board complaint. Their insurance is for lawsuits, not for licensing board complaints and they typically say No. A few exceptions, but not many. You’re on your own. It’s sort of you want an attorney to represent you to handle this licensing board complaint. You know, they charge $250 an hour, $300, $350 an hour, you can end up with a $20,000-$30,000 legal bill, I’m not exaggerating. If you don’t have your own coverage, you’re on your own, you are on your own, please, please, please get your own coverage. And while you’re at it, depending upon where you work, I now recommend that you add what’s called Cyber Liability coverage: C Y B not P SY . C Y B E R cyber liability coverage. So many of us are now using technology to deliver services, store information in electronic health and medical records. We have flash drives, or texting, email. There are so many ways that we can have problems based on our ESI electronically stored information. And one way to protect yourself is to have a supplement to your policy called Cyber Liability coverage. It’s not terribly expensive, but I’ll make two other real quick points about insurance. For those of you who are close to retirement, thinking about retirement, I hope not as a result of this discussion. Right, please get what’s called tail coverage T A I L, like a tail on an animal. A lot of people don’t even think to get it. If you retire tomorrow, but you get sued six months from now. And you’re you’re retired, you want to make sure you’re covered. And that’s called tail coverage. You either have to pay like one more year’s premium, some policies included automatically that consider tail coverage. And the other decision you need to make is whether to get what’s called a claims made policy or an occurrence policy. This is all insurance language; claims made policy, which tends to be cheaper means that you’re covered, so long as you have that policy in effect when the lawsuit is filed. Right. And so you have to have the policy in effect when it’s filed, even though you may have terminated services two years ago. That’s called a claims made policy. And occurrence policy, which is typically more expensive, simply means that you had coverage at the time the alleged incident occurred two years ago. So you know, it’s it’s a complicated phenomenon. Those are the headlines. Oh, one other thing I need to say about paying for a lawyer. Another huge mistake I see repeatedly: the clinician is named in a licensing board complaint. Again small percentage, but it happens. We’ve all had disgruntled clients who get angry with us for one thing or another. And you get the complaint, you have to respond in 21 business days, that’s pretty typical. And you’re angry, you’re defiant. I didn’t do what’s alleged, I didn’t violate my clients right. You start writing a response, which you have to file or you send it in, and the board reviews it. And then they decide, You know what, we’re not going to dismiss this. We need to go further with this. And then I get a phone call. Hi, Dr. Reamer, my name is I’ve been named in a licensing board complaint and I didn’t want to run this by you. Here’s what I said in my response. And I want you want to know what you think I should do at this point? And I say, did you have a lawyer help you write that response? And too often the answer is no. And then I have a sick feeling. Because in my experience, as smart as we are, as skilled as we are, as behavioral health professionals, we are not trained as lawyers. A skilled lawyer, by the way, a lawyer who specializes in this kind of law, they don’t do construction law, they it’ll do zoning law, they don’t do criminal defense law, they don’t do labor law, they don’t do car accident law. They do this. Their careers are focused on defending, not suing behavioral health professionals who in defending them in licensing board cases. That’s the kind of attorney I want. And there are a lot of them out there. The afternoon. So look for them. They know what to say in response, how to word it, and what not to say. And they often have relationships with the board, with the attorney for the board, which can be extraordinarily helpfu when you’re trying to negotiate a good outcome. Responding on your own can be a disaster. Please don’t be insulted by that. I’ve just seen it too many times. And you want to be able to pay that lawyer which is why again, I reiterate, you have to have your own malpractice coverage, which includes board defense coverage.
Curt Widhalm 40:02
once our listeners use off of their anxiety reduction techniques if…
Dr. Frederic Reamer 40:11
Breathing, self soothing…
Curt Widhalm 40:14
Anytime that I give a lot ethics workshop I tell people that if you’re leaving here a little bit anxious then it’s probably a sign that I did a good presentation and that you’re gonna go and make some good corrections to your paperwork, your informed consent, that kind of stuff. But if people are interested in finding you, reaching out to you, where can they find you?
Dr. Frederic Reamer 40:35
I don’t have my own you know, independent website: School of Social Work Rhode Island College that’s in Providence, Rhode Island, you just you know, put my name and it’ll come up. Email address F. So my first name is Frederic F as in Frederic, my last name, R E A M E R@ric.edu. Ric is Rhode Island College, Ric dot edu.
Curt Widhalm 41:00
And we will include links to those in our show notes over at mtsgpodcast.com. And follow us on our social media where we’ll continue these conversations, join our Facebook group, the Modern Therapists Group, and until next time, I’m Curt Widhalm. With Katie Vernoy and Dr. Frederic Reamer.
… 41:19
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