Fern said:
I'm also thinking the initial contact would be coming through the Dept. of Mental Health, advising you of the complaint and giving you so many days to reply. It would probably go before their board and a decision would be made whether you handled it in a proper manner or if they needed to move forward to a lawsuit.
Administrative review like that, i.e. having the Dept of Mental Health look at the case, is a different thing from lawsuits. Normally, what a department like that can do when it looks into a complaint and finds that a healthcare professional made a serious error is revoke that professional's license. (Or suspend him/her for X amount of time, and/or require him/her to undergo extra training, etc.). Normally--and there may be exceptions here and there, but there would have to be statutes on the books in the state for this--anyway, normally the department, agency, or whatever it's called that reviews the actions of healthcare professionals operates separately from the courts. Its purpose is to weed out bad healthcare professionals (by revoking their licenses to practice) and improve borderline ones (by ordering them into mandatory training), stuff like that.
But the purpose of lawsuits is completely different: lawsuits exist to compensate the person who was harmed (or, where the person died, her family) for what they lost. That's why there are rules about who can sue: the person has to have "standing" (i.e. the right to sue), and they only have it if they were harmed themselves or if the person harmed was some specific relation to them--spouse, child, etc. (the exact relatives covered vary from state to state). The Dept. of Mental Health normally doesn't have standing to do this, because it isn't harmed directly. So
the Dept of Mental Health CAN'T decide whether to move forward to a lawsuit: all they can do is decide whether to suspend or revoke the professional's license, whether to order them into training, or what other conditions (if any) to place on the professional's ability to practice. The only person who can decide whether to move ahead with a lawsuit is the person suing--that is, the person harmed or (if the person who was harmed died, or is a minor unable to bring lawsuits by themselves), their relative.
So, once someone with standing sues over this kind of thing, what they're asking for is generally money: the value of the thing lost (e.g. the money that the harmed person had to spend on hospital or therapy bills; the income they lost; the person's life, if the harmed person died; or, for example, if a medical error makes your husband depressed and unable to have sex for a year, the value of a year's worth of *ahem* "companionship"...). And there may also be punitive damages, whose purpose is to punish the person being sued, but that's rare in medical error cases because the error would have to be pretty egregious. Those are the kinds of remedies that courts can impose when health care professionals are sued. (Also, note:
the Dept of Mental Health is not going to be who forwards the complaint to the counselor, unless there are some really weird laws in that state. The Dept of Mental Health may notify a counselor that someone has made a complaint about them, and that the Dept. is looking into it to decide whether to suspend the person's license or whatever; but the kind of "complaint" we're talking about here, the complaint in a lawsuit, is a different thing: it's the document a plaintiff files with the court to start a lawsuit.)
These two things--someone suing, and the Dept. of Mental Health looking into the case--can happen simultaneously, or separately: sometimes a healthcare error that's enough to trigger a lawsuit isn't enough to trigger an investigation that could make the professional lose their license; and sometimes the things that could make a professional lose their license are not things that anyone's going to sue over. But in any event, the main point here is that they are two separate procedures with two separate purposes. And it sounds like the story being written in this case is more to do with the lawsuit.
That being said, you can't sue a counselor for failing to realize someone was going to kill themselves unless the counselor had a legal duty to do something (e.g., a duty to try to have the person committed to a mental hospital) and failed to do it. (Or a legal duty to NOT do something, but they DID it.) This is generally true of lawsuits: if "A" did not
have a legal duty to do something, then "B" cannot sue "A" for failing to do it. Doctors have a legal duty to care for their patients with the competence of an average doctor. (I'm wildly simplifying here, but that's the general idea.) Ditto for nurses and other healthcare professionals. They don't have a duty to be heroes; they have a duty to use generally accepted standards of care, i.e., average competence.
So this counselor would have had to either violate an actual law/rule (e.g. if there's a law or maybe a medical-ethics rule requiring counselors to try and have a patient committed if the patient is suicidal, and the counselor didn't do so), or else depart in some other way from generally accepted standards of mental health care. (Obviously, violating a law or legal rule would be departing from generally accepted standards of care.) That is, that's what she would've had to do in order to lose the lawsuit, and in order for the lawsuit to proceed to trial, i.e., move beyond the preliminary stages, it would have to look like she really
might have done that. Obviously, to just get sued in the first place you don't necessarily have to have done anything wrong--the suit could be totally frivolous or baseless, in which case the counselor would probably be able to get it dismissed before it moved to another stage.
But the reason I'm pointing this out is that unless the writer is trying to make this look like a totally frivolous lawsuit, there needs to be
something that the counselor was supposed to do that she didn't do. Not something vague like "failing to recognize that the patient was suicidal"--that's impossible to prove: how can we know whether the counselor recognized that or not? And how can we know whether, given what the patient did and said, the counselor
should have known she was suicidal--do we expect counselors to read their patients' minds?! It needs to be something concrete, something you can prove in court, like not doing what counselors are supposed to do when their patient is clearly suicidal (not trying to have the person committed, or whatever the law requires in that state).
