View Full Version : Negligence lawsuits

11-04-2006, 11:47 PM
Am looking for information related to the process of a lawsuit against a counselor who did not recognize the immediacy of suicide of her client. Who would contact her first about this, how would they contact her, what would be said. Then were would it go from here.
Again, this is a mental health negligence case. Not hospital negligence.
Thanks for any help!

11-05-2006, 12:59 AM
Am looking for information related to the process of a lawsuit against a counselor who did not recognize the immediacy of suicide of her client. Who would contact her first about this, how would they contact her, what would be said. Then were would it go from here.
Again, this is a mental health negigence case

Probably she would be served with a complaint (a copy of the legal document filed with the court to initiate the lawsuit). Rules for serving complaints vary from state to state; maybe a bailiff would personally serve her, maybe it could be mailed to her (certified/registered or whatever). You could call your local courthouse to ask--say you're a pro se (pronounced "pro say") plaintiff wanting to know how to serve a complaint on a defendant.

The complaint has to lay out what the basis for the lawsuit is (the who, what, where, when, why). The defendant then has X amount of time (again, this varies by state) in which to respond, so it's at this point that she would get a lawyer to take a look at the complaint, hear her side of the story, and either reply move to dismiss.

Statutes of limitations also vary by state, so to be on the safe side, unless you want to actually go find out what the statute of limitations on medical negligence is, have the lawsuit brought less than a year after the negligent act happened. As far as I know, statutes of limitations are never less than a year. (By the way, "hospital negligence" isn't a separate tort: negligent health care is negligent health care,whether it's a doctor, a hospital, or what. But I would check into your state laws, if I were you, to get a better idea of what a "counselor" is--is it a licensed profession? what are the rules on them?--because that may affect what duties she had towards the patient, and thus, what she could be sued for.)

11-05-2006, 04:07 AM
Ideagirl, you sure have a lot of good ones. Thanks for all of this. It's not going to be a long drawn court case (at least not in the book) so you gave me perfect info. And I will contact our local courthouse.

Again, thanks.

11-05-2006, 07:08 PM
Ideagirl, you sure have a lot of good ones. Thanks for all of this. It's not going to be a long drawn court case (at least not in the book) so you gave me perfect info. And I will contact our local courthouse. Again, thanks.

You're welcome. FYI, the counselor's lawyer is generally going to be trying to do one of two things: ideally, move for summary judgment; otherwise, write an answer denying some or all of the complaint. Summary judgment is ideal because it gets the case dismissed so the defendant can just go on with her life. Writing an answer brief, in contrast, is the next step in what can be a long, drawn-out lawsuit.

Requesting summary judgment is when you (the defendant) argue that "even if everything the plaintiff [i.e. accuser] has said is true, she has still failed to state a claim." If the court agrees, it dismisses the case. There can be any number of reasons a defendant would get summary judgment, but the basic idea is that not every bad thing actually has a law against it, so the defendant is essentially saying, "even if I did every one of these bad things that she's accusing me of, that's still not anything that I can be sued for, so this lawsuit has to be dismissed." If a counselor failed to realize that the patient was truly suicidal, for example, that doesn't necessarily mean she committed a tort against the patient. Each state defines its tort laws pretty thoroughly, and if the thing the counselor did doesn't fit into any of the categories, then the counselor can't be sued for it. (I'm simplifying here, but that's the general idea). So her lawyer would say, in the answer, "even if the whole complaint is 100% true, it's still not a tort," and if the court agreed it would dismiss.

Answering a complaint means writing up a document with a bunch of numbered paragraphs that respond directly to the complaint--e.g. if there are 20 numbered paragraphs in the complaint, there will be 20 in the answer, each one answering the corresponding paragraph in the complaint. The paragraphs in both documents tend to be super short, like two sentences. The first few paragraphs tend to be basic facts, like the plaintiff's name is so and so and she's the executor of the deceased patient's estate and is suing in that capacity (i.e. as the executor, suing on the dead person's behalf). Then the rest lay out the stuff she's suing about.

11-05-2006, 08:17 PM
Each state has its own State Department of Mental Health which has certain rules that must be gone by. In mine, if a person calls a counselor or mental health facility and says they are feeling suicidal, you are required to give them a hotline number where they can call right then. . .the hotline number is usually posted on the home page of the state's Dept. of Mental Health's website and any mental health facility or counselor should have that information posted where they can see it in instances like these.

I don't know what your situation is in your book. . whether the client called in or was talking to the counselor in person, but I'm thinking if it was in person, the counselor would be required to take certain steps also. You could find out for sure by calling your state Dept. of Mental Health.

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.

11-06-2006, 10:04 PM
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).

11-07-2006, 02:26 AM
You guys are great. I know some about the Board proceedings as I am a licensed counselor in the state of Ohio where this takes place but don't know the terms, procedures that well. By the way, in this situation she is not at fault. It's simply devastated parents who are trying to get their lives back. Don't worry, I'm not going to have the family and counselor kiss and make-up at the end of the book. :-)
I do appreciate the info - you are reminding me of things I need to cover such as making sure the counselor did give a hot line number, etc. The client did not say she was going to carry this out. I guess I ought to go back to a previous appt and have the counselor go thru the risk questions for suicidal thinking. You know, do you have a weapon/plan, have you moved a weapon lately...

11-07-2006, 08:11 AM
Thanks for the explanation, ideagirl. We learn something every day!

11-10-2006, 11:46 PM

11-11-2006, 12:14 AM
Having been sued and having reviewed cases for lawyers who had clients who were thinking about suing, the only thing I have to add to the very complete responses already posted is that the initial step is always a request for records. This happens before any other action transpires because no lawyer is going to move a digit without knowing that there really is a case.

So the first thing the therapist would receive is a request for records. That fact makes the process even more nerve racking for a practitioner because of the undefined nature of the threat. Could be a law suit, might not, might be a nasty one.

When I was sued, after receiving a request for records, I consequently spent an inordinate amount of time trying to second guess myself, trying to find out what was going on, and generally perseverating about the whole thing. The pressures to do something foolish--like change a record or call the plaintiff directly or talk openly about the case, continue to mount until there is some resolution of at least what form the threat will assume.

If a suit is filed, I found that regardless of what I knew to be true, the language of the legal filing was devaststing--"...did willfully neglect the obvious clinical indications that said patient was at immediate risk for suicide, and did nothing to prevent such suicide..."

Language like that can make people feel not that they might have made a mistake, but that they have murdered someone. Fortunately, none of my suits carried a burden quite that final, but ironically, it is usually those who care the most, and are often the most innocent of any sort of malpractice, who are most readily overwhelmed by guilt. The incidence of depression and suicide amongst doctors who are defendants in malpractice cases is significant. I'm guessing it would be the same for any therapist--if not more so.

The only other factor that permeates the backdrop for the entire process is the color and smell of money. For everyone except those directly affected by whatever transpired, the proceedings in a malpractice case are business--strictly business. It's rare that one of the players honestly extends themselves in an embrace of the horrific emotions involved.

That may be one reason why Colorado's malpractice rates are lower than much of the country. Its largest malpractice carrier was originally formed by docs, many of whom had been through the process. The insurance company pounds into the heads of all the professionals it insures not to forget what a malpractice suit is really all about--people feeling powerless, uncared for, hopeless and eventually angry.

I guess I rattled on a bit long--hope some of it helped.

11-13-2006, 10:49 PM
i was a mental health consumer that had a friend die when a local mental health facility was negligent in protecting the residents from a dangerous construction job on the property of the facility. The man climbed the scaffolding and jumped to his death. The scaffolding was not blocked or in any way kept from entrance. There was nothing further on the negligence case which was pursued by his father in upper state Maine. His father tried and nbothing continued. I was a resident at the time and knew the dangerous situation and had even asked the local workers if something could be done to prevent thew entrance by someone that could get hurt. The was no reply. A young man jumped to his death a day later. after that episode, There was a hired watchman on duty while the construction continued to take place. Thanks for helping me to see that there are those out there still fighting. Peace.