Avoiding Malpractice Tips

Sexual Misconduct

Oct 14, 2021 | Avoiding Malpractice Tips

Sexual Misconduct

The social work profession is indeed a noble one founded on service, integrity, and clinical expertise. At times, it can be a stressful and hazardous occupation. The nation is grateful for what you do, AND SO ARE WE! Thank you!

What do the following scenarios have in common?

Case A:
A male practitioner sent sexually-oriented communications to a mentally and emotionally disturbed female adult client through voice mail, verbally directly by telephone, email, texts, letters, and cards by mail.

A blatant case of a clinical setting boundary violation and sexual misconduct with no physical interaction, this indefensible sexual misconduct claim is valid regardless of the lack of physical, sexual interaction. The defendant’s legal team negotiated a confidential settlement.

Lesson: Do not mix therapy and professional services with sexual activity, even if it is non-physical. That is a boundary violation within a clinical setting that morphed into a non-physical sexual misconduct claim.

Case B:
A male therapist treated a family comprised of a wife, husband, and three children. He had a physical, sexual relationship with the wife that was of mutual consent.

This indefensible sexual misconduct claim was particularly damaging because five boundary violations occurred, one of which was a physical, sexual misconduct series of incidents. Legal defense costs and indemnity settlement costs were exceptionally high because all three children were minors. The state required settlement money to be set aside for treatment until each child reached majority age.

Lesson: Use your common sense in clinical settings. Do not have sexual affairs with clients. Minors present long-term indemnity costs in lawsuits.

Case C:
The psychologist assistant witnesses sexual misconduct by the psychologist, kissing and groping a client in the office, and fails to report. It is the duty of the assistant and practitioner, regardless of employment status as full-time, part-time, or contractor, to immediately notify witnessed sexual misconduct.

The assistant was named a defendant in the lawsuit filed by the female client. The defendant’s legal team negotiated a confidential settlement.

Lesson: If you see something, report it. Otherwise, you are culpable and possibly sued as well. Had the assistant who witnessed the incident reported it, she would have performed her duty satisfactorily, and the court would have dismissed any lawsuit filed against her. Train your employees and contractors accordingly.

Case D:
The male social worker blatantly insulted a female client with individual language bordering on a verbal assault and sexual judgment opinions and related innuendo based on the female client’s significant weight problem. No physical activity occurred. However, the client had sufficient grounds to file a lawsuit against the social worker for sexual misconduct and negligence.

Lesson: Keep your personal feelings to yourself, do not voice personal opinions that are out of the scope of treatment, and do not make value judgments or share personal thoughts with the client. Such actions cross the professional boundary limitations in the clinical setting and the scope of professional services in the clinical setting. The defense for this lawsuit is under a negligence and sexual misconduct claim.

Case E:
The therapist hires female client A to house sit while the therapist goes on vacation. The therapist employs former male client B (no professional services rendered for over a year) to drive the therapist to the airport. Client B delivers the therapist to the airport, returns the therapist’s vehicle to the therapist’s house, and rapes Client A.

A lawsuit and criminal charges were filed. Client B is in prison, and the defendant’s legal team negotiated a confidential lawsuit settlement.

Lesson: This was an obvious clinical setting boundary violation on two counts. Never hire or interact personally with a client. That is a dual relationship, a second role, and is a definite boundary violation in a clinical setting. Also, choose your venues carefully when interacting with a client. It is bad to involve former clients in business or personal relationships no matter how much time passes. States may have statutes in place that define prospective interaction between therapists and clients following the termination of therapy and a time defined by which a therapist cannot engage with a former client in a non-clinical setting.

Case F:
The social worker with an exemplary record treating public school students at a rural public school accepted the school’s invitation to treat a mentally disabled 13-year-old girl during the summer.

The girl’s father liked the therapy treatment history the social worker provided and agreed to the arrangement. Since the public school facility was closed for the summer, all parties agreed that the social worker would treat the social worker’s home office and general outings.

The boyfriend of the social worker’s daughter, residing at the social worker’s house with the social worker’s daughter, had private interaction with the client at the social worker’s home and on the outings, which resulted in physical, sexual assault, and related incidents. The boyfriend has been in prison for 15 years. The client’s father filed an indefensible lawsuit settled for a high amount because the defense costs and the jury award would be extremely high.

Lesson: The therapist, in this case, was not directly involved in any sexual misconduct but indirectly allowed a third party to commit it. The therapist allowed the boundary violations to occur because of her choice of venues and carelessness in preserving a clinical setting to minimize risk exposure. Home office treatment is a common venue among practitioners, but make sure fire-walls are in force by paying attention to distance and physical buffers. Also, exclude non-practitioners who have no reason to be present in the clinical setting from participating in any treatment therapies.

Case G:
A behavioral therapist who owns a small agency with one other therapist, hired a contractor to conduct individual sessions with a client who was a minor.

The agency conducted a background check on the contractor, which was satisfactory. The contractor completed interviews and ongoing performance reviews with the agency, had a good reputation with the families he served, completed state-mandated training, and had satisfactory academic transcripts. The contractor had no criminal history. In other words, the contractor was competent and acceptable to provide therapy as approved by the state. In the fifth month of therapy in the backyard of the minor’s home, the contractor attempted oral sex on the minor’s genitals which the minor rejected and left.

However, a week later, the minor and the contractor willingly took turns rubbing each other’s genitals and mutually performing oral sex at a local public park. The minor reported the activity to his mother. The minor’s mother filed a lawsuit against the agency. The lawsuit’s foundation was a vicarious liability and a litany of negligence claims, including hiring, supervision, retention, training, and failure to intervene after the fact.

The contractor pled guilty to criminal charges of sexual assault by a psychotherapist engaged in sexual contact with an individual being treated /counseled and child molestation and is serving a 15-year prison sentence.

Regarding legal defense, that particular state’s law is relatively employer-friendly in finding sexual misconduct to be outside the course and scope of employment such that it insulates the employer from the employee’s or contractor’s criminal activities. The legal defense by the agency was based on the theory of respondent superior because the incidents were not done to further the agency’s interest and not within the scope of the contractor’s employment.

Moreover, the agency cannot be held liable for negligence claims because the incidents were not foreseeable, and no evidence existed that the agency knew or should have known about the contractor’s propensities. However, the time-lapse between the two sessions in question where no treatment progress reports were issued contributed to the plaintiff’s case and could contribute to the court’s determination of negligence and vicarious liability.

Since jury decisions are unpredictable, and jury awards are high, it made sense to tender a good-faith cost of defense offer at mediation which also satisfied the mother’s preference to keep the matter private. The settlement details are confidential.

Lesson: This is an indirect sexual misconduct case where the agency and employer as primary insured did not commit sexual misconduct. Stay up to date on client reporting with specific case debriefs of your employees and contractors. Make sure that your professional liability policy covers additional insureds, including contractors. Make sure that your insurance carrier policy does not exclude sexual misconduct-related incidents from negligence legal defense coverage.

Case H:
A practitioner prepared a hot dog for a 6-year-old child client during a therapy session, the child choked on the hot dog and died. That resulted in a court-ordered paid claim was over $1,000,000, which occurred in circa 1998. The practitioner negligently assumed a role outside of the professional services therapy, breached the duty, and was the proximate cause of the damage resulting in the child’s death. There was no sexual misconduct in this case, but there was a boundary-crossing violation in a clinical setting.

Lesson: Stay within the scope of professional services in your clinical setting. Being a cook and serving meals crosses the clinical setting boundary.

The commonality of these scenarios is that they all start with a boundary violation, and it does not have to be sexual at all.

Sometimes, boundary violations fester into more serious sexual misconduct incidents. Almost always, the plaintiff’s attorney includes negligence claims in the lawsuit to boost the claim above the sexual misconduct insurance policy sublimit or to bypass a sexual misconduct exclusion in the insurance policy.

Check your professional liability insurance policy to see if your policy excludes a negligence claim arising from a sexual misconduct incident. Also, verify whether sexual misconduct is covered, the sub-limits, and if coverage includes additional insureds and contractors for this peril.

There are many definitions and interpretations of a boundary violation, which makes for a murky interpretation and requires particular attention to state laws. A professional services boundary is the limit of appropriate professional services. The therapist stepping out of that clinical role breaches the qualitative aspects of ethical treatise, cultural morality, and state law. (Guthiel TG, Simon RI; Non-sexual boundary crossings and boundary violations: the ethical dimension. The Psychiatric Clinics of North America, 2002;25:585-92). Again, there is qualitative subjectivity here which could be fuzzy.

Some more pointed definitions include: “inappropriate contact, communication/or potential interaction between a service provider and participants”; “Crossing verbal, physical, emotional, and social lines …that must maintain to ensure structure, security, and predictability…”; “…an alteration or shift in the limits of a professional relationship so that what is allowed in the relationship becomes ambiguous and may not be based on the needs of the client”. (Law Insider, lawinsider.com, October 2021). “Boundary violations refer to an unethical act or acts that are deleterious in a therapeutic relationship or harmful to the client, such as exploitation for personal gain.” (tanfonline.com, October 2021)

Boundary violations do not have to be sexual to be a boundary violation. Frequently, one or more boundary violations as a series of behaviors precede sexual misconduct. These behaviors expand into more serious consequences that fester into sexual misconduct and negligence complaints. Commonly referred to in many publications as the Slippery Slope Concept.

We have experienced non-sexual boundary violations and lawsuits ranging from the employer vicarious sexual misconduct liability case, witness to sexual misconduct at the workplace, the hot dog case, to insulting comments made to the client by the therapist. Some boundary violations result in possible indirect sexual misconduct stem from negligence. Not recognizing the potential consequences, the therapist negligently enabled a third party to commit a criminal sexual assault or allowed it to continue by not reporting after witnessing it.

Boundary violations in clinical settings are fuzzy and are defined differently in the states. State laws also distinguish employer vicarious liability differently. The contextual definition of sexual misconduct and boundary violations are subjective, pliable, and sometimes objectively crisp, depending on the clinical role, culture, and state laws. These elements are fertile ground for plaintiff lawyers when advancing a lawsuit. Check your state laws.

Thank you for all you do as first responders and as behavioral health and social work providers. It is truly a noble profession needed now more than ever. Good luck and stay healthy!

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