Social Worker Liability

Last month we talked about Social Work as a profession and academic discipline that improves the quality of life and well-being of individuals, groups, and communities by direct practice, policy development, organizing communities and outreach, and crisis intervention. Social Workers undergo demanding educational requirements, formal and robust training, and adherence to governmental regulatory requirements, HIPAA, and state licensing requirements.

All of these complexities have raised liabilities for Social Workers. Likewise, liability based lawsuits have become exponentially more frequent in our litigious society with more professions and specific occupations being exposed to tort liability. For example, in 1970, there were almost no lawsuits against Social Workers.¹

Now there are tens of thousands of lawsuits and claims filed every year in the U.S. according to Western Litigation, the leading liability insurance claims adjudication company in the U.S. While good practice management and learning good practice techniques through participation in professional workshops and education are the best defense against liability lawsuits. Social Workers need good liability insurance coverage that they can depend on nevertheless.

Liability exposure for Social Workers has been raised by the courts as well, starting with expanding the legal concept of “duty”. “Duty” is the first of the five major elements discussed in this article for a successful malpractice case against a Social Worker. The expanded “duty” requires therapists, agencies, and other professionals to be held to a broader legal obligation to take affirmative steps to protect others.²

Today, liability lawsuits come in many forms. Western Litigation determined that the most frequent classes of lawsuits against Social Workers are:

• Incorrect Treatment, (which according to Western Litigation, comprises over 20% of the lawsuits across both the Agency and Sole Practitioner segments), and
• Sexual Misconduct. Other frequent lawsuits arise from State Board Complaints, Patient Suicide, and Reporting. Common clinical practice issues and insurance claims that arise frequently include Trial Testimony, Subpoenas, Depositions, Medical Records Requests, Information Breach, and HIPAA Lost Data Issues.

Potential liability is now a fact of Social Work practice regardless of venue. A Social Worker cannot assume that her/his employer will assume all liability and that the employer’s liability insurance will cover the Social Worker. That is why the Social Worker must have a Professional Liability policy, a Cyber Liability policy, and in many cases, a General Liability policy.

Since “Malpractice” is the driver within professional liability, what is it? Malpractice is a deviation by omission or commission (inaction or action) from standards of professional care which the results in an injury.³

For example, an action may be fraudulent billing or embezzlement, and an inaction may be failure to make a needed referral or inadvertent disclosure of confidential information either by the Social Worker or by a third party working for the Social Worker, such as a mover relocating patient files or a data server company that loses the patient records information or breaches the confidentiality of the information. Intent does not matter when defining malpractice.

Malpractice lawsuit plaintiffs file a lawsuit based on their claims that they sustained injuries from wrongful actions or inactions and seek compensation for damages. Whether or not a lawsuit has merit, there will be a legal defense expense to the Social Worker as the defendant, simply to answer the complaint, and that is where a good liability insurance policy or set of policies is critical.

The five major requisite elements that the plaintiff’s attorney must demonstrate in court in order to advance a successful malpractice case are:

• (i) Legal duty,
• (ii) Obligation to adhere to a standard of care,
• (iii) Breach of duty,
• (iv) Damage, and
• (v) Proximate cause.

The Legal duty is best written in contract form that defines the treatment scope and the relationship of the parties. This protects the Social Worker and establishes accepted deliverables. A professional relationship must be created and maintained at all times.

The obligation to adhere to a standard of care is an average standard, not the best standard. An average Social Worker meets the requirement in a reasonableness test. It is a slippery concept because standards vary across venues and jurisdictions and change with court rulings, regulations, policy statements, research, and guidelines for the profession. Referring to the NASW Code of Ethics, NASW practice standards, attending NASW Risk Management courses, and the knowing the laws in your jurisdiction are very important.

Breach of duty can be a commission or omission. Something was either done wrong or not done that resulted in a deviation from the standard of practice that an average Social Worker provides. This is where expert witness testimony and depositions surface when a standard of care is being determined. The Social Worker may not be a named defendant in a lawsuit, but nevertheless may be compelled to appear in Court to provide expert witness testimony, or required to provide a deposition.

Damages must be measurable and proven in Court. They can include lost wages, wrongful death, medical costs, and a host of other damages. A plaintiff can sue the Social Worker simply because the plaintiff disliked treatment or disliked the Social Worker for any reason. Filing a lawsuit does not guarantee a judgment, but it does guarantee that the Social Worker has to pay defense counsel fees to answer the complaint and file a motion to dismiss. A common occurrence is that the plaintiff simply writes a complaint letter to the State Licensing Board and it automatically causes a Licensing Board inquiry. Does your professional liability insurance policy cover this?

Proximate cause is the breach of the duty that was the direct cause of the measurable harm and subsequent damages. This is a very important issue in mental health liability claims because courts allow the patient to sue the Social Worker once the patient discovers harm has occurred, which could be many years after treatment by the Social Worker. This is why a Social Worker should buy Extended Reporting Period (ERP) coverage if terminating a claims-made professional liability policy, or have an occurrence form of policy.

In conclusion, there are a lot of liability risks and moving parts that can hurt a Social Worker financially and professionally, regardless of their status as an employee or as a sole practitioner. The best way to stay ahead of the “damages and risk curve” is to regularly attend NASW Risk Management Seminars, follow the NASW Code of Ethics, and the NASW practice standards, stay abreast of local venue laws, policies, and rules that your NASW Chapter Executive Director can help you with, and buy a good set of liability insurance policies to protect yourself.

Preferra Insurance Company offers a comprehensive set of low premium high coverage liability insurance policy plans that are insured by the Preferra Insurance Company RRG that include Professional Liability, Cyber Liability, and General Liability.

¹D. Besharov, The Vulnerable Social Worker: Liability for Deserving Children and Families; NASW, 1985, pp. 1-21
²W.P. Prosser and W.L. Keeton, Prosser & Keeton on Torts (5th ed., West Publishing Co. 1984, pp. 1032-1069
³E.T. Negley, Innovations in Clinical Practice, 1985

Published May 2015