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Sign Language Studies

American Annals of the Deaf

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Ethics in Mental Health and Deafness

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There are four elements that must be proven for the client to win a negligence/malpractice lawsuit against a therapist. If only three of the four elements are proven, the lawsuit is over. It is thrown out. We must clarify two terms before going on to the elements. Negligence and malpractice suits require evidence of the same four prima facie elements, but these suits differ in two ways (Bednar, Bednar, Lambert, & Waite, 1991).

First, anyone can be sued for negligence. You risk a negligence suit if you drive a car carelessly and harm a pedestrian. But you can only be sued for malpractice if you are a professional. Markers for a profession include licensure, certification, and a code of ethics. The second thing to remember about the distinction between negligence and malpractice is the decision question to the jury. The questions are different in important ways.

In a negligence lawsuit (e.g., careless driver hits child), the question to the jury is “Was this act or omission [failure to act] the behavior of a reasonable person under the circumstances?” “Reasonable person” means what the jury thinks it means. “Under the circumstances,” is an essential part of the question to the jury because the expectations of the “reasonable person” differ according to the circumstances. Was the road icy? Was there fog? Was the child a suicidal, intoxicated teenager who threw himself in front of the car?

In a malpractice lawsuit we move to a “reasonable professional” standard that is framed by that professional’s code of ethics. The jury question in a malpractice lawsuit is “Did this practitioner’s act or omission fall within the boundaries of acceptable practice in this community?”

A careful comparison of the two jury questions again should (a) illustrate the centrality of your code of ethics in a malpractice lawsuit; and (b) show you why it can be easier to lose a negligence lawsuit than it is to lose a malpractice lawsuit. What are “the boundaries of acceptable practice” in your profession? There is much more leeway for an adverse jury decision against the defendant with the negligence jury question than a malpractice jury question. Unless the deaf plaintiff can show a clear ethical violation (“boundaries of acceptable practice”), the malpractice jury question is much narrower, and therefore frequently more difficult to prove because of the “in this community” language.

There is an important link between the malpractice jury question and professional liability insurance. Therapist liability insurance covers only unintentional client harm caused by the therapist within the boundaries of acceptable practice as framed by the therapist’s ethical code, relevant law, and published agency policies.

Does the “in this community” part of the malpractice jury question help or hurt the deaf client allegedly harmed by the therapist if all the community therapists are incompetent with deaf clients?

Two final clarifications before moving on to the prima facie elements in negligence and malpractice suits. The burden of proof in every element is on the person who initiates the lawsuit, the plaintiff, the person who contends he or she was harmed by the defendant psychotherapist. In most jurisdictions, it is also the plaintiff’s strategic decision whether to have his or her case decided by a judge or a jury. In cases involving complex legal and factual issues, some plaintiffs and their attorneys will prefer that a judge decide the case. On the other hand, some plaintiffs/clients and their attorneys will feel that a jury will be more understanding and/or sympathetic in deciding their case.

The plaintiff has the burden of showing all four of the following prima facie elements in a negligence or malpractice case.


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