in Mental Health and Deafness
Duty of Reasonable Care
The attorney for the deaf client alleging harm caused by the therapist has the burden of proving that, through an explicit or implicit exchange of expectations, there was a therapist–client relationship. Then the attorney for the client must show that the therapist had a “duty of reasonable care” in working with the client. The parameters of that “duty of reasonable care” are found in the therapist’s code of ethics.
I emphasized the principles underlying the code of ethics earlier because many of the negligence/malpractice suits brought against therapists do not hinge on a specific rule or standard in the ethical code. If the alleged harm to the client involved a specific rule or standard of the code of ethics, a lawsuit would have been far less likely. Specific Tarasoff “duty to warn” language was not part of therapist ethical codes until after the Tarasoff lawsuit. My point is that it is more likely than not that a negligence/malpractice lawsuit against a therapist alleged to have harmed a deaf client will be decided on the principles level.
Breach of the Duty of Reasonable Care
The attorney for the deaf client alleging harm caused by the therapist has the burden of showing that the therapist “breached” his or her duty of reasonable care in working with the client. That is most effectively done when the client’s attorney shows that the therapist violated an ethical code rule or principle (e.g., dual relationship, competency, the negligent communication error regarding informed consent, working without clinical supervision).
The attorney for the deaf client alleging harm caused by the therapist will generally try to prove this breach of duty of reasonable care to the judge or jury by using an “expert witness,” to make the complicated ethical code or ethical principle violation clear to the judge or jury. The expert witness for the deaf client could be a professor who teaches ethics from a respected training program in mental health counseling, clinical social work, or clinical psychology with deaf people. Juries are often very responsive to professors who have everyday experience explaining complicated concepts in the classroom. Along the same lines, the deaf client alleging harm by the therapist may have a strategic credibility advantage using an experienced deaf expert witness.
Who qualifies as an expert witness? In short, an expert witness can be anyone the judge allows to be an expert witness. But most often, the judge will consider the academic background and work experience of the proffered expert, as well as his or her familiarity with the scholarly literature on ethics and therapy with deaf people.
Keep in mind that expert witnesses can be offered on both sides of the ethical question. You may recall that the criminal trial of Ronald Reagan’s would-be assassin, John Hinckley, involved several expert witnesses on each side of the question of Hinckley’s sanity and criminal culpability. You may wonder if one or more expert witnesses on both sides of an ethical/malpractice/civil case or a sanity/criminal case are confusing for the jury. The courts have great confidence in the jury’s ability to sort out credible and noncredible expert witness testimony.