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American Annals of the Deaf

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Ethics in Mental Health and Deafness

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Causation

If the attorney for the deaf client alleging harm caused by the therapist can show a duty of reasonable care, and a breach of that duty, he or she must still show that the therapist’s act or omission was the “cause” of the harm to the deaf client. The central question in this evidence category is “Was it foreseeable that the therapist’s act (e.g., taking on a deaf client he/she cannot communicate with effectively) or failure to act (e.g., duty to warn a potential victim of your client’s violence) would cause the harm or injury to the client (and/or a third party)?” “But for” the therapist’s negligence, would the client have been harmed?

The insightful reader is already compiling a list of risk management rules for avoiding ethics-related and other kinds of negligence/malpractice suits against therapists. For example, you should have a detailed, thoughtful understanding of your code of ethics and its principles. Second, always have clinical supervision. Third, always consider the foreseeability that your acts or omissions might cause harm to your client or a third party. Use client process notes to document these rules.

A determination of causation by the jury is very tricky. There is no formula beyond the causation question given above. The circumstances of every case differ enormously, as I will illustrate in the case studies. How will the jury interpret the word foreseeability?

Let me illustrate the foreseeability problem in two ways.

Imagine 10 people standing near the tracks waiting for a train. Person 1 playfully pushes person 2, who falls on person 3, who trips on person 4, et cetera, until person 10 falls in front of a moving train. Was it foreseeable that person 1’s playful push would have killed or injured person 10? What if all 10 people were children? What if there were 50 people rather than 10? What if it was raining? What if? What if? Even if person 1 technically acknowledges that his playful action set the tragedy in motion, he could say, “It wasn’t foreseeable to me that my playful act would hurt or kill person 10.” What will the jury make of this regarding causation?

Still considering the topic of jury interpretation of causation and foreseeability, what if a skilled hearing therapist with a strong commitment to the ADA, very basic sign skills, and several deaf distant cousins, takes on a deaf client who uses only home signs? Because of significant communication problems all around, the game but struggling hearing therapist misses the extent of the client’s drug abuse and depression. The client attempts suicide between the second and third appointments. What would you make of this situation on the foreseeability issue? Was it foreseeable that the therapist would cause a potential suicide in this case because he violated his own ethical rules regarding his competence to work with deaf people and his obligation to refer the deaf client to a competent therapist?

Would it make any difference to you as a jury member if this was the only therapist with any sign skills within five hundred miles? A thousand miles? Does it make any difference to you that the client used homesigns rather than American Sign Language? Would it make any difference to you as a juror if the therapist agreed to take on the deaf client because a judge offered the client a therapy option as an alternative to jail? Would it have made a difference if the hearing therapist retained a qualified interpreter? An unqualified interpreter? What if the hearing therapist relied on the deaf client’s hearing mother to interpret? Given the history of drug abuse and depression, might the client have attempted suicide had he never met the hearing therapists? I could go on and on offering details or nuances that might influence a jury about causation and foreseeability.


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