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Avoiding Malpractice Tips

You Never Want This … But Once You Have It, You Never Want to Lose It!

Jul 1, 2022 | Avoiding Malpractice Tips

You Never Want This … But Once You Have It, You Never Want to Lose It!

A lawsuit.

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

You can expect to be sued (named as a defendant in a lawsuit) sometime during your career. That is why you must ascertain the legal defense coverage provided by your liability insurance policies, especially your professional liability policy.

Historically reported liability incidents and claims adjudication experience indicates the two most important needs for legal defense.

One is the most frequent claim, which is the state licensing board’s legal defense. This claim is the most frequent because all complaints, including lawsuits, usually start with a licensing board complaint. Some arise from an irritated client as a customer dissatisfaction complaint. Others have more substance.

State administration processes are bureaucratic and drag on, so licensing board resolutions can require up to 15 or 18 months while your attorney’s billing meter is running up legal fees. Legal fees to resolve licensing board complaints typically cost between $1,500 to $2,500. It is well worth the annual insurance policy premium.

Lawsuit cases have a life that can last for several years. It depends on the nature of the claims, the number of insurance carriers involved, the number of defendants named in the lawsuit, and the facts and circumstances of the case.

Our experience in claims adjudication indicates that about 40% of lawsuits are frivolous, have no merit, and either “die on the vine” or are dismissed by the court. Despite being flimsy cases, a lawsuit requires a defense lawyer to file the necessary responses, motions, and motions to dismiss and advance the process with the court to get the lawsuit filed against the insured dismissed. This process requires many months, perhaps over a year, and about $10,000 to $20,000 in legal fees.

Virtually all plaintiff attorneys’ lawsuits cast a broad net to capture as many defendants as possible. Each “fish” in the net represents a chance to bring in a “deep pocket” liability insurance carrier since each defendant almost always has its insurance carrier. And each insurance carrier has its legal defense team to protect its cash reserves. The plaintiff’s strategy is to increase the probability of a payoff by naming as multiple parties in the lawsuit as many as possible.

Along with the same tactical strategy, plaintiffs always pack the lawsuit with as many claims as possible; usually, 4 to 9 specific claims. These claims typically fall under the category of negligence which is a tort, noncriminal category. In negligence, there is a stated “duty” that the defendant is responsible for, followed by a “breach” of that duty by the defendant, which was the “proximate cause” of the breach, resulting in “damages” occurring to the plaintiff.

At this point, this is where the lawsuit gets either murky or is clear as a bell. The murkiness in a lawsuit arises from accusations and claims that may or may not reconcile with the defendant’s reasonably required standard of care.

The standard of care benchmark that determines the “duty” can be imaginary or seemingly apparent and open to subjective interpretation and argument. Effective debating attorneys win cases. The burden is on the plaintiff’s attorney to prove negligence, so your client’s documentation and interaction administration processes can either be your best friend or your worst enemy.

Most of the lawsuits the NASW Risk Retention Group has encountered are frivolous and immediately dismissed. Some cases are indefensible and must be settled before trial or resolved through mediation or arbitration. These involve cases where the defendant is clearly culpable and immediately meets the elements of negligence. Some lawsuits, after initial litigation determines there is no substance, are dismissed. have no substance and are dismissed after initial litigation.

Once named in a lawsuit, count on the plaintiff’s attorney executing a subpoena for all of your records, including paper, digital, telephonic, texts, emails, and all other evidence of interactions to support the claims against you. There will eventually be depositions of witnesses, expert opinions obtained, and the defendant is put under a microscope to find fault to support the negligence charge.

Client case documentation is critical. Make sure you document your client interactions thoroughly, state everything factually with no bias, and ensure that your supervisors promptly and regularly review the case notes and documentation. Anything to prove the defendant is guilty is helpful to support the lawsuit.

Remember that everything you write and record will be repeated in court for all to see and hear. So, suppose you miss elements during therapy or have poor quality documentation – this is argued as a breach of duty or failure to perform up to the required standards of your profession, evidence of negligence.

Also, investigation of how the supervisors managed the defendant’s interaction with the client (plaintiff) is crucial because that can potentially drag in the employer or agency as a defendant in the lawsuit through vicarious liability. Once again, this is a compelling legal tactic to capture another “fish” in the net who has another insurance carrier with money to chase.

So you may ask: “What do I do?” Two essential action items come to mind immediately.

Read your liability insurance policy to determine the following:
  • What are the per occurrence limit and the aggregate limit? An example would be a $1 million limit per occurrence and a $3 million aggregate limit for the entire policy year.
  • What are the definitions? Policy forms with a Definitions section are much easier to follow. Some insurance carriers bury the definitions in the policy contract text, which is more difficult to understand, and you need to take notes to remember them.
  • What perils are excluded and covered? Carriers know the frequency and severity of each risk. So, to save paying out claims dollars in legal defense and damages, the carriers intentionally carve out coverage for a particular peril(s), limit the coverage with a very low sublimit, or charge a high endorsement premium to add that specific peril coverage to the policy. Except for the NASW Risk Retention Group, all carriers either exclude coverage for this peril or charge a $1,000 endorsement premium, and many have deductibles. The most critical and costly example in professional liability policies is divorce litigation coverage, a frequent claim. In other words, you have no legal defense coverage if you are sued while working with spouses undergoing a divorce.
  • What are the sub-limits? All carriers have sub-limits, but they vary in amount and vary by peril. The most frequent perils, such as licensing board perils, have low sub-limits, and in many cases, insurance carriers limit the number of licensing board perils per policy year. Only the NASW Risk Retention Group has no sub-limits for fire liability in its general liability insurance policy, which includes $1,000,000 coverage for fire and no limit on the frequency of fire claim incidents. All other insurance carriers have fire sub-limits under $350,000, and only one fire claim is allowed per policy year.
  • What are the deductibles? They vary by insurance carrier and also can vary by peril. Only the NASW Risk Retention Group has no deductibles.
Perfect your client therapy documentation and processes.

From the moment of client intake to client termination, you are responsible in all phases. That also means client interaction outside therapy sessions, including administration interaction in the office waiting room, appointment scheduling, and processes and procedures in general. Some lawsuits NASW Risk Retention Group has defended:

  • Because a pet dog bites a client’s child in the office,
  • A phone call confirming an appointment and;
  • An event when the front office administrative assistant did not immediately tell the social worker of a disturbed client visited the office on the wrong day and left the office to commit suicide.

In conclusion, lawsuits always occur, and you will likely be a lawsuit defendant during your career. Lawsuits are like bad weather. Storms are with us all the time. That means maintaining your practice with standards that align with the industry and remembering that maintaining excellent client documentation is your best friend. Inadequate documentation and failure to manage cases responsively is your worst enemy.

(source: parade.com)

Avoiding Malpractice Tips

Avoiding Malpractice Tips

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COVID-19 Notice

NASW Risk Retention Group (NASW RRG) shares information based on our helpline inquiries, corresponding claims history, and an understanding of a varying nationwide professional state regulatory environment.

Due to COVID-19, many states have implemented or waived specific regulations; it is the individual professional's responsibility to research, implement, and monitor those regulations; and apply our risk management content as a consideration in your practice environment. Do not interpret this risk management material as any means to alter professional training, standards, nor any ethics information provided by your professional association.

Please understand, the NASW RRG makes no representations or warranties other than those stated to our current policyholders in the insurance policy contract. Please contact us if you have further questions.