Can a Psychologist Be Sued for Malpractice?

If you believe your psychologist or licensed therapist has caused you harm, either negligently or intentionally, you're probably wondering about your legal rights. In this article, we'll discuss:

• the difference between negligent and intentional acts that can lead to psychologist/therapist liability, and
• unique issues involved in a negligence-based malpractice lawsuit against a psychologist or therapist.

Negligent Versus Intentional Acts

The field of psychology deals with mental processes and their effects on behavior. Unlike psychiatrists, psychologists and therapists are not required to have a medical degree, and do not prescribe medication. However, the nature of psychological treatment can render patients especially vulnerable to harm.

As discussed below, when a psychologist or therapist harms a patient through negligence, most states require that any resulting lawsuit follow medical malpractice rules and procedures—just like a malpractice lawsuit against a psychiatrist.

However, when harm caused by a psychologist or therapist is intentional, the medical malpractice rules typically do not apply—instead, intentional tort legal principles come into play.

The most common intentional torts that give rise to lawsuits against psychologists include:

• sexual assault
• sexual battery
• breach of fiduciary duty (i.e. breach of trust)
• fraud, and
• intentional Infliction of Emotional Distress (IIED).

Negligence cases against psychologists (commonly referred to as professional negligence or professional malpractice) involve the same factors as all other negligence cases:

• The psychologist owed a duty of care to the patient
• The psychologist "breached" (i.e. failed to meet the standards of) the duty, and
• The breach directly caused or played a crucial role in the patient's actual harm or injury.

Negligence Cases Against Psychologists Typically Follow Medical Malpractice Rules

If a psychologist or therapist is the type of care provider who is covered by the medical malpractice laws in your state, medical malpractice procedural/filing rules must be followed, or the court will likely dismiss your negligence/malpractice case.

Typically if the psychologist or therapist is licensed to practice psychotherapy, the state's medical malpractice laws will apply, and that means any special procedural rules dedicated to medical malpractice lawsuits must be followed. These vary from state to state, but here are a few things to keep in mind.

First, medical malpractice lawsuits generally have a short statute of limitations. For example, you may be required to sue your psychologist within two years of the negligent act, or the court will throw your case out. Same states have longer statutes of limitations, and the fact that the malpractice was impossible to discover for some time may or may not extend the amount of time you have in which to sue.

Second, most states have special procedures you must follow before you can file a medical malpractice lawsuit in court, or special documentation that must be filed alongside the complaint (the document that starts the case). That could include giving notice to the psychologist/therapist, submitting the proposed case to a review panel and/or filing a certificate of merit from a medical expert witness (i.e. a qualified psychologist) testifying you have a valid case.

Finally, just as in medical malpractice cases against medical doctors, the duty owed by the psychologist to the patient is referred to as the professional standard of care. And except in limited circumstances, an expert medical witness is required to explain to the jury just what the psychologist's standard of care was in a particular case.

Other Legal Actions

You may also consider pressing criminal charges and/or filing a complaint with your former psychologist's licensing board. Professional negligence is not usually sufficient to justify a criminal case, but sexual abuse and some types of fraud can be. If you file a complaint with the licensing board, a case will be opened that may require testimony and evidence, like a mini-trial, and could result in an abusive or negligent psychologist's license being revoked. Keep in mind, however, that a criminal case could put your malpractice or intentional tort case "on pause" until the criminal case is completed.

If you're thinking about taking legal action over a psychologist or therapist's harmful behavior, your best first step might be discussing your situation (and your options) with a lawyer. Learn more about finding the right lawyer for you and your case.