Psychotherapy Malpractice-New Risks for Psychotherapists

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A new California Appellate case increases the risk of psychotherapy malpractice.

The psychotherapist/patient privilege requires that what is said in psychotherapy remains confidential. However there are several limited exceptions.

For example, when a patient threatens the life of an identified victim, the therapist is to make an attempt to warn the victim. However, a recent California case( Ewing v. Goldstein, Case#B163112) has expanded the duty of clinicians to inform an identified victim who may be in harm’s way from their patient. The Court ruled that if a therapist learns about the danger from a close relative, there is a duty to break confidentiality .

The prior law held that the duty is triggered only if it was the patient who made the threat. Unless the California State Supreme Court over overturns the Ewing decision, a therapist may be in a large Catch 22 situation.

Imagine if a relative gives a phony report to the therapist. On the surface, a statement from a relative might seem legitimate. If the therapist acts on it, are they still immune from a malpractice lawsuit?

In this instance, the therapist might be liable for breach of confidentiality. At times, it may be difficult if not impossible to evaluate the credibility of third party statements. What if the therapist believes the communication from the relatives or even a friend is less than reliable and does not make warn the intended victim? What is more troublesome is that the notion of relying on non-patient communication could be expanded even further.

Donald A. Eisner, Ph.D. J.D. Author, “Death of Psychotherapy: From Freud to Alien Abductions” ( Greenwood,2000)

(818) 788-6512 http://www.eisnerpsychlaw.com

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Donald A. Eisner

818 788-6512
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