Almost every state in the United States licenses and regulates the practice of psychology, marriage and family therapy, social work, and counseling. There are hundreds of thousands of practitioners in these fields of non-medical treatment of emotional disorders. As the professions grow, there are increasing complaints against these practitioners in the form of malpractice lawsuits as well as complaints to the various licensing boards.
It is important for an expert to understand what malpractice means and how it is defined in a forensic setting. To understand the definition of malpractice, one must have a thorough knowledge of the statute that creates and defines the license to practice a particular profession. Attached to that statute is a series of regulations that define the statute and are adopted and promulgated by the state licensing board.
There are relevant codes of ethics, which are adopted and promulgated by professional associations. These associations are the American Psychological Association, the National Association of Social Workers, the American Association for Marriage and Family Therapy as well as the Licensed Professional Counselors. The relevant code is that which was in effect at the time of the alleged acts of misconduct. Some of these professional associations also publish specialty standards, which are aspirational goals, held out to the members of the professional association.
In reviewing cases of malpractice and/or complaints to a licensing board about a licensee, it is imperative that the expert understand the particular statute, regulations and professional codes, which govern the licensee. There is an additional standard called the community standard, which is ordinarily that standard by which the professional group practices in this particular community. There needs to be a particular understanding of negligence and gross negligence, and how those concepts apply to standard of care and clinical practice. The expert must be aware of the fact that poor clinical practice does not constitute negligence or gross negligence. We have in these professions excellent therapists, mediocre therapists, and those that are not so good. A clear delineation has to be made in regard to committing negligence or gross negligence in the practice of psychotherapy in order to determine if there has been a breach in the duty to care that has caused harm.
The expert, when retained by counsel, will need to review the complaint, relevant depositions, sometimes interview the plaintiff or defendant and then discuss his or her opinion regarding the case. At issue, is whether the standard of care (as defined earlier) has been breached or not. If there is a breech and harm has occurred, the expert needs to explain where and how it happened. This may occur in written form or through deposition and testimony at trial. The expert may be further called upon to render an opinion regarding the extent of damage, apportionment of the damage that is directly related to the breach of duty, and treatment necessary to ameliorate the damage to the defendant.