Читать книгу Ethics and Law for School Psychologists - Susan Jacob - Страница 100

Professional malpractice suits are civil lawsuits (torts) filed against individual practitioners under state statutory and common law. Professional malpractice occurs when, in the context of a psychologist–client relationship, a client suffers harm and it is determined that the harm was caused by departure from acceptable professional standards of care (Bennett et al., 2006). The likelihood of a psychologist being sued for malpractice is small. Over a 20 year period, under 2 percent of psychologists had a malpractice suit filed against them (Novotney, 2016). As noted, whether an individual school-based practitioner is immune from liability under state law during performance of their job duties varies from state to state. Psychologists in private practice, however, can be held liable for malpractice in all states.

When a professional–client relationship exists and the psychologist is acting in a professional capacity, they are expected to provide “due care,” or a level of care that is “standard” in the profession. To succeed in a malpractice claim, the plaintiff must prove four facts: (1) a professional relationship was formed between the psychologist and plaintiff so that the psychologist owed a legal duty of care to the plaintiff; (2) the duty of care was breached; that is, a standard of care exists and the practitioner breached that standard; (3) the client suffered harm or injury; and (4) the practitioner’s breach of duty to practice within the standard of care was the proximate cause of the client’s injury; that is, the injury was a reasonably foreseeable consequence of the breach (Bennett et al., 2006).

How does the court determine the standard of care? In most cases, the courts look to the profession itself to identify the customary standard of care used by others in the same field. Expert testimony may be used to establish the customary standard of care. In addition, codes of ethics may be presented as evidence of the parameters of accepted practice. Sometimes the client’s condition is a key factor in determining the expected standard of care (e.g., acceptable and reasonable actions in handling a suicidal adolescent). If the psychologist is not qualified to work with a particular type of problem situation, they are obligated to refer the client to someone with appropriate training (Bennett et al., 2006).

According to Woody (1988), the key words related to defining the appropriate standard of care are ordinary, reasonable, and prudent. Ordinary pertains to what is accepted or customary practice. Reasonable relates to the appropriate and adequate use of professional knowledge and judgment. Prudent means the exercise of caution, not in the sense of being traditional or conservative, but rather maintaining adequate safeguards.