Risk Management: Investigation Notice for Psychologists Not Cause for Panic

By Eric C. Marine
May 25, 2017 - Last updated: May 23, 2017

Investigation notice not cause for panicEvery state regulates the practice of psychology. The simplest regulation is that state licensing is required to call oneself a psychologist. A person may have a Ph.D. or a Psy.D., but unless the person has a license or works for an educational institution, he or she is not a psychologist.

With a state license comes board oversight to police unprofessional practices. The purpose of a licensing board is to assure that the public is not harmed.

A psychologist is considerably more likely to receive a board complaint than be sued. The reason is that in order to bring a suit there has to be a demonstrable cause of action, proof of damage to the person who wants to sue and a lawyer who is willing to take the case. It is much easier to file a complaint with the state licensing board.

Most complaints arise out of an outcome that makes the complainant feel wronged and filing a complaint is a means to validate that feeling. That does not make that person right, only angry.

The receipt of a complaint can cause anxiety in the psychologist for many reasons. Significant is the fact that most practitioners take the complaint personally and can’t see the motivation of the complainant, only that they intended to provide quality care. In reality most complaints are dismissed at the investigatory stage and there is no official record that they were even filed.

State boards deal with complaints in three phases. The opening phase is the investigatory stage. This is usually the first notice the practitioner has of a problem. A written response and a copy of the chart being sent to the board is required.

If the board thinks it is warranted, the next phase will be a formal inquiry. This can entail testimony and experts to support the complaint about the care provided. Depending on the state, this may take place at a board hearing or in front of an administrative law judge.   Some states employ another step after the administrative law judge with a formal hearing in front of the board. This process can be time consuming and expensive. This doesn’t even include an appeal to the state judicial system.

As almost all malpractice insurance policies provide some coverage for state board complaints, the first thing a policyholder should do is contact the insurance carrier. Insurers are a source of advice and, if needed, a referral to an attorney who is familiar with the complaint process. It is not advisable to try to face the board alone. Even if the complaint is frivolous, the board must take it seriously.

Many psychologists have tried self-representation and found themselves with some sort of sanction that now has to be explained. Additionally, a lot of boards invite the psychologist to sign a consent agreement to put the matter to rest. This may seem innocuous and a quick and easy means to end the matter, but it means that the practitioner has agreed that he or she has done something wrong.

With this agreement, the complainant can now sue and be fairly assured of winning. So it is very important that the practitioner understand his or her malpractice insurance coverage and feel free to contact the carrier if notified a complaint has been filed.

As with most aspects of claims against psychologists, a lot of board complaints arise out of the fractioning of a family unit – such as in a divorce – and the subsequent intervention of a psychologist. It is not unusual for a “custody evaluator” to be named in a complaint. This is the only way to bring an action against a court-appointed individual. Immunity from litigation will protect against a lawsuit but it won’t stop a board from investigating.

Most states have passed laws that allow regulatory agencies access to patient charts. There is even an exception in HIPPA that allows this. That means the board will be looking at the notes that document a course of treatment. They will be making decisions about the psychologist’s career based upon that documentation. This is another example of where the “less is more” theory of note taking breaks down.

The usual risk management strategies apply. As always, your notes are your main defense. Failure to have them just means you will have another problem. In fact, notes are the only way to survive a board complaint.

State boards are consumer protection organizations. They are there to protect the public from allegedly unqualified practitioners. It is important to recognize that a proper defense comes from a clear and documented clinical process.

So as practicing psychologists, protect yourselves by documenting your treatment of patients. If you receive notice of a complaint, don’t panic. Contact your insurance carrier and follow the advice you will be given.

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Eric C. Marine is vice president of the American Professional Agency Inc. He is responsible for claims avoidance and risk management advice to clients. He has been managing and handling insurance claims for over 30 years and for almost 20 years has specialized in professional liability claims with a concentration in mental health malpractice. He also provides seminars on malpractice to state and national gatherings of psychiatrists, psychologists, social workers, counselors and marriage and family therapists. His email address is: emarine@americanprofessional.com.

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