Therapist Malpractice Law

Therapist malpractice refers to a very specific form of personal injury that falls under the umbrella of medical malpractice. In essence, therapist malpractice is any departure from the accepted standards of therapy that results in a patient of the therapist suffering some form of personal injury.

Medical malpractice law is the set of civil laws that allow an injured patient, commonly referred to as a “plaintiff,” to bring a legal claim against a negligent medical professional, such as a therapist. Medical malpractice laws also allow plaintiffs to recover damages for the harms that were caused by the medical professional’s substandard conduct.

Although the exact laws concerning what constitutes medical malpractice vary by state, in general medical malpractice is a negligent act that occurs when a medical professional, such as a therapist and/or a healthcare organization, falls below their standard duty of care that is required of them when they are managing, diagnosing, and/or treating their patients.

In malpractice cases, when the plaintiff is successful in suing a therapist for malpractice the legal remedies granted by the judge or jury generally consist of a monetary damages award, which is paid by the defendant to the victim. This monetary damage award is a specific monetary amount that is intended to reimburse the plaintiff for any losses that they suffered as a result of the therapist malpractice occurring.

It is important to note that the term therapists may refer to a variety of different medical professionals. Examples of therapists that can be found liable for therapist malpractice may include:

• Sports and physical therapists;
• Psychological therapists;
• Work-related therapists;
• School therapists; and
• Emotional support therapists.

In addition to the above list, any medical professional that holds themselves out to be a medical professional that provides specialized care may be found liable for therapist malpractice.

What Are Some Common Types of Therapist Malpractice?

As mentioned above, because of the wide variety of medical professionals that fall under the umbrella of therapy, there are numerous different types of therapist malpractice. Because of the personal relationship that many therapists have with their patients, their conduct must be particularly cautious.

In fact, a seemingly minor error in judgment may often result in a therapist being liable for malpractice. Examples of common types of therapists errors may include:

• Making inappropriate or excessive self-disclosure;
• Using techniques without proper training;
• Deliberately misdiagnosing patients;
• Having a sexual relationship with a current or former patient;
• Failing to take adequate notes;
• Failing to take a proper history; and/or
• Failing to consult with peers or to take the advice of peers.

Many therapist malpractice cases often involve a combination of the above types of conduct. For example, the therapist may even use a deliberate misdiagnosis in order to get close to the patient and initiate sexual conduct with them. In this case, criminal or punitive damages may also be sought in addition to enlisting the aid of a therapist malpractice attorney to initiate legal action against the therapist.

Other violations can occur, such as a violation of the therapist’s duty of confidentiality.

How Can I Prove I am a Victim of Therapist Malpractice?

Once again, the exact elements necessary for an individual to recover damages on a claim for therapist malpractice will differ by state. However, in general, in order for a plaintiff to receive damages associated with a malpractice claim, the injured patient must prove all of the elements necessary for a medical malpractice case.

Generally speaking, all of the following elements must be proved by a plaintiff in order for them to recover for medical malpractice:

• The person or party responsible for the medical malpractice owed the patient a duty of care that they failed to meet.
  • In the case of a therapist, a therapist generally owes a duty of care to any patient that they are treating.
  • Then, the plaintiff must be able to show that an ordinary reasonable therapist would have acted with more care than your therapist, and, thus, breached their duty of care owed to the plaintiff.
    • It is important to note that an expert witness is often needed in order to establish the standard of care in the malpractice case and provide evidence that the therapist breached their duty;
• The plaintiff must then show that the therapist’s malpractice caused an actual injury, resulting in actual damages to the patient in some way.
  • Importantly, even if a therapist acted in a way that fell below the standard of care, if the plaintiff is unable to prove that they were injured by their conduct, they cannot sue for malpractice;
• The damages that were caused by the medical malpractice must be able to be calculated into a specific monetary amount
  • Generally, a plaintiff must specify an exact amount of damages they are seeking or risk their case being dismissed for failing to state a claim.
  • Examples of damages may include:
    • Medical bills, including both past and present;
    • Additional therapy costs;
    • Lost wages from missing work;
    • Physical or mental pain and suffering; and/or
    • Punitive damages if the doctor knew or should have known that an injury would result from their actions, or lack of action.
• Finally, the injury alleged by the plaintiff did not exist prior to the medical malpractice occurring.

What Are Some Defenses to Therapist Malpractice?

In any civil law cases there are legal defenses which are available to and may be raised by an individual or party that is accused of inflicting an injury on another individual. A valid legal defense serves to lessen the responsibility of a defendant for their damages or have the case against them thrown out entirely.

In the case of therapist malpractice, if a therapist has been accused of harming a patient, then their best legal defense will be to prove that the plaintiff has met all of the elements necessary to prove their malpractice claim. In other words, they will seek to show that there was not an actual injury or they did not fall below their standard of care.

Examples of other defenses to therapist malpractice may include:

• For any claim or charges related to sexual misconduct or sexual assault, a common legal defense is to prove there was never any physical contact or sexual act;
• Consent is often a legal defense utilized in malpractice claims wherein the therapist demonstrates that the patient requested or consented to a specified form of treatment and were informed of the risks; and
• Often a malpractice defendant will provide evidence that they are fully trained, educated, and qualified for the practice and that they utilized an appropriate and accepted standard of treating the patient.

For example, if a patient has consented to the therapist touching them for the purposes of massage therapy, then the patient will likely not be able to sue that massage therapist for malpractice in performing their job.

Should I Consult a Lawyer for Help with a Therapist Malpractice Lawsuit?

If you experienced an injury as a result of therapist malpractice and wish to pursue a civil lawsuit against them, it is in your best interests to consult with an experienced liability lawyer as soon as possible.

An experienced personal injury lawyer will be aware of your state’s specific laws on therapist malpractice and any damages caps that may be present in your state’s laws. Finally, an attorney will also be able to represent you in court, as needed.