Can I Sue My Child’s Therapist for Malpractice?

Adults tend to think of childhood as a carefree, happy time. But the truth is that children have always struggled (sometimes silently) with sadness, anxiety, bullying, self-image, loneliness and other issues. In recent years, the COVID-19 pandemic, social media, and other factors have converged to cause an epidemic of mental health issues for young people.

A natural step for concerned parents is to seek out a therapist for their child. One positive development over the last couple of decades is that there is much less stigma associated with seeking mental health care. Between the greater societal acceptance of therapy, and the exploding need for services for children, many more kids are in therapy than even a decade ago.

That’s good news when counseling helps restore children to better mental health and functioning. But sometimes, therapists do more harm than good to the vulnerable children in their care. Under some circumstances, that harm may rise to the level of medical malpractice.

Children and Therapist Malpractice

We are sometimes asked by parents if they can sue their child’s therapist for malpractice. The answer, technically, is yes, but the real answer is a little more complicated than that. As a parent, you have the legal right to pursue a lawsuit, including a malpractice lawsuit, on behalf of your child. In fact, if your child has been seriously harmed, you might have a responsibility to sue on their behalf. That doesn’t mean these cases are easy to win—or even that what you are concerned about constitutes malpractice.

Let’s talk a little bit about what child therapist malpractice isn’t, and then about what it is, from a legal standpoint. An outcome other than what a parent wanted or imagined is not necessarily malpractice on the part of a child’s therapist. For example, let’s say that you took your ten year old to a therapist because he had become sad and withdrawn and was struggling at school. After several months of counseling appointments, he is less withdrawn, but seems angrier and talks back to you, which he never did before.

There could be a lot of reasons for those changes, including the process of your child learning how to express negative emotions that he “stuffed down” before. You’d like your child to be more agreeable, respectful, and obedient, but the fact that he isn’t doesn’t mean that the therapist committed malpractice.

On the other hand, if the therapist did something a reasonable therapist would not have done, and your child was harmed as a result, you may have a case for malpractice.

Proving Child Therapist Malpractice

Like any form of medical malpractice, there are certain elements that must be proven to make a case for therapist malpractice. They are:

• The existence of a duty of care between one party and another. This is perhaps the easiest element to prove, since all therapists have a duty of care toward their clients. The “standard of care” requires a psychiatrist, psychologist, or other mental health professional to treat a client or patient as a reasonable professional would under similar circumstances.
• A breach of the duty of care. In other words, the therapist does something in the course of treatment that a reasonable professional would not have done (or fails to do something that a reasonable professional would have done).
• The therapist’s breach of the duty of care causes an injury to the client.
• The client suffers damages as a result of the injury.

What might a case for child therapist malpractice look like in real life? Let’s say that a parent takes their sixteen year old daughter, Kelsey, to therapy because she has exhibited increasing symptoms of depression. When the therapist takes Kelsey on as a client, the duty of care is created.

In therapy, Kelsey describes classic symptoms of depression and exhibits textbook signs of depression. She also admits that she has been increasingly thinking about suicide, to the point where she has developed a plan to overdose when her parents go away the next weekend, and begun to give her treasured possessions away to friends.

At this point, a reasonable therapist would have involved Kelsey’s parents in creating and implementing a safety plan for her and might have referred her for a hospital-based evaluation and possible admission for inpatient mental health treatment. Instead, Kelsey’s therapist helped her obtain antidepressants with a known side effect of increasing suicidal thoughts in young people and other medication that can be lethal if taken in large doses. This is a breach of the duty of care; a reasonable therapist would not have done this.

Kelsey’s parents go away on their planned weekend trip, unaware that Kelsey is suicidal. While they are gone, she overdoses and dies by suicide. Her death is the injury, and it is likely that that injury would not have happened had the therapist not breached their duty. The damages include, among other things, the parents’ loss of their daughter’s companionship and their pain and suffering at her death.

While the hypothetical case described above might seem clear cut, the element of causation is often a sticking point in these cases. If Kelsey was already having suicidal thoughts, the defense might argue, the therapist’s actions did not cause her suicide. It’s important to work with an experienced medical malpractice attorney and expert witnesses who can help “connect the dots” and establish causation for a jury.

What to Do if Your Child’s Therapist Commits Malpractice

Child therapist malpractice can take many forms, ranging from negligent treatment to deliberate sexual abuse of a vulnerable child. As a parent, it may not always be clear to you whether your child’s therapist has committed malpractice. However, if malpractice did occur, you have only a limited amount of time in which to bring a claim.

You should discuss your concerns with an experienced medical malpractice attorney. An attorney can help you determine whether you have a claim worth pursuing and what your next steps should be. To learn more about therapist malpractice, contact The Fraser Law Firm P.C. to schedule a consultation.