Your Podcast Hosts
Kathleen Mills, LPC-S,
Phillip Crum, JP
This Week's Guest Mentor
Associate in the Dallas office of Coats | Rose.
Liability Insurance Coverage For Counselors
Liability Insurance Coverage for Counselors
Phillip Crum: This is Phillip Crum, the Content Marketing Coach. You are still Kathleen Mills.
Kathleen Mills: I am.
PC: Your practice mentors. And this is episode number 30 of Your Practice Matrix.
KM: Isn’t it great? The next generation.
PC: Yes, it is. And we’re only into February, so this is good.
KM: This is good.
PC: And we’ve got the big dog in the house today.
KM: Yes, we do.
PC: What are we going to talk about?
KM: We’re going to talk about how to read your malpractice liability insurance policy that we all have to purchase. The $1 million/$3 million or the $1 million/$5 million. What does it mean?
PC: Is this going to put me to sleep or do I need to play some background, lively music to keep me awake, or-?
KM: I think some music is definitely in order. Do you have anything in mind?
PC: Actually, I might.
KM: You might?
PC: I might. John’s the only one we’ve ever had, the only guest who has his own theme song.
KM: He’s so special.
PC: Oh, he’s special all right.
John Mongogna: It makes me feel like a superhero.
KM: I think he is. We have a super hero in the studio.
PC: A superhero in the house.
KM: It’s not every day you have a podcast with a superhero. So let me introduce my guest, my superhero.
PC: I wish you would.
KM: John Mongogna is with the firm Wright Ginsberg Brusilow here in Dallas. He practices in the area of commercial litigation, including partnership disputes, intellectual property disputes, contract and real estate.
PC: He’s a lawyer?
KM: Very much.
PC: Have I said anything offensive yet?
KM: I don’t know. Just be quiet, Phillip, then nobody will get hurt.
PC: All right.
KM: But he was licensed by the state bar of Texas in 1997 and he’s been practising here in Dallas, Texas for quite some time. I think what John really likes me to read is he is also an active member in the community, in his church, and has served on the Board of Total Home Health Care, The Jimmy Mac Foundation supporting special Olympics, as well as the Grace and Mercy Foundation. He also is a member of the Dallas Bar Association and Italian Bar Association.
PC: Hence the theme song.
KM: Hence the theme song. Mr. Mongogna, how are you, sir?
JM: I am doing well. Thanks for having me.
KM: You’re very welcome.
PC: Good morning, John.
JM: Good morning.
PC: By the way, you did a fantastic job last Friday, as always. This is about the third time I’ve seen you do the public speaking thing and you always manage to keep people’s attention very well.
JM: I appreciate that. It’s very exciting to do those.
PC: I think it’s the getting sued for $1 million and more thing that really wraps their-
KM: There’s something about attorneys being in the room that everybody drops their phones and just-
PC: Straightens up.
KM: Keeps focused on what’s being said because I think it’s a rare opportunity to have a corporate attorney and a litigator in the same room talking about real cases.
PC: You don’t think it was the bright yellow t-shirt that said, “You’re next”?
KM: Well, it could in the background.
PC: You did a great job.
KM: Very good.
PC: And, Kathleen, you’ve been very busy.
KM: I have been.
PC: Yes. Last week on Thursday you had a big EAPA event. Tell me about that. How did it go?
KM: It went well. EAPA is launching their new EASC clinical training for providers who want to add the EAP product to their practice and it was well attended and the attendees were awesome. And I was just happy to sponsor that for EAPA because I really believe in the product and then the next day we had our fourth business symposium for the next generation of mental health professionals. We had quite a lot of speakers, and then yesterday I did a free webinar with Tod Ferran with Security Metrics regarding the new HIPAA layer of compliance that my profession, my next generation’s going to have to add into their –
PC: List of things to do.
KM: List of things to do to be secure
PC: List of things to do to stay out of prison.
KM: with patient information. And it’s a beast.
PC: Number one. Get HIPAA compliant.
KM: HIPAA compliant.
PC: Number two.
KM: I think we had 72 sign-ups on the free webinar, if I’m not mistaken.
KM: And then Tod’s going to fly in on May 1st and we’re going to do a HIPAA three-hour training for mental health professionals to get their blueprint ready to secure all their private health care information with their clients. I’m excited.
PC: Excellent. I have a two-point checklist for new counselors for compliance. Number one: Get compliant with HIPAA and listen to Tod. Number two: Put John Mongogna on retainer.
KM: (Laughs.) There you go!
PC: His kids will appreciate it.
KM: His kids will appreciate it very much! So I’ve been busy. So now we’re doing a podcast.
KM: John, tell us a little bit about you personally and then a little bit about what you like to do at Wright Ginsberg Brusilow before we start.
JM: Well, a little bit personally is I’m married. I have two beautiful girls – a 13 year old and a ten year old. Right now, they love playing volleyball and soccer so when you say putting me on retainer will make my kids happy, or be good for my kids, I think it’s more the clubs and their coaches that are happy. So that’s about it.
PC: Did you tell me earlier you’ve got a teenage daughter and a soon-to-be teenage daughter.
JM: Yes, that’s correct.
PC: That you mentioned before we started that they both have their first boyfriends still. They’re buried out in the backyard. Is that a part of the whole Italian heritage thing, or?
JM: That is very much so. If you were to ask my 13-year-old right now, we were in the truck last night and she said that this one gentleman who seems to like her would like to speak with me. I told her I would be happy to speak with him. I said, “Where’s he at? I’d like to see him right now.” She then backtracked and said he no longer wishes to speak with me. So I am waiting happily to have a conference with him.
PC: Will you actually be wearing your superhero costume when you do that?
JM: I will probably not wear the superhero costume, but I will be adequately equipped.
PC: I don’t think you need it.
KM: We all know what that means, don’t we?
PC: I’ll tell you what.
KM: Yes, my dad was adequately equipped when I was growing up and being a teenager, too. But, anyways, John, thank you so much for being here and one of the reasons why I wanted you to come is to basically tell our next generation: the $1 million/$3 million malpractice liability that we all are required to purchase. Many think that when they start their private practice, all I really need is a room, 10x10 square room to rent from someone for a day or two, and then I need to purchase my $1 million/$3 million liability and then I’m good.
PC: True or false?
JM: That is exactly what people think.
KM: Is there a flawed thinking with that?
JM: I think the biggest flaw in that thought process is that the individuals that are in your line of work, like many others, in particular yours though – you have a heart for counseling people, for working with people and for doing that. The thing is that that has nothing to do with business, and therein lies the issue. So you’re focus as you’re growing up and you’re getting educated and you’re ready to start your private practice, is to counsel people. It is not to worry about space. It’s not to worry about liability coverage. It’s not even to worry about your malpractice coverage. It’s not to worry about umbrella coverage. It’s not to worry about employees. It’s not to worry about the million other things that go hand-in-hand with business. I would submit that most individuals that are ready to start their practice are doing it themselves or doing it with a couple peers or colleagues. Maybe someone with a little bit more experience than them, and they don’t have the privilege of working with anybody or associating with anybody that understands how to operate a business. And so what happens is you’re instructed and mandated that you’ve got to have malpractice coverage. So you get it. Nobody instructs you that you should have rental coverage. Nobody instructs you as to what types of coverage you should get. Nobody instructs you on how to handle your employees or contractors. Nobody does all of those things, so you think this is what I’m mandated to do so that’s what I do. And that’s what ends up occurring. And that just clearly lacks the entire business side of the practice. And what happens is it’s ignored for several years. I got what I have. I’m practicing. I’m counseling people. Seemingly everything is going well until the house of cards fall because there is no true foundation for the business. You have a great counseling side of the business, but nothing else.
KM: But, John. I do good. I have a heart. I’m passionate. I love my clients just from afar.
PC: Her mother loves her. C’mon.
KM: Surely the house of cards would not fall on such goodness.
JM: That’s actually the saddest fallacy for me is I can’t tell you how many people come in and they just don’t comprehend why they’ve been sued. And as I go and I look through things and I realize that they do not have a true HIPAA policy in place. They found some form online and they thought that that was sufficient. That they do not have a corporate structure properly in place. Maybe they found an online service that supplied them a corporate structure and they thought that was all they needed. That they don’t have operating agreements. That they don’t have true agreements for their other things. I’m shocked they haven’t been sued before. They’ve skated through and have been very lucky. And I would say that there’s a very good percentage that you’ll skate through and not have to worry about these things and you’ll be a very lucky person. And maybe even the odds are slightly in your favor, but they are not near as good as you think they are.
KM: So skating through is getting, in my mind, more difficult in this day and time.
JM: It is. And that’s something recently that I’ve been preaching. The amount of lawyers has not changed in a decreasing manner. Lawyers are still growing in population in this area in Texas, but the amount of litigation cases are in fact decreasing dramatically, especially in the Dallas County area and North Texas. The result of that is you have a lot of lawyers who are not busy. If you think that the lawyers that are not busy will not look for work or find work, then you’re silly. They will find work because they have a mortgage to pay and bills to pay like everyone else.
KM: So, John, let’s segue into my malpractice liability coverage. You have the 18 page document in front of you, and I was reviewing it once again last night. And for the love of Pete, I have no idea what it’s telling me. I don’t really know what is being offered to me. Can you walk me through what you’re...
PC: What are you looking at?
KM: What are you looking at?
JM: So I’ve got your allied health care providers professional and supplemental liability insurance policy, and the first place that I would start is in your section one. It’s on page two and it actually states what is covered. It’s very clear that it says coverage. Now, in the coverage it has - and this is the perfect way to understand your malpractice insurance policy – and this should be about all you need to know. The first half of the page Under Coverage is everything that’s covered, okay? And then, on the rest of page two, the entirety of page three, the entirety of page four, and half of page five, it goes into what’s not covered. And it’s very simple if you understand that the insurance company is spending more time putting ink to paper about the things they’re not covering for you and less time putting ink to paper about the things they cover for you. So now let’s go to the specific part. Now that we understand that the policy spends a dramatic amount of time telling you what they’re not covering, let’s talk about the little bit that they do cover. And this particular policy, it actually says that it covers professional liability. And then it goes on to describe that as services performed by you as a member of a credentialing group or utilization review panel, as a case management reviewer or clinical evaluator, or as a member of a board or committee, of a hospital or professional society where similar services are performed by you. And it describes that as coverage for professional incidents. Now, you’ve got to determine what is a professional incident. So after they go through the lengthy sets of exclusions, there is a section on definitions. And what you’ll do is you’ll actually move over to the definitions section and we’ll look up what is a professional incident.
PC: Do we have any Aspirin?
KM: Not yet.
JM: A professional incident is an actual or alleged negligence, act, error or omission in the actual rendering of professional services. It goes on to describe this a little bit more, but as you can tell it’s extremely vague. What we do know is it starts with negligence. So any intentional tort – anything that you intended is certainly not going to be covered. So when a lawyer comes and sues you and says that you intended some act then that’s immediately going to be a flag for the insurance company to say, “Ah ha, we’re not covering that.” And let me assure you, the insurance company, when you do get sued, they will take this policy and they will take this suit, and if they can fit it in any possible box that says it’s not covered, they will do so.
KM: That’s a great point, John, because yesterday we did the HIPAA webinar with Security Metrics. That was one of the big points that Tod was preaching, I suppose, to the attendees is that malpractice is not going to help you if they see that you didn’t have the proper due diligence in place.
JM: That’s right.
KM: So it’s automatically not a covered thing.
JM: What you’re getting to there is where you have some gross negligence is what you’re really referring to. So when the HIPAA rules and regulations tell you that you’ve got to have certain policies in place, and then you do not have them, it could no longer really be considered negligent – it’s going to rise to the level of gross negligence and that’s not something that will be covered there because you’re actually violating the law.
PC: It sounds to me – am I being naïve? – but it sounds to me like the insurance company is not on the same side of the table I am.
JM: Well, not necessarily. I mean, there is a necessity to have some coverage, and they do offer real coverage. There are situations to where you’ve committed some negligence – you thought something was going in this direction. You gave some particular advice, but it turns out that it was wrong. And it was innocent in nature. And that can be. The problem is that’s not typically where people are going to file a suit. While they do file suit in negligence cases, time and time again in your specific circumstance with a counselor, most of what would happen that you might get sued for is either somebody that is angry and vengeful and just wants to make your life miserable, or something that you’ve done significantly wrong. It’s not going to be in actually talking with somebody, counseling them in the regular basis. It’s going to be what comes outside the norms, and those things are simply not going to be covered. So the events that typically would take place where you’re doing your position, your professional services, aren’t really the ones that get sued on.
KM: So how does the next generation of mental health professions, how do they find the holes? Or what basic kind of three-point things… how is it best to read the policy? I mean, how do you find the holes?
JM: The thing that I would start with – and this is going to sound a little rude, a little bit obnoxious – but the very first part is actually read it. I would bet most people listening to this, most counselors, have never even read their policy. Several might not even be able to find the policy. They might actually have to call their agent if they remember who their agent is to get a copy of the policy, and wouldn’t even think about it until some event arises. So the very first thing is to truly read it and to put those things into place. The insurance company is actually fairly clear in the policy. They will bold things like in yours that say “professional incident” so that later they could say, “We actually put that in bold type for you to be able to see that that’s the only thing that we’re doing.” And you can go to the definition section and really be able to look at that. I would also say pay special attention to the exclusions because the exclusions are much more specific, and the exclusions actually describe, “We’re not covering you for this. We’re not covering you for this and that and the other.” The other thing to do is have a relationship with your agent. If you go an agent and say, “I need this,” and they say, “Yes, here you go. We’ll get it for you. Here’s how much it’s going to cost,” then I would tell you don’t use that one. You want to get an agent that says, “Where are you practising? How are you practising? How many patients are you seeing? How many clients do you service? How many employees do you have? Do you have partners?” They need to understand your business to properly make sure you’re covered.
KM: Hold it. So, are you suggesting that the insurance company should or it’s a good idea for them to ask, “Tell me about you. Tell me about your business. Tell me how you’re set up,” all that?
JM: I would say not the insurance company because the insurance company is the service provider. I would say the agent that you’re talking to. There are various agents that will actually work with you to put together coverage that will help cover your holes. I’m not saying that the agent is the one to rely on for every little thing, but that’s the place to start. To have an agent who wants to understand your business so that they could know where do you need coverage. Because here’s the thing: when the counselor stops with, “I was told to get malpractice insurance and malpractice insurance,” I could tell you right now it’s not enough. I could tell you that you’re going to need an automobile insurance policy. I could tell you that if you’re renting space you’re going to need rental insurance. I could tell you that if you truly are having a business, you should probably have a commercial general liability policy. Because those things are going to cover things that this malpractice coverage does not. And I could tell you that you want to probably have some form of umbrella coverage. And so I can do that before I start listening to your business because I understand several aspects of what you do in your business. But if you get an agent who says, “You told me you wanted malpractice coverage so I got you malpractice coverage,” that’s just not the one you want to use.
KM: But, John. You’re telling me that I have to spend more money when I only thought I had to get this particular malpractice liability and I was fine. You’re telling me that I have to purchase slip and fall. I have to purchase an umbrella and I have to do the renter’s insurance. So that’s like three more things. Do you realize how expensive that is?
JM: It can be very expensive. There’s no doubt about it. But I will tell you, in a lot of cases when you have one policy with somebody, the added coverage for things is significantly less cost than if you would buy them separately or from different agents. So first of all, it’s not going to be as much as you think it is, but it’s not about, “I need all of these coverages,” okay? Certainly you have to have the ones that you’re mandated to have. The key is understanding what you actually have, okay? So if you don’t want to have automobile insurance coverage then understand you shouldn’t be driving on the roads. Take public transportation. The key is having the knowledge so that you know what you can and cannot do.
KM: So I shouldn’t be renting a space if I’m not willing to have renter’s insurance?
JM: Or the property that you have in the space should be limited, you see? So if you’re going to store your beautiful collection of artwork in your office space, you should have rental or lease insurance for that property. If you do not or you choose that you cannot financially afford that at this time, don’t keep your expensive artwork in there. And that is the crux of it: understanding what you’re covered for so you can understand how to act on a day-to-day basis.
PC: Or put another way: Welcome to the world of small business. So what you’re telling us, John, is that an insurance company is the entity that ultimately owns the policy and has to pay off or not the agency, an insurance agent or agency, is like a selling arm and that’s who you’re going to buy the policy from. Do you know if there are insurance agencies that specialize in the counseling world? Do either of you know?
JM: I don’t know the answer to that. That’s certainly something that I couldn’t figure out. But I would be surprised if there’s not.
KM: The one that specializes in the malpractice liability is what most purchase and they think it’s fine because there’s a discount or it’s cheap, but they think it’s fine. But that’s the only one and so I think this is one of the major, top malpractice liability insurance policies because it’s promoted as being affordable, it’s $1 million/3-
PC: It’s counselor-friendly.
KM: I don’t even know what the $1 million/3 means, John!
JM: The $1 million/$3 million really means $1 million per occurrence and $3 million aggregate. So it’s $1 million per person per occurrence that would be covered. So if there was a negligence act that was performed on three people, actually for the $1 million/$3 million, let’s say four people, then any one person can collect or retrieve for damages at some future date up to $1 million, but the four together would only be able to collect a total of $3 million. So that’s where it tells you your coverage.
KM: With the exclusions, how often does the $1 million/$3 million actually happen? Like, what is the circumstance that the payout is that and then the therapist goes, “Oh, I love my insurance policy.”
JM: I will tell you this: I’ve spent about 17 years working doing insurance defense. And so insurance company actually hire me to represent their insured’s on a regular basis to where I get to see how that goes. But in my case, I’m only taking care of the ones that are at high risk or egregious. There’s a suit that’s actually filed. It’s going to go all the way to trial so we handle those. So in my world, the insurance company is paying out quite a bit. What the percentages are for cases that happen before they get into litigation, I don’t know.
PC: I have a different question for each of you. John, let’s go back to the exclusions and inclusions. Is it a correct statement to say that if it’s not listed in the exclusions, it’s covered?
JM: No, actually it’s not. What’s covered is what’s covered. The exclusions are what you’re notified for. So what you’re covered for in this particular one is as we described, “Professional liability for negligence resulting from professional incidents.” You have some supplemental liability coverage that relates to bodily injury and property damage for somebody also related to professional incidents. That’s it. That’s what you’re covered for. The exclusions, because there have been incidents previously on totally unrelated matters where it’s either been tried or somebody has said, “Wait, this is a professional incident,” the exclusions just go into a more descriptive manner to say, “We’re telling you right now. This will not qualify as a professional incident.” But if it’s not listed, it doesn’t matter. The only thing that is covered is what, in yours, that section 1 coverage and that half page on page 2.
PC: Well, who gets to decide what’s covered and what’s not covered?
JM: It’s interesting. Let me tell you the process. Let’s say there’s an incident that occurs. The first thing that you would do is you would contact your agent. They would contact the insurance company and they would tell them this is what has occurred. A lot of times your first notice of an incident might be a demand notice or it might even be a filing of a lawsuit, so you would send that document along with it. The insurance company is going to immediately review that and determine whether they have coverage. They’re going to send that to an attorney to give them a coverage opinion. So the attorney is going to take the policy and they’re going to take the lawsuit. They’re going to come look at both of them and see if there’s an event that you’re accused of that would rise to, in your particular case, professional liability for negligence resulting from a professional incident as defined in the section for the definitions. The attorney will give a coverage opinion as to whether it is covered or not covered. In those cases – and that attorney is hired by the insurance company – the insurance company will then send you a letter. They will either say, “We accept that you’re covered.” In most cases they do not. They will send a reservation of rights letter that says, “We have not determined right now whether you are covered or not. We’ll reserve that for some later date, but we will defend you right now.” Or they tell you, “We have determined that the incident you’re accused from is not covered and we will not hire an attorney to defend you and you are left out on your own.” So specifically answering your question, “Who is going to determine that?” At least initially when the event occurs, it’s going to be the insurance company that decides whether they believe it’s covered or not.
PC: And what fallback do I have?
JM: The fallback that you would have is actually… Let’s say that they determine that you’re not covered and they issue a letter to you and say, “We’ve decided you’re not covered. We’re not going to hire a defense counsel for you and you’re left out on your own.” The next process if you really thought that you should be covered for would be, of course, to consult an attorney. The attorney would review the same things, much like the coverage attorney did, and if they determine, “Yes we feel like you should be covered,” you would actually have to file a declaratory judgment lawsuit against the insurance company asking a judge to declare that they should have to cover it. And that certainly does occur. But of course, that’s time consuming and the cost associated with that at least initially are borne by you.
KM: Yeah. Right, exactly.
PC: Sounds like a divorce proceeding.
KM: Hm. Maybe.
PC: You know, you’re suing the person that’s supposed to be on the same side of the table as you are.
KM: Okay, I’m going to go back because I still don’t understand. Can you define, or give an example – and I know this is a moving target, but – define or give me a scenario of what is a professional incident?
JM: Wow. I will tell you – that’s very, very difficult in the circumstance of a counselor. The reason why is you literally counsel people. You don’t tell them what to do. Part of the problem is it’s almost easier to back into it. Like, I would tell you, and we all certainly know this, but if you were to have a sexual relationship with your patient – that’s not a professional incident. They decide to sue you and say that you’ve had this sort of inappropriate relationship and you certainly know that’s not what you were hired to do certainly. And so you really start backing into: what are you hired to do? You’re hired to counsel somebody. You’re hired to provide them therapy. You’re hired to help them related to their particular emotional, mental state. So if that’s what you’re hired to do and you’re in a setting – your office setting – and you’re counseling them and something occurs… that is the only time that it could be considered a professional incident.
PC: What was your experience, Kathleen, with the liability insurance policy in the past when you’ve had troubles and needed to use it? What happened?
KM: Sure. Like John said, the protocol is as soon as you know or you anticipate that something is happening, your due diligence to notify the malpractice carrier is you have to do that very quickly. Which I did every time and they simply refused each time.
PC: And you being the little ol’ counselor didn’t have enough money to sue the-
KM: The nice girl on the block!
PC: You didn’t have the funds to sue the insurance company to get them hopefully to reverse-
KM: Well, there were other things happening where the funds were going elsewhere.
PC: But that’s the point. You didn’t have deep, deep pockets and these guys know that.
KM: Right. Yep. Now, what’s really interesting with the malpractice because they purport1, “Oh, we’ll be right there if you ever get a complaint and you have to defend the complaint in front of the board,” I can categorically tell you that all seven times I had to do it all by myself. It was not…
PC: They didn’t participate.
KM: They did not participate. But they say that, “Oh yeah, we’ve got $50,000 worth of defense coverage if you ever get a complaint.”
PC: But they didn’t participate because they declined in the first place.
KM: Yeah, they did.
PC: If they’d accepted then they would have sent the lawyer with you.
KM: And they would have picked an attorney. I don’t have the pleasure of picking the one that I want to represent me because I think my attorneys know me better than somebody from Chicago or somewhere. It’s kind of like going through a drive-through. It’s like I don’t want to go do that. I want to be able to pick my own attorney. And I think that’s an important point, John, if you could expand on that.
JM: Yeah, you know, listen. There are coverages where you can negotiate in. I don’t know necessarily about with this particular insurance company but there are coverages and it’s one of those things. Medical doctors typically get to include in their insurance coverage that they get to pick the individual they want to be their attorney if they need to do so. And the insurance company has the ability to hire somebody else to help monitor that and to do those things as well. But typically, they’re going to hire attorneys and counselors that they have relationships with and that they’ve used for cases in the past that they believe work on a regular basis in this area. And so, I would not say that the law firms that I know around here that primarily do insurance defense. Nobody jumps out to me as somebody, “Oh gosh, you wouldn’t want this person or that person.” I think they’re mostly dually qualified to be able to do this kind of work. But you’re absolutely right. You get right back into a situation to where you don’t have a relationship with the particular individual and do they know about you? It’s much more comforting to have somebody that knows you personally, knows your practice, knows things that you’ve gone through because you have a sense or a feeling that they might do something more. But the actual truth of the matter is the attorneys are going to do what they can either way.
PC: At what point should you read your policy: Before you buy it or after?
JM: Before you sign. Before you pay for it so that you understand what you are in fact purchasing.
PC: Can you take it home and read it or are the insurance agents going to expect you to sit there and read it in five minutes or less and actually comprehend it? What do you suggest there?
JM: The insurance agent from the very beginning I would be telling them, “I want to know what’s covered and you explain it to me. And I want to know what’s excluded and you explain that to me before I do anything.” This is very much like purchasing a car. How many people go in to purchase a vehicle and they’re handed a particular sale agreement and they don’t ever read that. They don’t read the exclusions on the back of it. I bet you there’s very few people that have looked on the back of a car purchasing agreement to look at all of the boilerplate language that’s on the back of it. It just doesn’t occur. And so there’s a lot of language in there that you think you can just gloss over, but in the case of your insurance, your malpractice insurance, you shouldn’t.
PC: I had a lawyer friend a long time ago tell me – in answer to the question, “What does the fine print say?” – he said, “You can read all that if you want, but all it says is if you make your payment, you got no problem. If you don’t make your payment, you don’t have a prayer.”
JM: That’s probably right.
KM: For me, because it’s a group center, I have to list with my carrier everybody that’s in the office. Everyone.
PC: That’s a good point.
KM: And they don’t tell you that. And so… and that is a good point because I think a lot of mental health professionals who are renting space for other people, they may want to call their carrier and say, “Hey, do I need to list everybody that’s in my office even though they’re just renting a little part-time office from me?” And more times out of ten, that malpractice liability insurance is going to say, “Well, why didn’t you in the first place?”
JM: I think a lot of times you think of it the wrong way. No you specifically, but the individual that has the insurance. They think about it from the standpoint of what’s going to happen, what do I need to do? Even what we’ve talking about - what am I covered for? – Whereas you got to look at it from the standpoint of the individual that’s going to put in the claim against you. What are they going to claim against you? If you have a space and you’re renting to another therapist – well, that’s a relationship between you and that therapist. The individual that is seeing that therapist, they’re not privy to that information. They don’t have any idea what your relationship is. As far as they’re concerned, when they walk into the office and see your office sitting right there and they’re office sitting right there, you’re all together. So when they get upset with the other therapist, they’ll probably sue everybody. And that’s where you really got to get into it. When you talked about what’s really covered and what’s not and you want me to give an example, I’m very hesitant to do that because I wouldn’t want to tell anybody this is covered and you sort of have this preliminary opinion. But let me try to put something in order so that you could at least understand it. What would a patient or a patient’s family sue somebody for, okay? Let’s say you come in to get counseling for one particular item. Let’s say that you have a child. You said that the child needs help in one area and then that develops into another area. And then something is discovered related to the family or something like that, and then you have obligations to do certain things. Is it possible that the family’s going to be upset that they thought you were charged with one obligation to do one thing, and it moved and delved and evolved into something else? It’s at least possible. Now, I’m not going to say whether the insurance company is going to cover that or not cover that, but I would tell you that at least in my mind that starts to get into that’s negligent. It’s not gross negligence. I don’t think it’s something that is intended. So it’s very difficult to say what you might give advice for, but if you come from the standpoint of what someone might get upset about and what someone might sue you for and you start to think of those situations, then you could start thinking of, “Well, was this an accident? Was this a mistake? Or was I really far afield?” Like I said, it’s very easy to go into the areas that are excluded. If you start providing somebody related to a new type of therapy technique that you haven’t obtained any training in whatsoever and then it doesn’t go well, very quickly somebody that’s angry might sue you. They might file suit because- and if they discover that you were providing therapy related to a technique that you’ve never been trained on or never had any peer review on, it puts you in a position that they can easily say you shouldn’t have done that. Now, you’re the insurance company now and you say, “Well, wait a second. That seems like negligence but you know that you should not be providing this so we’re going to say that that’s not negligence borne from a professional incident. We’re going to say,” if we’re the insurance company, “that’s something that you absolutely know or should have known you shouldn’t have been doing and therefore it goes outside the realm of negligence and we’re going to deny coverage.”
PC: Well, I don’t think I’m going to step outside the room today.
KM: I don’t think I’m going to work today. No. Okay, so-
PC: We have three minutes left.
KM: Yes, and I’m going to eat a piece of chocolate and then we’re going to refocus and I want to ask you, John, how to keep the next generation of mental health professionals safe and protected and defending their livelihood. What are the remedies? What kind of takeaways can you encourage them to do to be proactive in securing some sort of fallback should something happen?
PC: Let’s give them a two- or three-point checklist.
JM: Okay. I’m going to start with give an example of something I used to do. Experience and knowledge is everything, okay? So when I first started practising seemingly a long time ago now, one of the things that I used to do is I would have a hearing. Let’s say I would have a motion to quash a deposition hearing. It’s a simple hearing. It’s probably going to last me 15 minutes. I go down to the courthouse. I do my hearing. I leave. One of the things I used to do as a young attorney and I did it for the first decade of being an attorney and still do it every opportunity that I can, is I arrive very early and I leave very late. And the entire purpose for doing so is gaining knowledge from other people’s experiences. I used to always tell everybody because they would say, “How do you know about this or this? Or this thing?” And I would be able to tell them, “Well, because I watched it. It was the sixth hearing before my hearing. It was the fourth hearing after my hearing.” And I stole their experiences. And so when I would leave one day from having one hearing, rather than having the experience of that particular situation, I left with 11 experiences. And I got to put that and file that back in my brain and I get to have that if it ever occurred related to me. So putting that in the realm for you: I would say if you’re a new practising therapist, one of the first things that I would do is find a mentor. To me, that is one of the most important things that you’ve got to do. Find one. If the person doesn’t want to help you, find another one. Take them to lunch. Tell them you want to steal some of their experiences. Spend a lot of time with peers talking about their experiences, your experiences, sharing those things in such a manner that you now have those things. Because if you rely solely on what you know and what you’ve experience, it’s going to be really, really slow growth. So next thing happens if you’re talking about your insurance. Find a good agent – one that’s going to be able to explain things to you. Before you sign on the dotted line, talk to that mentor. Talk to some peers. “What does yours say? What did you do? What is your experience? Is there anything else we can get on this?” And when you’re looking at other coverages that are available, what else is available? Can I get an umbrella policy for an extra million dollars and it’s only going to cost me $150 more a year? You need to know that. If you found that out after the fact, you’d be significantly frustrated. The other side of it is to really understand that it is not sufficient to think that you are just counseling your clients. You have a business. You have to think of it as a business, in which case you probably need a business mentor as well. You probably need an individual that can help supply information on what they did in their business. How did they set it up? What sort of entity or choice of entity did they use? That dovetails into the next thing: I’m an attorney. I think everybody should know a good attorney. You should be able to have a relationship with an attorney such that you can actually call them, talk with them, be able to get some advice from them. So surrounding yourself with these individuals. You would do it if you wanted to do your taxes. You’re not going to sit down and say, “Well, I absolutely know all of the information I need to know under the internal revenue code and so I could certainly take care of that.” You’re going to consult with a tax accountant, so why not consult with business individuals, other counselors, other things like that? I will tell you if you’re not willing to go through that effort, if you’re not willing to do those things – and those things are frustrating because they don’t pay, they don’t pay you – if you’re not willing to do those things, understand that you belong in a group of therapists such that all of that is already built in. You don’t have to deal with the business. You don’t have to deal with the mentor because there’s already going to be somebody there. You don’t have to deal with those things. Those positions probably are a little bit far and few between, though, but understand if you’re not willing to go through the effort on the other side, don’t step out and practice that way.
KM: That’s great advice.
PC: Assuming somebody takes your advice in step 2 there, where would they find you, John? Website, email, phone? What have you got?
JM: I’d be happy to give you my phone number. It’s 972-788-1600. I’d be happy to even give you my cell phone. It’s 214-725-8505. Our law firm is at www.wgblawfirm.com and you could find us there. I will tell you I’m the guy that you don’t need. You don’t need me until you’re in trouble. You want to avoid ever having to call me. The only reason why you should call me is to say, “I need help to set up things so who in your office does that?” Primarily our office relates to a transactional, more transactional practice. I’m there as a litigator because of all the things that happen that are spin offs of that.
PC: You clean up the mess after the fact when people don’t do what they should have done yesterday.
JM: Absolutely. That’s why I joked earlier about being a superhero. I really only come in when there’s a problem.
KM: I like superheros.
PC: People should call your shop and talk to John Pierce, your partner.
PC: He’s the one that we did the podcast with a week or two back without the theme song.
JM: Yes, and everybody should have a theme song.
PC: I would think so, but he doesn’t have one. He doesn’t have one.
JM: And that’s fine with me.
PC: Kathleen, he doesn’t have a superhero outfit, either. Where can people find you, my dear?
PC: Or you can find her in my office emost of the time because she spends a lot of time in here. And I’m still Phillip Crum, the Content Marketing Coach found at www.contentmarketingcoach.us. This has been a blast.
KM: This has been an awesome blast.
JM: Thank you. It’s been wonderful. I appreciate it.
PC: You bet.
KM: I hope you’ll come back sometime.
JM: I’ll come back anytime.
PC: It makes talking about scary stuff at least fun.
JM: For as long as I have a theme song.
KM: I think it’s important to have this discussion.
PC: I think so. So, cue the outro theme song and on we go. Thanks for listening, everybody, we’ll see you next time.
KM: Thank you.
PC: And don’t forget to plan your work-
KM: And work your matrix.