Malpractice jeopardy is longer for psychologists

By Charles Patrick Ewing, JD, PhD
State University of New York at Buffalo

When a person is allegedly the victim of professional malpractice, how long may he or she wait before bringing a lawsuit? Virtually all jurisdictions have statutes of limitations, laws limiting the period of time between an act of alleged malpractice and the filing of a lawsuit seeking damages for the consequences of that act. While these time periods vary among the states, in recent years they have been shortened in medical malpractice lawsuits, largely as a result of intense lobbying by physicians and other medical professionals.

In New York State, for example, the ordinary time limit of three years for filing a malpractice suit was first amended to reduce the time limit to two and one-half years for medical malpractice, and subsequently reduced to the same time limit for alleged malpractice by dentists and podiatrists. Are psychologists covered by these new standards? One of the nation's most influential appellate courts recently held that they are not. That court's reasoning should give pause to practicing psychologists everywhere, but especially in those states like New York, in which the practice of psychology has not been adequately defined by law.

In Karasek v. LaJoie et al (699 N.E., 2d, 889, 1998), the plaintiff brought suit against several mental health care providers, including a psychologist, alleging that the defendants had negligently misdiagnosed her as suffering from a multiple personality disorder and thereafter treated her negligently, causing serious emotional harm.

One psychologist named in the lawsuit was not served with a summons until nearly three years after the alleged act of malpractice. She sought to have the suit dismissed under New York's two-and-a-half-year statute of limitations for the filing of medical malpractice actions. The plaintiff argued the action was timely under the state's three-year statute of limitations applicable to other classes of professional malpractice.

The trial court agreed and denied the defendant's motion to dismiss. On appeal, however, the Appellate Division, New York's intermediate appeals court, reversed the trial court judgment, and dismissed the complaint as time-barred. The majority observed that since health-care providers other than physicians could be liable for medical malpractice, the shorter period of limitations for medical malpractice may be applicable to a claim against a non-physician. Reasoning that since the diagnosis of human illness is "integral to the practice of medicine," the court concluded that "it must also follow that psychiatric misdiagnosis [by a psychologist] is a form of medical malpractice" subject to the two-and-a-half-year limitations period.

But the New York Court of Appeals reversed the Appellate Division and reinstated the suit against the psychologist, holding that "the three-year period for 'malpractice, other than medical, dental or podiatric' is applicable and . . . the action is timely."

The court said mental illnesses were diagnosed and treated by a host of "diverse professionals" including "psychiatrists, social workers, clerics, guidance counselors, substance abuse counselors, lay therapists and faith healers" and reasoned that "[s]urely not all diagnostic and treatment activities undertaken by this range of practitioners are properly classified as 'medical.'"

Then, in deciding whether clinical psychological services are "medical" in nature, the court noted that the New York State Education Law providing for the licensing of psychologists, "unlike the statutory analogue for social workers and physicians...does not contain a provision describing the permissible scope of the licensees' practice." The court held that, "In the absence of such a defining provision, it is difficult to even begin to assess the extent to which psychologists are engaged in medical activities."

As a practical matter, for purposes of the statute of limitations, the decision means the same services--e.g., psychotherapy--would be considered "medical" if provided by a physician or even a social worker, but not a psychologist.

While the difference between a three-year statute of limitations and one of two-and-a-half years may seem trivial, it was not considered inconsequential by physicians and their malpractice insurers, whose intense lobbying led to enactment of the shorter time period.

More significant, however, is the court's reasoning that psychologists have not succeeded in their efforts to obtain a scope of practice law clearly defining the functions of a licensed psychologist.

In recent years, organized psychologists in New York and other states have been in the forefront in efforts to secure scope of practice laws for their profession. The court's decision in Karasek v. LaJoie et al not only reflects the failure of those efforts, but should provide additional incentive to continue the fight for licensing laws that define the scope of professional psychological practice.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.



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