Parity at a Price: The Emerging Professional Liability of Mental Health Providers

60 Pages Posted: 23 Sep 2012 Last revised: 4 Jun 2013

See all articles by Thomas L. Hafemeister

Thomas L. Hafemeister


Leah McLaughlin

Cohen & Grigsby, P.C.

Jessica Smith

Macfarlane Ferguson & McMullen, P.A.

Date Written: June 3, 2013


With standards to guide treatment largely absent and a highly debilitated, stigmatized, and isolated clientele, it is hardly surprising that mental health providers have historically been effectively immune from professional liability claims. Recent developments, as described in this article, suggest that this immunity is eroding.

This evolution creates a conundrum for the courts and society. Providing mental health treatment has never been highly prestigious or particularly financially rewarding, making it difficult to recruit and retain qualified practitioners, notwithstanding that they serve a vulnerable population who at times are in desperate need of their services. Simultaneously, however, society is increasingly recognizing how crucial it is to enhance the quality of mental health services, with the tort system providing one vehicle by which this quality may be improved.

This article examines a number of areas in which professional liability claims pertaining to mental health care can be expected to increase. On the one hand this represents a triumph. It indicates that clients are sufficiently recovered, empowered, and supported that they can pursue claims against mental health providers for inadequate care. However, mental health care in this country continues to be under-funded, under-supported, and under-appreciated. To the extent that its providers feel that the delivery of this care has become too onerous, it may drive them away from the field and make critically needed services even less available. Individuals with a mental illness, too, will likely be torn between applauding the enhanced acceptance of claims of inadequate mental health services and a fear that the already limited pool of qualified care providers will be further diminished.

The debate about the impact of medical malpractice liability on the practice of medicine and whether it improves or impedes the quality of health care has raged for over a century-and-a-half in this country and continues today. The emergence of this parallel debate with regard to mental health care calls for greater attention to when and why its practitioners are likely to be exposed to professional liability, an effort undertaken herein.

Keywords: mental health care & treatment, professional liability, torts, medical jurisprudence, health law & policy, health care providers, mental health care parity, impact of liability on delivery of health care services

JEL Classification: I00, I1, I10, I18, I31, K13, K32, K4

Suggested Citation

Hafemeister, Thomas L. and McLaughlin, Leah and Smith, Jessica, Parity at a Price: The Emerging Professional Liability of Mental Health Providers (June 3, 2013). 50 San Diego Law Review 29 (2013), Virginia Public Law and Legal Theory Research Paper No. 2012-60, Available at SSRN:

Leah McLaughlin

Cohen & Grigsby, P.C. ( email )

9110 Strada Place
Mercato - Suite 6200
Naples, 34108
United States

Jessica Smith

Macfarlane Ferguson & McMullen, P.A. ( email )

One Tampa City Center
201 N. Franklin Street, Suite 2000
United States

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