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These 5 Actions Minimize Professional Liability Risk for Behavioral Health Workers in the Fight Against School Violence

Behavioral specialists can’t predict or prevent every incident. Here are five critical risk management steps psychiatrists, psychologists, counselors and social workers should take now to mitigate liability exposure.
By: | November 1, 2018 • 6 min read

In the first half of 2018 alone, school shootings averaged about one per week in the U.S. According to statistics compiled by the CDC in 2015, nearly 8 percent of students had been in a physical fight on school property within the previous year, and 21 percent reported being bullied. Six percent said they skipped at least one school day because they did not feel safe.

Schools are increasingly battling violence, and when injured parties seek to hold someone accountable, behavioral health specialists often find themselves on the front lines.

“If a behavioral health provider was treating a youth who commits an act of violence, any affected party could file a lawsuit claiming they did not take the proper steps to spot and mitigate the risk,” said Kristen Lambert, Esq., MSW, LICSW, FASHRM, Vice President Risk Management for Allied World.

“In addition to litigation, providers like psychiatrists, psychologists, social workers and counselors could face disciplinary action from their respective boards of registration, including license restriction or revocation.”

While behavioral health providers do play an important role in identifying and mitigating the potential for violence, they can’t prevent every incident. In order to provide the best care or guidance while also protecting themselves from liability, behavioral health specialists should follow these five steps:

1. Obtain informed consent for adolescent clients from the right authorities.

Kristen Lambert, Esq., MSW, LICSW, FASHRM, Vice President Risk Management for Allied World

If a client or patient makes a statement implying that he or she intends to commit violence, the behavioral health provider should know who they can share that information with if the client or patient is a child. Before they share such information, it is important to obtain informed consent from the person who has the legal authority for the child.

Absent informed consent or in an emergency situation, the provider may be limited in who he/she can communicate with regarding the threat. This may inhibit any effort to prevent a violent act from taking place and increases liability exposure for the behavioral provider.

The first step is identifying who has legal authority to provide consent.

“There may be a variety of folks involved in the child’s life. There are legal guardians, teachers, school counselors, a primary care physician, maybe a social worker,” Lambert said. “The behavioral health provider needs to know when it’s appropriate to have a dialogue with them, and that can only happen when informed consent is obtained at the outset.”

2. “If it wasn’t documented, it wasn’t done.”

Behavioral health providers should document their treatment of a patient.

“If something happens, the people affected by violence are going to look into that adolescent’s medical record. They’re going to see if the behavioral health specialist actually asked that child if he or she was a threat to themselves or others,” Lambert said.

“If that interaction was not documented, it may be more difficult to establish that the specialist adequately assessed the risk.”

Documentation can be as simple as a short narrative note in a medical record or a comprehensive assessment checklist. The type of record kept depends on the setting and scope of care provided. A psychiatrist working for a hospital system may use an electronic health record, for instance, while an outpatient social worker may use more informal means.

What’s most important, Lambert said, is “making sure they ask the question, ‘Are you a danger to yourself or others?’ And recording quotes directly from the adolescent rather than a subjective interpretation of their response.”

3. Determine your duty to warn about potential violence.

Each state has specific regulations or case law outlining when health care providers’ duty to warn about potential violent behavior exceeds their commitment to patient privacy. Some states absolutely mandate that providers warn law enforcement if a patient indicates they will commit a violent crime, while others say they may provide warning, but are not required to.

“HIPAA allows providers to advise families, law enforcement or others whom they believe can lessen the threat,” Lambert said. “That’s federal law, but providers need to know what’s required by their state and be aware when state laws change.”

State legislation around duty to warn tends to follow laws regarding gun access and ownership. New Jersey, for example, recently strengthened its duty to warn standard as part of a new law limiting gun access to any person posing a threat to themselves or others.

4. Consult a legal professional about making predictive statements.

Schools may occasionally ask mental or behavioral health practitioners if a student presents a future risk of harm. If the student has been expelled, for example, the school may want a letter from the provider stating whether it is safe for them to return to school. Court systems may also ask for letters of support regarding youth who are in state custody.

“That puts the provider in a difficult situation,” Lambert said. “There may be indicators that the student is dangerous, or that they’re okay, but who knows what will happen tomorrow? It’s important that the provider first obtains advice before putting together a letter and when doing so, a letter should only comment on the student’s current presentation, not what he or she may or may not do in the future.”

Consulting a lawyer can help determine how much risk a practitioner assumes by providing predictive information, and how a letter outlining the threat of future harm should be worded.

5. Develop an incident response plan.

If the worst happens, law enforcement officers and distraught parents will be knocking at the behavioral health provider’s door, demanding answers.

“A sheriff or constable may ask for access to the youth’s medical records. Reporters may reach out. Depending on the severity of the act, there may be a full investigation. So it’s important for the provider to know what information they can disclose and to whom,” Lambert said.

Providers should contact an attorney and their insurance company to avoid exposing themselves to unnecessary professional liability risk.

“We might advise them not to talk to the media or to other providers, or to share any information where there is a lack of privilege. Any conversation they have with someone other than their attorney could be discoverable evidence used in the investigation or in a claim against the provider,” Lambert said. “Their instinct is to help, but it is important that they do not expose themselves to increased risk.”

Access to Expert Advice Mitigates Liability Risk

Understanding their professional liability exposure can help behavioral health professionals do everything they can to prevent violence by at-risk youths, while also protecting themselves from litigation down the road. Because of the many legal and ethical nuances of treating youth at risk for violence, turning to an experienced consultant can help make critical decisions easier.

Allied World, through its strategic partnership with American Professional Agency, Inc., is endorsed by the American Psychiatric Association, sponsored by the American Academy of Child and Adolescent Psychiatry and is the sole preferred provider for the American Psychological Association where they provide expertise in risk management for mental and behavioral health providers. Lambert herself began her career as a clinical social worker working in both hospitals and outpatient clinics before obtaining a law degree, practicing as a lawyer and a risk manager.

“We provide educational content for the members of the professional organizations, in addition to our insureds,” Lambert said.

“We also provide both proactive advice and incident reporting hotlines to our insured behavioral health providers. If they encounter a situation that they’re not sure how to respond to, they can call any time and get risk management guidance. Our goal is to provide the services and coverages necessary to allow behavioral health providers to focus on practicing and spend less time worrying about their exposures.”

To learn more, visit https://www.alliedworldinsurance.com/risk-control-usa-healthcare-liability

This information is provided as a general overview for agents and brokers. Coverage will be underwritten by an insurance subsidiary of Allied World Assurance Company Holdings, GmbH, a Fairfax company (“Allied World”). Such subsidiaries currently carry an A.M. Best rating of “A” (Excellent), a Moody’s rating of “A3” (Good) and a Standard & Poor’s rating of “A-” (Strong), as applicable. Coverage is offered only through licensed agents and brokers. Actual coverage may vary and is subject to policy language as issued. Coverage may not be available in all jurisdictions. FrameWRXSM services are provided by third-party vendors via a platform maintained in Farmington, CT by Allied World Insurance Company, a member company of Allied World. © 2018 Allied World Assurance Company Holdings, GmbH. All rights reserved.

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Allied World. The editorial staff of Risk & Insurance had no role in its preparation.




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More from Risk & Insurance

More from Risk & Insurance

Exclusive | Hank Greenberg on China Trade, Starr’s Rapid Growth and 100th, Spitzer, Schneiderman and More

In a robust and frank conversation, the insurance legend provides unique insights into global trade, his past battles and what the future holds for the industry and his company.
By: | October 12, 2018 • 12 min read

In 1960, Maurice “Hank” Greenberg was hired as a vice president of C.V. Starr & Co. At age 35, he had already accomplished a great deal.

He served his country as part of the Allied Forces that stormed the beaches at Normandy and liberated the Nazi death camps. He fought again during the Korean War, earning a Bronze Star. He held a law degree from New York Law School.

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Now he was ready to make his mark on the business world.

Even C.V. Starr himself — who hired Mr. Greenberg and later hand-picked him as the successor to the company he founded in Shanghai in 1919 — could not have imagined what a mark it would be.

Mr. Greenberg began to build AIG as a Starr subsidiary, then in 1969, he took it public. The company would, at its peak, achieve a market cap of some $180 billion and cement its place as the largest insurance and financial services company in history.

This month, Mr. Greenberg travels to China to celebrate the 100th anniversary of C.V. Starr & Co. That visit occurs at a prickly time in U.S.-Sino relations, as the Trump administration levies tariffs on hundreds of billions of dollars in Chinese goods and China retaliates.

In September, Risk & Insurance® sat down with Mr. Greenberg in his Park Avenue office to hear his thoughts on the centennial of C.V. Starr, the dynamics of U.S. trade relationships with China and the future of the U.S. insurance industry as it faces the challenges of technology development and talent recruitment and retention, among many others. What follows is an edited transcript of that discussion.


R&I: One hundred years is quite an impressive milestone for any company. Celebrating the anniversary in China signifies the importance and longevity of that relationship. Can you tell us more about C.V. Starr’s history with China?

Hank Greenberg: We have a long history in China. I first went there in 1975. There was little there, but I had business throughout Asia, and I stopped there all the time. I’d stop there a couple of times a year and build relationships.

When I first started visiting China, there was only one state-owned insurance company there, PICC (the People’s Insurance Company of China); it was tiny at the time. We helped them to grow.

I also received the first foreign life insurance license in China, for AIA (The American International Assurance Co.). To date, there has been no other foreign life insurance company in China. It took me 20 years of hard work to get that license.

We also introduced an agency system in China. They had none. Their life company employees would get a salary whether they sold something or not. With the agency system of course you get paid a commission if you sell something. Once that agency system was installed, it went on to create more than a million jobs.

R&I: So Starr’s success has meant success for the Chinese insurance industry as well.

Hank Greenberg: That’s partly why we’re going to be celebrating that anniversary there next month. That celebration will occur alongside that of IBLAC (International Business Leaders’ Advisory Council), an international business advisory group that was put together when Zhu Rongji was the mayor of Shanghai [Zhu is since retired from public life]. He asked me to start that to attract foreign companies to invest in Shanghai.

“It turns out that it is harder [for China] to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

Shanghai and China in general were just coming out of the doldrums then; there was a lack of foreign investment. Zhu asked me to chair IBLAC and to help get it started, which I did. I served as chairman of that group for a couple of terms. I am still a part of that board, and it will be celebrating its 30th anniversary along with our 100th anniversary.

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We have a good relationship with China, and we’re candid as you can tell from the op-ed I published in the Wall Street Journal. I’m told that my op-ed was received quite well in China, by both Chinese companies and foreign companies doing business there.

On August 29, Mr. Greenberg published an opinion piece in the WSJ reminding Chinese leaders of the productive history of U.S.-Sino relations and suggesting that Chinese leaders take pragmatic steps to ease trade tensions with the U.S.

R&I: What’s your outlook on current trade relations between the U.S. and China?

Hank Greenberg: As to the current environment, when you are in negotiations, every leader negotiates differently.

President Trump is negotiating based on his well-known approach. What’s different now is that President Xi (Jinping, General Secretary of the Communist Party of China) made himself the emperor. All the past presidents in China before the revolution had two terms. He’s there for life, which makes things much more difficult.

R&I: Sure does. You’ve got a one- or two-term president talking to somebody who can wait it out. It’s definitely unique.

Hank Greenberg: So, clearly a lot of change is going on in China. Some of it is good. But as I said in the op-ed, China needs to be treated like the second largest economy in the world, which it is. And it will be the number one economy in the world in not too many years. That means that you can’t use the same terms of trade that you did 25 or 30 years ago.

They want to have access to our market and other markets. Fine, but you have to have reciprocity, and they have not been very good at that.

R&I: What stands in the way of that happening?

Hank Greenberg: I think there are several substantial challenges. One, their structure makes it very difficult. They have a senior official, a regulator, who runs a division within the government for insurance. He keeps that job as long as he does what leadership wants him to do. He may not be sure what they want him to do.

For example, the president made a speech many months ago saying they are going to open up banking, insurance and a couple of additional sectors to foreign investment; nothing happened.

The reason was that the head of that division got changed. A new administrator came in who was not sure what the president wanted so he did nothing. Time went on and the international community said, “Wait a minute, you promised that you were going to do that and you didn’t do that.”

So the structure is such that it is very difficult. China can’t react as fast as it should. That will change, but it is going to take time.

R&I: That’s interesting, because during the financial crisis in 2008 there was talk that China, given their more centralized authority, could react more quickly, not less quickly.

Hank Greenberg: It turns out that it is harder to change, because they have one leader. My guess is that we’ll work it out sooner or later. Trump and Xi have to meet. That will result in some agreement that will get to them and they will have to finish the rest of the negotiations. I believe that will happen.

R&I: Obviously, you have a very unique perspective and experience in China. For American companies coming to China, what are some of the current challenges?

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Hank Greenberg: Well, they very much want to do business in China. That’s due to the sheer size of the country, at 1.4 billion people. It’s a very big market and not just for insurance companies. It’s a whole range of companies that would like to have access to China as easily as Chinese companies have access to the United States. As I said previously, that has to be resolved.

It’s not going to be easy, because China has a history of not being treated well by other countries. The U.S. has been pretty good in that way. We haven’t taken advantage of China.

R&I: Your op-ed was very enlightening on that topic.

Hank Greenberg: President Xi wants to rebuild the “middle kingdom,” to what China was, a great country. Part of that was his takeover of the South China Sea rock islands during the Obama Administration; we did nothing. It’s a little late now to try and do something. They promised they would never militarize those islands. Then they did. That’s a real problem in Southern Asia. The other countries in that region are not happy about that.

R&I: One thing that has differentiated your company is that it is not a public company, and it is not a mutual company. We think you’re the only large insurance company with that structure at that scale. What advantages does that give you?

Hank Greenberg: Two things. First of all, we’re more than an insurance company. We have the traditional investment unit with the insurance company. Then we have a separate investment unit that we started, which is very successful. So we have a source of income that is diverse. We don’t have to underwrite business that is going to lose a lot of money. Not knowingly anyway.

R&I: And that’s because you are a private company?

Hank Greenberg: Yes. We attract a different type of person in a private company.

R&I: Do you think that enables you to react more quickly?

Hank Greenberg: Absolutely. When we left AIG there were three of us. Myself, Howie Smith and Ed Matthews. Howie used to run the internal financials and Ed Matthews was the investment guy coming out of Morgan Stanley when I was putting AIG together. We started with three people and now we have 3,500 and growing.

“I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.” — Maurice “Hank” Greenberg, chairman and CEO, C.V. Starr & Co. Inc.

R&I:  You being forced to leave AIG in 2005 really was an injustice, by the way. AIG wouldn’t have been in the position it was in 2008 if you had still been there.

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Hank Greenberg: Absolutely not. We had all the right things in place. We met with the financial services division once a day every day to make sure they stuck to what they were supposed to do. Even Hank Paulson, the Secretary of Treasury, sat on the stand during my trial and said that if I’d been at the company, it would not have imploded the way it did.

R&I: And that fateful decision the AIG board made really affected the course of the country.

Hank Greenberg: So many people lost all of their net worth. The new management was taking on billions of dollars’ worth of risk with no collateral. They had decimated the internal risk management controls. And the government takeover of the company when the financial crisis blew up was grossly unfair.

From the time it went public, AIG’s value had increased from $300 million to $180 billion. Thanks to Eliot Spitzer, it’s now worth a fraction of that. His was a gross misuse of the Martin Act. It gives the Attorney General the power to investigate without probable cause and bring fraud charges without having to prove intent. Only in New York does the law grant the AG that much power.

R&I: It’s especially frustrating when you consider the quality of his own character, and the scandal he was involved in.

In early 2008, Spitzer was caught on a federal wiretap arranging a meeting with a prostitute at a Washington Hotel and resigned shortly thereafter.

Hank Greenberg: Yes. And it’s been successive. Look at Eric Schneiderman. He resigned earlier this year when it came out that he had abused several women. And this was after he came out so strongly against other men accused of the same thing. To me it demonstrates hypocrisy and abuse of power.

Schneiderman followed in Spitzer’s footsteps in leveraging the Martin Act against numerous corporations to generate multi-billion dollar settlements.

R&I: Starr, however, continues to thrive. You said you’re at 3,500 people and still growing. As you continue to expand, how do you deal with the challenge of attracting talent?

Hank Greenberg: We did something last week.

On September 16th, St. John’s University announced the largest gift in its 148-year history. The Starr Foundation donated $15 million to the school, establishing the Maurice R. Greenberg Leadership Initiative at St. John’s School of Risk Management, Insurance and Actuarial Science.

Hank Greenberg: We have recruited from St. John’s for many, many years. These are young people who want to be in the insurance industry. They don’t get into it by accident. They study to become proficient in this and we have recruited some very qualified individuals from that school. But we also recruit from many other universities. On the investment side, outside of the insurance industry, we also recruit from Wall Street.

R&I: We’re very interested in how you and other leaders in this industry view technology and how they’re going to use it.

Hank Greenberg: I think technology can play a role in reducing operating expenses. In the last 70 years, you have seen the expense ratio of the industry rise, and I’m not sure the industry can afford a 35 percent expense ratio. But while technology can help, some additional fundamental changes will also be required.

R&I: So as the pre-eminent leader of the insurance industry, what do you see in terms of where insurance is now an where it’s going?

Hank Greenberg: The country and the world will always need insurance. That doesn’t mean that what we have today is what we’re going to have 25 years from now.

How quickly the change comes and how far it will go will depend on individual companies and individual countries. Some will be more brave than others. But change will take place, there is no doubt about it.

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More will go on in space, there is no question about that. We’re involved in it right now as an insurance company, and it will get broader.

One of the things you have to worry about is it’s now a nuclear world. It’s a more dangerous world. And again, we have to find some way to deal with that.

So, change is inevitable. You need people who can deal with change.

R&I:  Is there anything else, Mr. Greenberg, you want to comment on?

Hank Greenberg: I think I’ve covered it. &

The R&I Editorial Team can be reached at [email protected]