By Posey, Lawton W.
The Christian Century , Vol. 114, No. 16
Are we heading for a ministerial malpractice muddle? The courts have generally refused to allow malpractice suits against clergy, but last year the New Jersey Superior Court ruled that a woman could sue a priest who had counseled her for multiple-personality disorder and depression. The woman claimed that the priest caused her emotional distress when he became sexually involved with her during the counseling period; he is charged with negligence and malpractice. A second priest publicized the nature of the relationship in letters to the parish and a sermon; he is charged with defamation, slander and breach of fiduciary duty. The case is now being reviewed by the New Jersey Supreme Court.
The case intensified concerns about clergy being the object of malpractice suits and suggested that clergy may be held to the "standards of care" formerly reserved for medical practitioners and other professionals. Those concerned about the First Amendment rights of religious groups believe that, while cases of sexual harrassment certainly should be prosecuted, secular courts should not be handed the power to decide what constitutes good pastoral care.
The development of the New Jersey case, which will probably not be the last such case, suggests that clergy, in their practice of pastoral care, should not overstate their competency as counselors. They may be vulnerable not only to charges of malpractice, but to charges of misrepresenting their professional skills.
I myself may have been guilty of presenting the illusion of competency from time to time, though in recent years I have been tempted to tell people that I am not a counselor but a minister of the church. My ordination four decades ago was issued by a body of clerics who made no pretense of having any particular skills in counseling.
Like many newly minted ministers I worked to surpass basic ordination standards. I slogged through units of clinical pastoral education, spent a year studying in a local counseling center and underwent psychotherapy. I became certified as a chaplain and acquired a counseling license. Today, as a retired chaplain still active in parish ministry, I value the specialized education I received but retain some misgivings about the expectations people have of me as an ordained pastor. When people call upon a minister they always seem to think that they are consulting with someone who is a counselor. In reality, they are speaking with an informed pastor who is doing his or her job and referring those who need professional help to other, more credentialed persons.
Early in my chaplaincy career I raised the issue of malpractice insurance with the director of the department of pastoral care in the Catholic hospital where I was employed. He had never entertained the slightest notion that such insurance might be necessary. Happily, my inquiry was greeted with seriousness by the hospital administration, which assured me that I was covered under the hospital's blanket liability policy. Because I ministered to a wide range of persons, I thought it important to have protection against suits which might be filed against me.
In particular, I was concerned with the issue of violation of privacy, since I entered patients' rooms unbidden. I was also increasingly aware of the problem of "bad advice" (from which my somewhat Rogerian methods may have protected me). My department was aware of potential problems, yet the staff chaplains still saw everybody admitted to the hospital rather than only those who had requested our services or been referred by a physician or other medical practitioner. Then there was the thorny issue of access to medical records for recording purposes. …