Clergy Malpractice

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m30

Malpractice is generally defined as a failure to exercise an accepted degree of skill in the performance of professional duties that results in injury to another. In the past, malpractice suits were restricted almost exclusively to doctors and lawyers—a doctor prescribed the wrong medication or made a faulty diagnosis; a lawyer missed a pleading deadline or made an error in a title search. But in recent years, a small number of malpractice suits have been brought against pastors.

In the most significant ruling so far, the California Supreme Court ruled that a church and certain of its ministers were not legally responsible for the death of a suicide victim who had been a member of the church and who had counseled with the ministers.¹ In 1973, while attending college, Kenneth Nally became depressed after breaking up with his girlfriend. He often talked about the absurdity of life, the problems he had with his girlfriend and with his family, and he occasionally mentioned suicide. Though raised in a Roman Catholic home, Nally converted to Protestantism and in 1974 began attending Grace Community Church in Sun Valley, California, and became active in various church programs and ministries.

At the time of the events in question, the church employed about 50 pastoral counselors to serve a congregation of over 10,000 persons. Pastoral counseling, according to the church's 1979 annual report, was “a very important part” of the church's ministry. The church offered its counseling services not only to members, but also to large numbers of nonmembers. In 1979, the annual report noted that about half of the persons seeking counseling were nonmembers. A church publication entitled the “Guide for Biblical Counselors” noted that a number of symptoms and disorders fell within the pastoral counselor's domain, including “drug abuse, alcoholism, phobias, deep depression, suicide, mania, nervous breakdown, manic--depressive disorder and schizophrenia.” The Guide devoted separate sections to a number of disorders, including suicide, with hypothetical questions and answers. For example, one question read “You mean I could counsel with an extreme problem like a suicidal tendency or nervous breakdown or something like that?” The answer read “With the proper understanding of God's Word to diagnose and treat the problems, this could not only be done occasionally but could become the rule.” The church taught that the Bible is the fundamental Word of God containing truths that must govern Christians in their relationship with God and the world at large, and in their own lives. As a result, pastoral counseling was essentially religious in nature. The church's senior pastor, John MacArthur, testified that “we just respond as pastors, so what we do is on a spiritual level, and a biblical level or a prayer level.”

Nally was aware of the church's professed ability in treating severe depression and suicidal symptoms. He had been a student in one of the church's courses on biblical counseling (which used the Guide as a text) and sought out formal and informal pastoral counseling from the church during each of his several suicidal crises. Early in 1979, Nally again became depressed after his breakup with another girlfriend. He confided in his mother that he “could not cope.” His mother had him see a general medical practitioner who prescribed a strong anti--depressant drug but who did not refer Nally to a psychiatrist. By late February of 1979, Nally's depression did not appear to be subsiding. He was examined by another physician, and spoke briefly with one of the church's pastoral counselors during a drop--in counseling session.

On March 11, Nally attempted to take his life by consuming an overdose of the antidepressant drug that had previously been prescribed for him. He was rushed to a hospital and his life was saved. His parents, concerned about their friends' reactions to their son's suicide attempt, asked the attending physician to inform others that Nally had been hospitalized for pneumonia. On March 12, two of the church's pastors visited Nally at the hospital. Nally, still drowsy from the drug overdose, informed them that he was sorry he had not succeeded in his suicide attempt. The pastors assumed that the hospital staff was aware of Nally's unstable mental condition, and accordingly they did not discuss Nally's “death wish” with anyone else. A few days later, a staff psychiatrist examined Nally and recommended that he commit himself to a psychiatric hospital. When Nally and his father expressed reluctance at the thought of formal commitment, the psychiatrist agreed to release Nally for outpatient treatment. However, he warned Nally's father that it would “not be unusual” for a suicidal patient to repeat his suicide attempt. Nally was released the next day, and moved in with one of the church's pastors because he “didn't want to return home.” The pastor encouraged Nally to keep his appointments with the hospital psychiatrist, and arranged to have him examined by a physician who attended the church. This physician concluded that Nally was a continuing threat to himself, and recommended commitment to a psychiatric hospital. Nally rejected this advice, and the psychiatrist later called Nally's father to recommend immediate commitment. This plea was rejected by Nally's parents, his mother saying “no, that's a crazy hospital. He's not crazy.” A few days later, Nally met with another of the church's pastors, and asked “whether Christians who commit suicide would nevertheless be saved.” The pastor assured Nally that “a person who is once saved is always saved,” but warned Nally that “it would be wrong to be thinking in such terms.” A few days later, Nally moved back home. He was examined by two physicians, at least one of whom recommended commitment in a psychiatric hospital. Nally then saw another pastor of the church, who recommended that Nally see a particular psychologist. Nally did so, and was referred to a psychological clinic. Nally visited the clinic and met with a registered psychologist's assistant. A few days later, Nally met with a former girlfriend who rejected an apparent marriage proposal by telling Nally “I can't marry you when you are like this. You have got to pull yourself together.” Three days later, on April 1, 1979, Nally committed suicide by shooting himself in the head with a shotgun.

Nally's parents filed a lawsuit naming the church and four of its pastors as defendants. The parents alleged that the pastors were responsible for the death of Nally on the basis of “clergyman malpractice.” Specifically, they alleged that (1) the church was negligent in the training and selection of its spiritual counselors, and in not referring Nally to medical professionals, (2) the pastors failed to make themselves available to Nally following his first suicide attempt, and “actively and affirmatively dissuaded and discouraged him from seeking further professional psychological or psychiatric care”, and (3) the pastors were guilty of “outrageous conduct” for teaching “certain Protestant religious doctrines that conflicted with Nally's Catholic upbringing” and which “exacerbated Nally's pre--existing feelings of guilt, anxiety, and depression.” With regard to the last allegation, the parents alleged that the pastors' counseling was “outrageous” because they “taught or otherwise imbued Nally, whom they knew to be depressed and having entertained suicidal thoughts, with the notion that if he had accepted Jesus Christ as his personal savior, he would still be accepted into heaven if he committed suicide.” As proof of their charge, the parents referred to the counseling session in which Nally had been informed that a Christian who commits suicide would nevertheless be “saved” since “a person who is once saved is always saved.”

The parents also relied on a short passage taken from a 12--part tape recorded series by one of the pastors entitled “Principles of Biblical Counseling” that was recorded several months after Nally's death. The tape--recorded passage stated that “suicide is one of the ways the Lord takes home a disobedient believer. We read that in the Bible. . . . Suicide for a believer is the Lord saying, `Okay, come on home. Can't use you anymore on earth. If you're not going to deal with those things in your life, come on home.'” The parents also cited an occasion when Nally's father opened the office door of one of the pastors and found Nally in the midst of a counseling session and on his knees crying. They also referred to a statement of the church's senior pastor that spiritual counseling (such as he gave Nally) could potentially cause “the deepest depression.” The trial court granted the church and pastors a summary judgment, and the parents appealed to a California state appeals court. The appeals court reversed the summary judgment, concluding that a legitimate question existed on the issue of outrageous conduct. The trial court again ruled in favor of the church and its pastors, concluding that “there is no compelling state interest to climb the wall of separation of church and state and plunge into the pit on the other side that certainly had no bottom.” The state court of appeals again reversed, noting that “nontherapist counselors,” both religious and secular, have a duty to refer suicidal persons to psychiatrists or other physicians qualified to prevent suicide. That ruling was then submitted to the state supreme court for review.

The California Supreme Court rejected the court of appeals conclusion that a pastor has a legal duty to refer suicidal persons to medical professionals. It acknowledged that in a few previous rulings it had found hospitals and staff psychiatrists responsible for the deaths of suicide victims confined in hospital psychiatric wards. However, the court concluded that such cases were limited to “the limited context of hospital--patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patient's unstable mental condition.” Such cases were of no relevance to churches and clergy “not involved in a supervised medical relationship” with a suicidal person.

In rejecting the main contention of Nally's parents—that the church and its pastors were negligent in failing to refer Nally to medical professionals—the court observed:

Nally was examined by five physicians and a psychiatrist during the weeks following his [first] suicide attempt. [The church and its pastors] correctly assert that they arranged or encouraged many of these visits and encouraged Nally to continue to cooperate with all doctors. In addition, following Nally's overdose attempt, [a physician] warned [Nally's parents] that Nally remained suicidal and that they should encourage him to see a psychiatrist on his release from the hospital. [Nally's parents] also rejected [two other physicians'] suggestions that Nally be institutionalized because, according to [the parents], their son was “not crazy.” Nevertheless, we are urged that mere knowledge on the part of the [church and its pastors] that Nally may have been suicidal at various stages in his life should give rise to a duty to refer. Imposition of a duty to refer Nally necessarily would imply a general duty on all nontherapists to refer all potentially suicidal persons to licensed medical practitioners. . . . While under some circumstances counselors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to impose a duty to refer—which may stifle all gratuitous or religious counseling—based on foreseeability alone. Mere foreseeability of the harm or knowledge of the danger is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.²

The court emphasized that “neither the legislature nor the courts have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of one who is not under the care of a physician in a hospital.” On the contrary, “the [California] legislature has exempted clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In so doing, the legislature has recognized that access to the clergy for counseling should be free from state imposed counseling standards, and that `the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations” (emphasis added). In further support of its conclusion that clergy have no duty to “refer” suicidal persons to medical professionals, the court observed that “because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.”

The court also rejected the contention of Nally's parents that the “outrageous conduct” of the church and its pastors was responsible for Nally's death.  Nally's parents based their charge of outrageous conduct largely on a segment of a tape recording produced by one of the pastors (quoted above). In rejecting the relevance of this recording, the court observed:

In 1981, 18 months after Nally's suicide, [one of the church's pastors] taught a series of classes on biblical counseling. The class sessions included question and answer periods that were tape recorded. During one session, a student questioned [the pastor] on whether a person who committed suicide could be “saved.” [The pastor] replied, in a manner consistent with Reformation Protestant theology views regarding sin, grace and faith, that a person neither acquires salvation by his own works nor forfeits salvation by the commission of subsequent sins. [Nally's parents] sought to introduce the tape recording at trial on the basis that it provided inferential proof of [the pastor's] advice to Nally during three counseling sessions in 1979. . . . [T]he tape does not tend to prove that [the church or its pastors] in any way encouraged Nally to commit suicide or acted recklessly in disregard of Nally's emotional state prior to his suicide. . . . [W]hat was said in an extemporaneous answer, which did not precisely reflect the thoughts of [the pastor], given almost two years after [Nally's suicide] is at best marginally relevant to prove what was said at the time in question.³

Two of the court's seven justices concluded that the church and its pastors did have a limited duty “to recognize the limits of their own competence to treat an individual, such as Nally, who exhibited suicidal tendencies, and once having recognized such symptoms, to advise that individual to seek competent professional medical care.” However, these two justices also concluded that the church and its pastors did not breach this duty of care, and their actions did not “contribute in any legally significant respect to his suicide.”

What is the impact of the Nally case on churches and clergy? Consider the following points:

1. The Nally case is binding only in the state of California. Courts in other states are free to disregard it. However, decisions of the California Supreme Court generally are treated with great respect by other state courts, and often are followed. The fact that the California Supreme Court unanimously ruled in favor of the church and its pastors should make the Nally decision especially compelling elsewhere. In summary, while it is likely that the Nally decision will be followed by other state courts, such a result is not certain.

2. In California, and other states that follow the Nally decision, nontherapist clergy will not have a “duty to refer” suicidal or emotionally disturbed persons to medical professionals. Of course, clergy in such states may voluntarily choose to recommend to a suicidal counselee that he or she contact a medical professional for assistance.

3. Some churches employ pastoral counselors who are licensed counselors or psychologists. In some cases, clergy who are licensed counselors or psychologists have opened their own private counseling practices independent of any church. While the court did not specifically address the liability of such counselors, it did cite with approval an earlier California state appeals court decision that suggested that a psychiatrist might be legally responsible for failing to take appropriate measures to prevent the death of an imminently suicidal patient.⁴ It is possible that this ruling might extend to clergy in California who are licensed counselors, psychologists, or psychiatrists.

4. Clergy in California and elsewhere may be liable for “clergy malpractice” on the basis of theories of liability other than a failure to refer suicidal persons to medical professionals. For example, a number of persons have attempted to sue clergy for sexual molestation of minors, or seduction of a church member during the course of counseling. In some cases, the plaintiffs allege that such conduct constitutes “clergy malpractice.” As a result, the Nally case does not necessarily eliminate lawsuits alleging clergy malpractice, even in the state of California.

5. Should churches still purchase “clergy malpractice” or counseling liability insurance for their pastoral staff? My recommendation is that churches continue to purchase counseling liability insurance. I base this position on the following two factors. First, this type of insurance is inexpensive, and in light of the Nally decision should become even less costly. Second, while it is very unlikely that a minister will be successfully sued for malpractice in counseling, it is entirely possible that a minister may be sued. Counseling liability insurance will cover the costs of defending the lawsuit, and will pay any settlement or judgement up to the policy limits. In other words, while clergy who are sued for counseling malpractice will almost certainly prevail in court, the cost of a successful legal defense can easily amount to several tens of thousands of dollars. A counseling liability insurance policy ordinarily will pay these costs on your behalf. If you do not presently carry counseling liability insurance, check with your church liability insurer. It generally is cheaper to obtain this coverage under your existing policy than to purchase it separately.

A few other courts have rejected claims of “clergy malpractice,” on different grounds. To illustrate, the Ohio Supreme Court refused to recognize the alleged tort of “clergy malpractice” in a case involving the sexual seduction of a wife during marital counseling. A husband and wife who had been experiencing marital problems went to a Lutheran minister for counseling. They selected him because “he held himself out to the public . . . as a minister and counselor trained and able to provide counseling for marital difficulties.” During the final three or four weeks of counseling, the minister allegedly engaged in consensual sexual relations with the wife. These relations, and the counseling, ended when the husband learned of the affair. The husband, who was later divorced from his wife, sued both the minister and his church. The suit against the minister alleged “clergy malpractice,” breach of fiduciary duty, fraud, misrepresentation, nondisclosure, and intentional infliction of emotional distress. The suit against the church alleged liability based on negligent supervision and negligent training of the minister. The husband alleged that the minister's actions resulted in his divorce and caused him to suffer “mental and emotional anguish, shock, nervousness, and depression.”

A trial court dismissed both suits, and a state appeals court ruled that the husband could sue the minister for intentional infliction of emotional distress (it dismissed all of the other allegations). The case was then appealed to the state supreme court, which dismissed all of the husband's charges against both the minister and church. The supreme court began its decision by acknowledging that clergy are not immune from legal liability for their actions. It observed that “religious leaders have been held liable for obtaining gifts and donations of money by fraud; for undue influence in the transfer of property; for the kidnapping of a minor; for unlawful imprisonment; and for homosexual assault.” The first amendment guaranty of religious freedom did not prevent liability in these cases, and did not protect the minister in the present case, since “we find it difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice in any faith.”

The court then proceeded to reach the following conclusions: (1) the minister was not guilty of clergy malpractice since malpractice implies negligent conduct and the minister's actions were intentional in nature; (2) the allegation of intentional infliction of emotional distress failed since this allegation “in truth and effect asserts an action for . . . alienation of affections” (i.e., enticing a spouse to lose his or her affections for the other spouse)—and such a tort was abolished by the Ohio legislature in 1978; and (3) the allegations of breach of fiduciary duty, fraud, misrepresentation, and nondisclosure were similarly rejected, since they all sought damages based on the minister's seduction of the wife, and as such were barred by the state law prohibiting lawsuits based on “alienation of affections.” The court also concluded that the church was not liable:  “[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually . . . guilty of a claimed wrong against the employer. Because no action can be maintained against [the minister] in the instant case, it is obvious that any imputed actions against the church are also untenable.” The court emphasized that it found the alleged conduct on the part of the minister to be “reprehensible,” but concluded that there was no basis for relief available to the husband.⁵   

Similarly, the Colorado Supreme Court refused to recognize the theory of “clergy malpractice” in a case involving the seduction of a female church member by a Catholic priest.⁶ The woman had claimed that the priest “negligently performed his duty as a marital counselor.” The court viewed this theory as a claim of malpractice, which it defined as “any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.” Since a priest was involved, the court characterized the malpractice claim as a claim of “clergy malpractice.” However, the court ruled that the lower courts had properly dismissed this claim since “to date no court has acknowledged the existence of such a tort” and it raises “serious first amendment issues.” The court acknowledged that psychologists and psychiatrists may be sued for malpractice if they engage in sexual relations with counselees. However, a Colorado statute specifically excluded clergy from the list of counselors who can be sued for malpractice on the basis of such conduct, and accordingly the court ruled that the priest could not be sued for malpractice.

A Utah court refused to recognize “clergy malpractice” as a basis for legal liability.⁷ A minister who used church funds to send a 17--year--old boy to visit his brother was sued by the boy's mother. The mother alleged a variety of wrongs, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother's claims. In rejecting the mother's charge of clergy malpractice, the court observed:

The court quoted with approval from the Nally case (discussed above): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court's refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother.

Finally, a Missouri appellate court left unanswered the question of whether a cause of action for clergy malpractice should be recognized in that state. The court observed that to “avoid a redundant remedy” the concept of clergy malpractice must address conduct that is not already the basis for legal action.  For example, clergy malpractice should not be expanded to cover such areas as defamation, infliction of emotional distress, interference with contract, or invasion of privacy, since all of these are already well--recognized legal theories. Clergy malpractice, concluded the court, must be limited to negligent counseling. However, the court acknowledged that recognizing a cause of action against a minister for improper counseling may well violate the constitutional guaranty of religious freedom.⁹

Legal Liability—Negligence

Defamation

Undue Influence

Invasion of Privacy

Contract Liability

Securities Law Violations

Failure to Report Child Abuse

Diversion of Church Funds

State Regulation of Psychologists and Counselors

Seduction of Counselees and Church Members