Malpractice Lawsuits Against Pastors
By Raul Rivera
Counseling has always been an important part of ministry
Counseling has always been an important part of Pastor Ned's ministry, so much so that he has made it a point to spend 10 to 12 hours per week practicing many forms of counseling. From premarital counseling and couple's counseling to just plain pastoral counseling, Pastor Ned has done it all, and fairly successfully he thought...until Edward came to his office that day in search of some answers to his trials and tribulations. Needing to offer some sort of solace and direction, Pastor Ned gleaned scriptural answers for Edward to the best of his ability, though he had to admit he felt a bit inadequate to advise in the financial capacity that Edward was seeking.
Edward in tough financial times
Edward was going through a very tough financial time now that his business had taken a downturn with the economy. The depletion of profits led to a painful and reluctant 65% staff reduction, the results of which could not seem to preserve his rapidly dwindling savings account. In an effort to recoup some of his losses, he began to contemplate an investment opportunity that could potentially double his investment in as little as four weeks. In search of an objective point of view, Edward sought out his pastor's advice. During their meeting he shared how his business had suffered the effects of the financial downturn in the economy and that sales were down over 60%. Pastor Ned, as usual, opened with prayer, listened very carefully and spoke very little. However, when Edward asked if Pastor Ned thought that the investment idea was solid, Pastor Ned's answer was that he did not see anything disturbing in the investment idea and that to the best of his knowledge many people had engaged in those types of investments. Edward took it as confirmation that he needed to go ahead and do it.
Six weeks later
To say Edward's investment went badly is an understatement. The entire investment was completely lost, and Edward's dwindling business nearly diminished right along with it. Having interpreted the time with his pastor as a word from the Lord, Edward now battled confusion about whether it had actually been God's will for him to engage in that particular investment in the attempt to save his company. As resentment over the failed investment set in, Edward began to feel anger towards God and his pastor and even considered a malpractice lawsuit against him, feeling he had rendered advice to Edward that was outside of his qualifications.
Malpractice lawsuit?
Does Edward have a case against his pastor? Can Pastor Ned be held liable for malpractice because he rendered advice outside of a religious nature? Historically, courts have rejected the notion that clergy can be held liable for advice or counseling they give that is religiously based. What that means is that a pastor should not fear being sued simply because his advice is unacceptable or displeasing. Moreover, there are times when in a counseling session certain behaviors or lifestyles are condemned as sinful and it causes the recipient of the counseling session to feel great discomfort. When done in his/her capacity as clergy and within a religious context, courts will not accept the validity of a claim for clergy malpractice.
In Bladen v. First Presbyterian Church, the Oklahoma Supreme Court dismissed a claim made against a pastor, stating, "Once a court enters the realm of trying to define the nature of advice a minister should give a parishioner, serious First Amendment issues are implicated,"
In a Utah case the State Supreme Court ruled that to " . . . embroil the courts in establishing the training, skill and standards applicable for members of the clergy . . . is as impossible as it is unconstitutional."
What if the person commits suicide?
How about a pastor of an independent church who's only training is his local ordination? What if he/she is counseling someone who is depressed and considering suicide? What if the minister feels that he/she can walk them through it and does not refer it out to a licensed professional and the person commits suicide? The California Supreme Court ruled on such a case when 24-year-old Kenneth Nally committed suicide. He was being counseled by four of the church's pastors. Nally's mother claimed that the pastors should have referred him to a licensed professional and that the pastors lacked sufficient training to counsel him. The court rejected her claim stating that it is " . . . inappropriate to impose a duty to refer-which may stifle all gratuitous or religious counseling." Please see "do's and don'ts of counseling" below for my opinion on referring out cases.
What about non-religious counseling/advice?
Do certain crossable lines exist in counseling that is outside of a religious context? Over the last decade an increasing number of pastors have engaged in business outside of the church and have used their positions to give financial or business advice. In many cases, pastors have allowed multi-level marketing companies or individuals involved in such businesses to recruit church members into the business. While the pastor's intentions are good, this can lead to trouble, not to mention the distraction it causes. The fact is, in today's litigious society an individual can claim breech of fiduciary duty because the pastor used his/her position of authority for personal gain. Another claim is that the pastor did not exercise his/her duty to protect by allowing individuals to prey upon the flock and thus bringing financial disaster to them. While these claims may be novel, what prevents an individual from bringing them? The courts have long held that religious counseling is outside the scope of malpractice suits, but these are claims that have yet to be tested. Who wants to be first?
Do's and don'ts of counseling
When engaging in counseling there are some definite do's and don'ts that need to be followed. They are listed below.
When counseling always do the following:
1. Counsel within a scriptural context: Always stay within a scriptural context when rendering advice or any type of counseling? When asked for financial advice, be sure that you base your advice on Scripture and that you make it clear that you do so as a minister.
2. Report child abuse: Many states require clergy to report to proper officials knowledge of child abuse, which includes a child reporting it to the minister.
3. Take notes: Keeping notes is the best way to ensure a record that protects you and the church. It also allows you to better remember counseling sessions that may have happened years ago.
When counseling never do the following:
1. Refer a case out to a specific individual: This may sound strange, but many pastors have referred extreme cases out to licensed professionals for fear that they may get sued for violating the "standards of care" that apply to licensed professionals. Keep in mind that courts have consistently ruled against those claims. On the contrary, it is possible that if a minister refers a case out to a specific licensed professional, and the counselee gets worse, that a case may be made to hold the minister liable for the referral made.
2. Counsel outside a religious context: Many pastors often feel that they need to be "answers people." Never engage in rendering advice that is outside of a religious context. Whether it is financial, business, retirement or other areas, make sure you base it on a scriptural standard.
3. Disclose any information: I have seen instances where a pastor shares personally with his pastoral staff some of the information he gleans from a member during a counseling session. While this may at times be appropriate to better help the church member, it should not be done without his/her permission. Moreover, what if the staff member shares it with someone else? This could bring an invasion of privacy, defamation and other claims.
Interesting world
It certainly is an interesting world. It was not until the 1980's that church lawsuits began. Now it is very popular. Many in America have lost the fear of God and have no problem suing their church or pastor if they feel it is in their own personal best interest. Do not let this discourage you from ministry. Whatever temporal suffering we go though in this lifetime could never compare with a life of eternal glory before The Great King.