Does your organization need “clergy malpractice” insurance? This question comes up because insurance companies have been offering this since the late 1970’s when clergy malpractice claims first were attempted. But note – courts have yet to recognize claims for “clergy malpractice.”[1] Therefore, why do insurance carriers offer coverage of such?
The term “malpractice” means an instance of incompetence or negligence on the part of a professional that caused damages.[2] This has been applied successfully in the medical, legal, and advisement fields, but has never been successfully applied to the church. The most common scenario prompting clergy malpractice claims is when the clergy serves as counselor. Most commonly litigated situations include improper sexual relationships arising from the intimacy of counseling sessions, failure to refer potential suicide victims to help, or simply poorly given advice. As stated above, however, none of these scenarios has resulted in a successful malpractice claim against the clergy (nor can the church be held liable when no negligence is proven against the clergy).
Besides the courts’ hesitation to get into sticky First Amendment issues, a more immediate barrier is that of practicability. Courts will not apply malpractice to churches because of the lack of a uniform standard. In negligence cases, it is imperative to show that there was a duty owed by the defendant to the plaintiff. If that duty was breached and harm resulted, then the plaintiff will recover damages. In fields of medicine and the law, those duties are uniformly applied. The question is often “what procedure is customarily performed in this medical scenario?” or “how would a competent attorney advise his client in this situation?” But how would the courts define what that duty is for a clergyman?
The difficulty lies with the fact that churches are so diverse in beliefs, protocol, and requirement of their clergy. In fact, the term “church” itself is no where defined and encompasses many more religious organizations than are called “churches” (such as temples and mosques). A judge from the most famous clergy malpractice case (Nally v. Grace Community Church) stated,
“[B]ecause 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.”[3]
The Nally case was brought against John MacArthur’s Grace Community Church of the Valley in the 1980’s after a counselee of the pastoral staff committed suicide. The parents claimed that the pastors should have done more to prevent the suicide. They also criticized the church doctrine of “once saved, always saved” as it had the effect of encouraging rather than discouraging their son’s suicide.
But the court refused to cast judgment on what should or should not have occurred in the counseling sessions. Quoting an article of Sam Ericsson (formerly with Christian Legal Society, now President of Advocates International) the Nally court said “the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.”[4] The most famous line: “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 has no bottom.”[5]
The Nally case decision has been mimicked in other states and seen as persuasive, but is not binding upon other states. The decision, although overwhelming, was not unanimous in stating that clergy have no duty to parishioners. These facts indicate that while clergy malpractice has yet to emerge, it is not impossible that it will in the future. Religious freedom has been redefined in recent decades and undoubtedly has not seen the end of reformation.
Bottom line: Although clergy malpractice is still unacknowledged by the courts, “counseling insurance” could be beneficial for your church as a precaution – not because counselees will likely be successful suing under a theory of clergy malpractice, but because such suits may be attempted.[6] Lawsuits, even if successfully defended, are very expensive because our American court system requires even winners to pay their own attorney fees. This available insurance is generally inexpensive. (But make certain it has adequate coverage.) With an increase in family discord, substance abuses, and economic stress that results in more parishioners turning to their clergy for counseling, the importance of litigation protection grows as well.
[1] Scott C. Idleman, Tort Liability, Religious Entities, and the Decline of Constitutional Protection, 75 IND. L.J. 219, 221-23 (2000).
[2] Black’s Law Dictionary, (8th ed., West 2004).
[3] Nally v. Grace Community Church of the Valley, 47 Cal.3d 278, 298 (1988).
[4] Sam Ericsson, Clergyman Malpractice: Ramifications of a New Theory (1981) 16 Val.U.L.Rev. 163, 176.
[5] Nally v. Grace Community Church of the Valley, 47 Cal.3d 278, 289 (1988).
[6] For more discussion of this recommendation, see Richard R. Hammar’s article Clergy Malpractice (available at: http://www.churchlawtoday.com/private/library/pcl/p04e.htm).
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