Michelle A. Adams
Attorney in Georgia
Does your organization need “clergy malpractice” insurance? Insurance companies have been offering this since the late 1970’s when clergy malpractice claims first were filed. But courts have yet to recognize claims for “clergy malpractice.” Thus why do insurance carriers offer such coverage?
The term “malpractice” means an instance of incompetence or negligence on the part of a professional responsible for damages. This has been applied successfully in the medical, legal, and advisement fields, but has never been successfully applied to a church. The most common scenario prompting clergy malpractice claims occurs when the clergyperson serves as a counselor. Most commonly litigated situations include improper sexual relationships arising from the intimacy of counseling sessions, failure to refer potential suicide victims for 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 a 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 resulting in harm the plaintiff will recover damages. In the fields of medicine and law those duties appear as a uniform standards of care. There, the questions are “what procedure is customarily performed in this medical scenario?” or “how would a competent attorney advise his client in this situation?” But how would a court define the duty normally expected of a clergyman?
The major difficulty is that churches are so diverse in beliefs, protocol, and requirements of their clergy. In fact, the term “church” itself is nowhere defined in law, and the term is commonly used for many different religious organization (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.”
The Nally case was brought against John MacArthur’s Grace Community Church of the Valley in the 1980’s after one counseled by 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” on the assumption that 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." The most famous line arising from the case: “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.”
The Nally case decision has been mimicked in other states and seen as persuasive, but it 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 as a viable basis for damages, it is not impossible that it will in the future. Religious freedom has been redefined in recent decades and undoubtedly we have 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 litigants will necessarily be successful suing under a theory of clergy malpractice but because such suits may be attempted. Lawsuits, even if successfully defended, can be very expensive because the American court system requires even winners to absorb their legal fees. This available insurance is generally inexpensive. (But make certain it provides adequate coverage.) With an increase in family discord, substance abuse, and economic stress resulting in parishioners increasingly turning to clergy for counseling, the importance of litigation protection grows as well.