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Clergy malpractice: Protecting consumers or unconstitutional secular intrusion?
FICC Quarterly, Winter 2000 by Hagglund, Clarance E, Weimer, Britton D
I.
INTRODUCTION
For most of our nation's history, lawsuits against clergy were considered scandalous. As a result, such litigation was extremely rare. However, in recent years, the social stigma that attends such litigation has diminished. The psychological barrier has been breached, and disgruntled former parishioners now have "permission" to sue. Like dissatisfied consumers of a defective product or service, they now seek monetary compensation in civil courts.
Despite the more favorable psychological climate, though, there still exist imposing legal obstacles to a successful clergy malpractice suit. Most claims against ministers are barred by the First Amendment, since secular courts cannot evaluate religious standards of care. Clergy negligence suits would force courts to judge the competence, training, methods, and content of the pastoral function in deciding whether a minister breached the standard of care.
However, not all clergy misconduct is immune from judicial scrutiny. In many cases, the courts will intervene when the conduct is intentional or the religious standard of care is not an element of the cause of action. This article will examine the many facets of this broadened but complex area of law.
II.
COUNSELING NEGLIGENCE
In the landmark case of Nally v. Grace Community Church of the Valley,1 the California Supreme Court ruled that counseling-malpractice claims would not lie against a minister for failing to prevent the suicide of a church member. First, the court noted that ministers do not claim access to the same training as psychologists and psychiatrists; therefore, they cannot be judged by the same professional standard of care. Second, the court held that establishing a separate liability standard for clergy would entangle the courts in evaluating religious doctrine. Imposing a duty of care on pastoral counseling "would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity."2
Several states have followed the reasoning of Nally and refused to allow clergy-malpractice claims for counseling. For example, in Hertel v. Sullivan,3 the Illinois appellate court refused to hold a priest liable for violating the standards of care applicable to a psychologist: "A priest or minister is not required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified psychologist."4
Likewise, in Bladen v. First Presbyterian Church,5 the Oklahoma Supreme Court rejected a claim against a minister for bad advice during marital counseling: "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."6
In Strock v. Pressnell,' the Ohio court articulated a useful rationale to explain the court's reluctance to recognize such claims:
The reluctance of courts to embrace the tort of clergy malpractice may be attributed to the many, and often complex, quesdons that arise under it. For example, what exactly are the "professional services" rendered by a cleric? And does the standard of the professional vary with the ecclesiastical office? In other words, is a rabbi, priest, pastor, or lay elder held to the same standard of care regardless of training or wide variances in the authority and obligation of religious offices? Also, where a "professional service," such as the marriage counseling involved in this case, is not unique to the cleric, should the cleric be held to the same duty of care as secular counselors. Finally if a legal duty is imposed on clergy to perform or not to perform in a particular way, will this clash with the religious beliefs of some faiths and thus violate the Free Exercise Clause of the First Amendment to the United States Constitution?8 Alabama, Arkansas, Colorado, Nebraska, New Jersey, Pennsylvania and Utah have followed suit and adopted this same rationale.9 To date, no states have recognized clergy counseling malpractice claims.
However, some courts have been unwilling to go as far as Nally. Instead, they have adopted an incremental approach with respect to this tort and simply refused to recognize counseling malpractice under the facts before them.10 It is likely that these courts may yet recognize counseling malpractice if the minister has secular counseling credentials. For example, they might allow a malpractice claim against a minister who is also a licensed psychologist or psychiatrist. In such cases, though, the court might still refuse to evaluate church doctrine, instead applying the secular professional standard. As the Seventh Circuit noted in Dausch v. Ryske:11
[I]t is entirely possible that, in an age when many ecclesiastical organizations have assumed the task of providing a variety of medical and social services, a particular church might also offer purely secular counseling as a service to the members of its congregation or to a broader segment of the population.... If a church were to undertake such a project ... those who provided such professional services on behalf of the church would indeed be subject to the same legal strictures as those imposed upon individuals who undertake to provide such services in another setting.12
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