‘Clergy Malpractice’ Heads to Court : Suit Over Son’s Suicide and Church Counseling Reinstated

The nation’s first “clergy malpractice” lawsuit, dismissed by trial judges twice and half-tried once, was reinstated for a second trial Wednesday on a 2-1 vote by a state Court of Appeal.

The panel said counselors have a special responsibility to prevent suicide “whether those counselors are affiliated with a religious institution or not.”

The oft-argued $1-million suit was filed seven years ago by Walter and Maria Nally of Tujunga against Grace Community Church of Sun Valley over the 1979 shotgun suicide of their 24-year-old son, Kenneth.

The Nallys allege that four ministers at the fundamentalist church, which draws about 10,000 worshipers each Sunday, incompetently counseled their son, burdened him with guilt by attributing his emotional problems to sin and failed to insist that he get psychiatric help when they realized he was suicidal.

Denying that the issue raised by the Nallys was “clergy malpractice,” Justice Earl Johnson stated in the 70-page opinion for the 2nd District Court of Appeal:

“In our view this case has little or nothing to say about the liability of clergymen for the negligent performance of their ordinary ministerial duties or even their counseling duties except when they enter into a counseling relationship with suicidal individuals. . . . “

“We find established principles of California law impose a duty of due care on those who undertake a counseling relationship with suicidal individuals . . . ,” Johnson stated with the concurrence of Justice Leon Thompson.

“For those counselors not authorized to prescribe medication or initiate involuntary hospitalization the standard of care may require them, in appropriate cases, to refer counselees to those who possess these powers to prevent an imminent suicide.”

The Nallys’ attorney, Edward Barker, has contended that church counselors misrepresented that they could handle severe problems like depression and suicidal tendencies by consulting the Bible and that they wrongly failed to refer the young man to psychiatrists or psychologists or alert his parents at a time when they might have been able to help.

The church has countered that young Nally was seen by no less than eight physicians and mental health professionals in the last two months of his life and that church counselors, who visited him in the hospital after one of many suicide attempts, personally referred him to two physicians and a professor of psychology.

The church also maintained that several doctors recommended that the Nallys use their parental authority to commit their son to a mental hospital, which the church could not do. The parents argued that they would have done so if the church counselors had told them of their son’s history of depression.

Glendale Superior Court Judge Joseph R. Kalin granted a “nonsuit” of the case after the Nallys presented their witnesses during four weeks of trial in April and May of 1985, ruling that any judicial effort to set standards for pastoral counseling would violate the First Amendment’s guarantee of freedom of religion and separation of church and state.

When a defendant wins a motion for nonsuit, the judge in effect rules that plaintiffs have failed to establish a case, and so the defendant need present no defense.

“There is no compelling state interest to climb the wall of the separation of church and state and plunge into the pit on the other side, which certainly has no bottom,” Kalin concluded.

But the appellate justices said that the state does have a compelling interest in preventing suicide and that no religious rights had been breached because a church spokesman had testified that referring counselees to medical personnel violated no church doctrine.

“The First Amendment,” Johnson wrote, “does not immunize the church’s counselors from liability for failing to meet this standard of care. . . . The minimal standard of care a non-therapist owes to a counselee he diagnoses as suicidal is to take steps to place him in the hands of those to whom society has given the authority and who by education and experience are in the best position to prevent the suicidal individual from succeeding in killing himself.”

In a 19-page dissent, Los Angeles Superior Court Judge John L. Cole, who retires Friday and has been sitting on the Court of Appeal by special appointment, said the First Amendment did clearly protect the church from liability. Cole noted that the principal pastor, John F. MacArthur, indicated that referrals to mental health professionals could violate church doctrine. MacArthur testified that he would not refer counselees to psychiatrists who have a “world view.”

Scolding the majority for improperly creating law that should be left to the Legislature, Cole also criticized their conclusions about counselors’ standard of care, saying that nobody could compel an individual to see a licensed psychotherapist.