COURSE PRICE: $20.00
CONTACT HOURS: 2
Wild Iris Medical Education, Inc. is a Continuing Competency Approval Agency recognized by the Physical Therapy Board of California.
Course Availability: Expires April 8, 2015. You must score 70% or better on the test and complete the course evaluation to earn a certificate of completion for this CE activity. Wild Iris Medical Education, Inc. provides educational activities that are free from bias. The information provided in this course is to be used for educational purposes only. It is not intended as a substitute for professional health care. Medical Disclaimer Legal Disclaimer Disclosures
This course fulfills the continuing competency requirement for 2 hours of education on ethics, laws, and regulations for licensed physical therapists/assistants in California.
Copyright © 2011 Wild Iris Medical Education, Inc. All Rights Reserved.
COURSE OBJECTIVE: The purpose of this course is to provide continuing competence in ethics and jurisprudence for physical therapists and physical therapist assistants in the state of California.
Upon completion of this course, you will be able to:
Many people roll their eyes and change the subject when they hear the word ethics, viewing it as too controversial or too complex to discuss freely. Nonetheless, ethics is a significant concern of thinking, caring persons, especially healthcare providers such as physical therapists (PTs) and physical therapist assistants (PTAs).
Ethics is a branch of philosophy concerned with the rightness or wrongness of human behavior and the goodness or badness of its effects. Because ethics assumes that people have the ability to make choices about their behavior it has been the subject of philosophical discussion for centuries, generating an enormous body of literature. Students of ethics divide these writings into three general categories: descriptive, analytical, and prescriptive.
Descriptive ethics reports and describes the moral choices people make.
Analytical ethics scrutinize the language people use to discuss issues of right and wrong.
Prescriptive ethics offers advice about the way people decide what is good or bad behavior, doing so from two different perspectives: teleological and deontological.
Bioethics is the application of ethics to matters of human life. As scientific knowledge expands and healthcare providers achieve greater control over disease, pain, life, and death, it is important to address issues of right and wrong behavior. Although some authors use the term morals to refer to human behavior and ethics to refer to formalized codes of conduct, the words mean the same thing. Ethics comes from the Greek word ethos and morals from the Latin word mores (Lewis & Tamparo, 2007).
In recent years some politicians have substituted the word values for morals or ethics. In truth, the word has a much broader meaning. Values are treasured ideals or attributes, such as creativity, achievement, adventure, power, friendship, and belief systems. Understanding one’s values brings purpose and clarity to life situations. The desirability of such clarity was recognized by Socrates, who is credited with saying, “An unexamined life is not worth living.”
Belief systems are organized patterns of thought regarding the origin, purpose, and place of humans in the universe. These systems seek to explain the mysteries of life and death, good and evil, health and illness. Usually belief systems include an ethical code of conduct about how people should relate to the world and its inhabitants.
Religions are patterns of thought and action that typically include belief systems, revered documents, devotional rituals, organizational structures, and faith in a mystical power. Of course, many people develop their own belief systems, independent of organized religions.
Ethical principles are fundamental concepts by which people judge behavior. These principles help individuals make decisions and serve as criteria against which people gauge the rightness or wrongness of behavior. Laws are rules made by an authority with the power to enforce them. Although laws flow from ethical principles, they are limited to specific situations and codified by detailed language. Ethical principles, on the other hand, are guiding ideals of conduct that speak to the spirit of a law rather than its letter.
Over the years, five ethical principles have emerged as especially applicable to healthcare providers. They are: respect for human life and dignity, beneficence, autonomy, honesty, and justice. The Code of Ethics of the American Physical Therapy Association, described below, applies all five principles to practice.
Respect for human life and dignity is one of the most basic of ethical principles. It requires that “individuals be treated as unique and equal to every other individual and that special justification is required for interference with an individual’s own purposes, privacy, and behavior” (Rawls, 1971). This ethical principle elevates respect for the life, freedom, and privacy of all humans. Thiroux says this principle is necessary for any moral system because “there can be no human being, moral or immoral, if there is no human life” (1990). When applied to practice, respect for human life and dignity means physical therapists:
Beneficence means doing good to benefit others. Although some writers separate beneficence (doing good) from nonmaleficence (not doing harm), Franken (1973) suggested the ethical principle of beneficence is a continuum, from a neutral not harming to a positive doing good—that is, from not inflicting harm to preventing harm and promoting good. At a minimum, beneficence means maintaining professional competence. However, it also means acting in ways that demonstrate care and nurturance. When applied to practice, beneficence means physical therapists:
Autonomy is the right of self-determination, independence, and freedom. It is the personal right of individuals to absorb information, comprehend it, make a choice, and carry out that choice. Physical therapists carry out the principle of autonomy by providing accurate, scientific information to clients, assisting them to understand the information and make decisions based on it. When applied to practice, autonomy means physical therapists:
Honesty means truthfulness in word and deed. Even when conveying unwelcome information to clients about their illness or treatment options, a physical therapist does so truthfully and with compassion, only withholding information when clients are minor children or adults with legal guardians. Dishonesty and deceit are especially grievous when they involve theft of pain-relieving drugs or devices. Honesty means absolute truthfulness regarding professional credentials and financial matters, never charging for unearned services or accepting commissions, discounts, or gratuities for covert gain. It means obeying both the spirit and the letter of the law. When applied to practice, honesty means physical therapists:
Justice implies fairness and equality. It requires impartial treatment of clients. Like other ethical principles, justice is based on respect for human life and dignity. The historic image of justice is a blindfolded woman with a scale, weighing an issue on the basis of objective evidence and judicial precepts. Justice means that scarce resources will be distributed equally, using the same criteria for everyone. When applied to practice, justice means that physical therapists:
The Code of Ethics for Physical Therapists (see below) identifies five roles, seven core values, and three means to fulfill its obligation to clients.
The five roles PTs assume as they practice their profession are:
The seven core values that physical therapists exemplify are:
The three means to meet an obligation to clients to facilitate greater independence, health, wellness, and enhanced quality of life are:
A dilemma is a perplexing problem that requires a choice between conflicting alternatives. An ethical dilemma is a moral problem that requires a choice between two or more opposite actions, each of which is based on an ethical principle. For example, a physical therapist may need to decide whether to honor the ethical principle of honesty and disclose the unlikely value of a treatment to relieve pain or to honor the principle of beneficence and withhold the information in order to give the client hope.
Resolution of ethical dilemmas requires careful evaluation of all the facts of a case, including applicable laws, consultation with all concerned parties, and appraisal of the decision makers’ ethical stance (teleological end results or deontological fixed laws).
Nowadays, ethical dilemmas in healthcare facilities arise more frequently because modern medicine can keep hearts and lungs functioning much longer than thinking brains. To help resolve these perplexing issues, many institutions appoint ethics committees made up of healthcare professionals, ethicists, lawyers, and clergy. The task of ethics committees is to help decision makers resolve ethical dilemmas. Often these committees use an ethical decision-making process such as the following:
Frank Caring, PT, has a request to go to the orthopedic unit of the hospital to ambulate the two post-operative hip replacement patients he saw yesterday. Ms. Bitter is a needy, cantankerous old woman, and Mr. Sunny is a pleasant, self-sufficient, young-for-his-age man. As Frank plans his work day, he must decide how much time to allot to each patient.
Frank realizes he is facing an ethical dilemma in which two ethical principles conflict with one another: Justice requires that he treat both clients equally, and beneficence requires that he give care and nurturance according to client needs. If he provides the care and nurturance needed by each client, he will not treat them equally. He will spend much more time and effort with Ms. Bitter than with Mr. Sunny. He does the best he can and gives both patients as much time as possible, but the issue bothers him.
At the weekly physical therapy staff conference, Frank presents the ethical dilemma for discussion. Everyone says they, too, face the same dilemma. Because of time constraints, the care and nurturance they can give to clients is limited, and it is difficult to treat clients equally. After some debate, they agree that every client should receive appropriate physical therapy; however, when clients such as Ms. Bitter need more nurturance than physical therapists can provide, they should be referred to other resources, such as agency social services.
Codes of ethics are formal statements that set forth standards of ethical behavior for members of a group. In fact, one of the hallmarks of a profession is that its members subscribe to a code of ethics. Every member of a profession is expected to read, understand, and abide by the ethical standards of its occupation.
In order to make explicit the values and standards of professional physical therapists and their assistants, the American Physical Therapy Association publishes a Code of Ethics for Physical Therapists, Standards of Ethical Conduct for the Physical Therapist Assistant, APTA Guide for Professional Conduct, and APTA Guide for Conduct of the Physical Therapist Assistant. These documents are regularly revised and updated, with the latest codes and standards effective July 2010 (APTA, 2010a).
Portions of these new documents are provided below for the convenience of practitioners. Complete and up-to-date versions can be accessed at apta.org/Ethics/Core/.
The Code of Ethics for the Physical Therapist delineates the ethical obligations of all physical therapists as determined by the House of Delegates of the American Physical Therapy Association. The purposes of this Code of Ethics are to:
No code of ethics is exhaustive nor can it address every situation. Physical therapists are encouraged to seek additional advice or consultation in instances where the guidance of the Code of Ethics may not be definitive.
This Code of Ethics is built upon the five roles of the physical therapist (management of patients/clients, consultation, education, research, and administration), the core values of the profession, and the multiple realms of ethical action (individual, organizational, and societal). Physical therapist practice is guided by a set of seven core values: accountability, altruism, compassion/caring, excellence, integrity, professional duty, and social responsibility. Throughout the document the primary core values that support specific principles are indicated in parentheses. Unless a specific role is indicated in the principle, the duties and obligations being delineated pertain to the five roles of the physical therapist. Fundamental to the Code of Ethics is the special obligation of physical therapists to empower, educate, and enable those with impairments, activity limitations, participation restrictions, and disabilities to facilitate greater independence, health, wellness, and enhanced quality of life.
Source: APTA, 2010. Reprinted from APTA Code of Ethics for Physical Therapist, with permission of the American Physical Therapy Association. This material is copyrighted, and any further reproduction or distribution is prohibited.
Pam Newsom, a new PT graduate, is working in a nursing home. An elderly client is admitted who has severe systemic cellulitis with weeping sores covering her legs and lower torso. Pam has never done wound care, and though she has read about such care, she does not have the experience or competence to treat this client.
Principle 6B of the Code of Ethics requires that physical therapists “take responsibility for their professional development based on critical self-assessment and reflection on changes in physical therapist practice, education, health care delivery, and technology.” Likewise, principle 3C states that physical therapists “shall make judgments within their scope of practice and level of expertise and shall communicate with, collaborate with, or refer to peers or other health care professionals when necessary.”
Pam should not perform procedures that are outside the scope of practice of a physical therapist, nor should she perform procedures that she does not know how to do. She should discuss the problem with her supervisor at once, preferably asking for an opportunity to learn how to give wound care to the expected standards.
The Standards of Ethical Conduct for the Physical Therapist Assistant delineate the ethical obligations of all physical therapist assistants as determined by the House of Delegates of the American Physical Therapy Association. The Standards of Ethical Conduct provide a foundation for conduct to which all physical therapist assistants shall adhere. Fundamental to the Standards of Ethical Conduct is the special obligation of physical therapist assistants to enable patients/clients to achieve greater independence, health, and wellness, and enhanced quality of life.
No document that delineates ethical standards can address every situation. Physical therapist assistants are encouraged to seek additional advice or consultation in instances where the guidance of the Standards of Ethical Conduct may not be definitive.
Source: APTA, 2010. Reprinted from APTA Standards of Ethical Conduct for the Physical Therapist Assistant, with permission of the American Physical Therapy Association. This material is copyrighted, and any further reproduction or distribution is prohibited.
A friend of Molly Softheart, PTA, repeatedly complains about her painful neck and asks Molly to treat her. At first Molly refuses, but eventually she gives in and performs four manual therapy treatments on her neighbor’s cervical spine. At first the treatments help, but after the fourth one the friend complains of increased neck pain.
Molly has violated two specific standards from the Standards of Ethical Conduct for Physical Therapy Assistant:
What action should Molly take? She should refer her friend to a physician for examination and treatment. In addition, she should have told her friend that as a physical therapy assistant, she cannot treat her without the supervision of a physical therapist or a physician. Molly has put both her friend and herself in jeopardy.
Diana Learner, PTA, has just taken a position with a healthcare agency in her community. On her fourth day at work, a client phones to say she must cancel her mid-morning appointment. Diana’s immediate supervisor tells her to document the treatment as if it had taken place, because “we reserved the time and that counts as an appointment.” Diana does not feel right about recording something that is not true.
Indeed, Diana should feel uncomfortable about such deceit. To do so would be a clear violation of standard 7D of the Standards of Ethical Conduct, stating, “Physical therapist assistants shall ensure that documentation for their interventions accurately reflects the nature and extent of the services provided.”
Diana is a new employee and feels especially vulnerable. Even so, she should go to her supervisor privately and explain that recording something that she knows is not true violates ethical standards as she understands them. She does not want to taint the reputation of the agency by making a false statement. If the supervisor insists on false documentation, Diana should consult with the local APTA branch, follow their advice, and seek other employment.
In order to help physical therapists (PTs) and physical therapy assistants (PTAs) interpret and apply the Code and Standards of Ethical Conduct, the ethics and judicial committee of the American Physical Therapy Association has published the APTA Guide for Professional Conduct and the APTA Guide for Conduct of the Physical Therapist Assistant. These guides address each and every portion of the Code and Standards. They are intended to provide a framework by which PTs and PTAs may determine the propriety of their conduct and to guide the development of students. They are available without cost to everyone at apta.org/Ethics/Core/.
Although those who provide physical therapy services gain professional certification from a recognized national organization, they practice within a society governed by state and federal law. For that reason, physical therapy professionals need to understand the basis of law (jurisprudence) in the United States, its sources and types, and the relationship of law to ethics in the practice of physical therapy.
Laws flow from ethical principles and are limited to specific situations and codified by detailed language. These rules of conduct are formulated by an authority with power to enforce them. As such, laws change with time and circumstances. In the United States, law is based on the old English system wherein the monarch held supreme power over the land and its people, acting according to “divine right.” The ruler’s decisions became the law of the land and eventually were known as common law, or case law. These case-by-case decisions set precedent and shaped future laws.
In the United States, the U.S. Constitution is the supreme law of the land, filling the role once held by the monarch. The first ten amendments to the Constitution, called the Bill of Rights, place restrictions on the power of government and establish specific individual freedoms, such as the right to free speech and assembly. When residents of the nation believe they have been denied any of these rights, they can seek redress in the courts.
The U.S. Constitution established three separate branches of government within the federal system—executive, legislative, and judicial—and granted specific powers to the federal government. These are called express powers. Under the Tenth Amendment, all other powers are retained by the states, including licensure of healthcare professionals such as physical therapists and physical therapist assistants. As a result, both the federal government and the state governments create and enforce laws.
In the states, the division of power mirrors that of the federal government:
There are two major divisions of law: civil and criminal. The purpose of civil law is to make restitution for injury suffered by one or more individuals. Civil law is further divided into contract law and tort law. Contract law is concerned with legally binding agreements between two or more parties. Tort law is concerned with civil wrongs other than contracts, such as assault, battery, and professional negligence.
The purpose of criminal law is to protect society from actions that directly threaten the order of society. Because some crimes are more serious than others and children are considered less responsible for their acts than adults, there are three categories of criminal offenses: misdemeanor, felony, and juvenile.
Criminal law is concerned with harm against society—that is, with action that directly threatens the orderly existence of society. Criminal acts, while causing harm to individuals, are offenses against the state. Thus, in criminal cases the government attorney, on behalf of the people, is the prosecutor. When a guilty verdict is returned, the victim usually does not receive redress (compensation) even though the person who commits the crime is punished in some way, such as being sentenced to jail, fined, or placed on probation. To receive compensation, the victim must bring a civil suit against the accused perpetrator.
|Source: Adapted from Hamilton, 1996.|
|Function||To redress wrongs and injuries suffered by individuals|
|Categories||Contract: Legally binding agreement between two or more parties
Tort: Any civil wrong other than breach of contract (assault, battery, slander, invasion of privacy, false imprisonment, professional negligence)
|Proof||By a preponderance of the evidence; adjudicated by a judge or jury; a jury decision need not be unanimous|
|Function||To protect society from actions which directly threaten its orderly existence. Criminal acts, while aimed at individuals, are offenses against the state, thus perpetrators are punished by the state (imprisoned, fined, performance of hours of work); victims usually are not compensated but may initiate civil action against perpetrators to recover monetary damages for injury or loss.|
|Categories||Misdemeanor: Lesser offenses (violations of physical therapy practice act, vehicle code)
Felony: Most serious offenses (murder, rape, burglary, grand theft)
Juvenile: Crimes committed by minors (age varies with states and crimes).
|Proof||Beyond a reasonable doubt; jury decision must be unanimous|
Historically, healthcare regulation has been the province of the states, but in recent years the federal government has become increasingly involved. Of particular interest to the practice of physical therapy are four acts of Congress, namely, the Social Security Act of 1935, with the Amendments of 1965, establishing Medicare and Medicaid and the Amendments of 1997 and 2009, establishing and expanding the State Children’s Health Insurance Program (SCHIP or CHIP); the Americans with Disabilities Act of 1995; the Health Insurance Portability and Accountability Act of 1996; and the Patient Protection and Affordable Care Act of 2010.
For more detailed information about Medicare, Medicaid, and CHIP, visit the Centers for Medicare and Medicaid Services website at cms.hhs.gov.
The Americans with Disabilities Act (ADA) of 1990 is a broad-reaching civil rights statute. Amended in 2008 to broaden protections for disabled workers, it protects the rights of people with a variety of ailments, including persons infected with human immunodeficiency virus (HIV) and those with respiratory and musculoskeletal disorders. Its provisions include measures of special interest to physical therapists, such as access to public buildings, equal protection of disabled persons, and nondiscrimination in employment. For detailed information about the act and its provisions, visit ada.gov.
The Health Insurance Portability and Accountability Act (HIPAA) of 1996 limits the extent to which health insurance plans may exclude care for pre-existing conditions and creates special programs to control fraud and abuse within the healthcare system. The most well-know provision of the Act is its standards regarding the electronic exchange of sensitive, private health information. Known as privacy standards, these rules (1) require the consent of clients to use and disclose protected health information, (2) grant clients the right to inspect and copy their medical records, and (3) give clients the right to amend or correct errors. Privacy standards require all hospitals and healthcare agencies to have specific policies and procedures in place to ensure compliance with the rules. For detailed information, visit cms.hhs.gov/hippaGenInfo.
The Patient Protection and Affordable Care Act (PPACA) of 2010 initiated a series of healthcare reforms to give Americans new rights and benefits by “helping more children get health coverage, ending lifetime and most annual limits on care, allowing young adults under 26 to stay on their parents’ health insurance, and giving patients access to recommended preventive services without cost” (HealthCare.gov, 2011).
Other new benefits include 50% discounts on brand-name drugs for seniors in the Medicare “donut hole” and tax credits for small businesses that provide insurance to employees. Each year until 2018, more rights, protections, and benefits will be instituted. These benefits will be paid for by an individual mandate requiring individuals not covered by Medicaid, Medicare, or other government program to maintain insurance or pay a penalty, unless they are a member of a recognized religious sect (HealthCare.gov, 2011). A detailed discussion of this act can be found at healthcare.gov/law/introduction/.
All fifty states and jurisdictions of the United States have Physical Therapy Practice Acts (PTPA). Typically, these acts create an administrative body within the state to define the scope and regulate the practice of physical therapy. The administrative body, called a Board, writes rules and regulations that give detailed requirements for educational institutions and practitioners regarding the scope of practice, licensure, competency, disciplinary sanctions, and supervision of physical therapist assistants and aides.
The goal of state physical therapy practice acts is to protect the public by setting standards for education and practice. It is the responsibility of practitioners to know and abide by the provisions of these acts and abide by the rules and regulations of the state in which they are licensed.
It is a criminal offense to violate provisions of a state physical therapy practice act. As an extension of the act’s purpose, the physical therapy board makes rules and regulates such issues as licensure and scope of practice. When individuals or agencies believe a PT or PTA has violated a provision of the PTPA, they may complain to the administrative board. The board investigates the allegations, and if it finds evidence to support the complaint, state attorneys file a complaint against the licensee.
Because a state license cannot be taken away without due process, licensees have the right to a public hearing before the board, to be represented by an attorney, and to present witnesses on their own behalf. Following such a hearing, the board (1) takes no action, (2) reprimands the licensee, (3) suspends or revokes the person’s license, or (4) places the licensee on probation.
Although PTPAs vary from state to state, they contain similar grounds for complaints, including obtaining a license by fraud, practicing in a grossly incompetent or negligent manner, diverting controlled substances for personal use, and being convicted of a felony. It is the responsibility of license holders to know, understand, and obey the rules and regulations of the state in which they are licensed to practice. This information is readily available via the Internet.
In 1953, California passed the Physical Therapy Practice Act (PTPA) and the Physical Therapy Board of California administers and enforces the act. It is responsible to the citizens of the state to maintain the standards set forth in the act. Fortunately, the current laws, rules, and regulations are available to everyone online on the Department of Consumer Affairs State, Physical Therapy Board of California website at ptbc.ca.gov.
All fifty states and the District of Columbia, Puerto Rico, and Virgin Islands belong to the Federation of State Boards of Physical Therapy (FSBPT). This organization develops and administers the National Physical Therapy Examination (NPTE) for both physical therapists and physical therapist assistants. These examinations assess the basic entry-level competence for first-time licensure or registration of a PT or PTA within the fifty-three jurisdictions.
In addition to the NPTE, the organization developed a Model Practice Act for Physical Therapy for states and other jurisdictions to use to review and update their practice acts, rules, and regulations. They also developed a Continuing Competence Initiative for licensing boards to use to evaluate the continuing competence of licensees as they renew their license or certification and a Coursework Tool for licensing boards and credentialing agencies to use to evaluate foreign educational programs to see if they are substantially equivalent to United States accredited programs (FSBPT, 2011). For more information about this important organization, visit fsbpt.org.
Civil law is concerned with harm against individuals, including breaches of contracts and torts. Its purpose is to make right the wrongs and injuries suffered by individuals, usually by assigning monetary compensation.
A contract is a legally binding agreement between two or more parties. Breaking such an agreement—such as exists between a healthcare agency and physical therapist—is called a breach of contract. Both parties to a contract must do exactly what they agreed to do or they risk being sued. For that reason, it is vital that each party clearly understand all the terms of an agreement.
A tort is any civil wrong other than a contract. Examples of intentional torts are battery, assault, false imprisonment, and defamation of character. Examples of unintentional torts are ordinary negligence and professional negligence (malpractice).
Assault is doing or saying anything that makes people fear they will be touched without their consent. The key element of assault is fear of being touched (for example, saying to a client, “If you don’t let me give you this injection, I’ll put you in restraints and give it to you anyway.”).
Battery is touching a person without consent, whether or not the person is harmed. For battery to occur, unapproved touching must take place. The key element of battery is lack of consent. Therefore, if a man bares his arm for an injection, he cannot later charge battery, saying he did not give consent. If, however, he agreed to the injection because of a threat, the touching would be deemed battery, even if he benefited from the injection and it was properly prescribed.
Except in rare circumstances, clients have the right to refuse treatment. Other examples of assault and battery are:
False imprisonment is confining people against their will by physical or verbal means. Some examples of false imprisonment are:
Obviously, restraining clients with leather straps or locking them in a room is false imprisonment. However, removing their clothing to prevent them from leaving or threatening them if they try to leave are also acts of false imprisonment. If, for safety, clients need to be restrained, physical therapy providers should try to gain the person’s cooperation. If this fails, a legal representative of the client must give permission. If these options are not available, therapists should document the need for restraints, consult with the physician, and follow agency policy.
Defamation of character is communication that is untrue and injures the good name or reputation of another or in any way brings that person into disrepute. This includes clients as well as other healthcare professionals. When the communication is oral, it is called slander; when it is written, it is called libel. Prudent healthcare professionals: (1) record only objective data about clients, such as data relate to treatment plans, and (2) follow agency policies and approved channels when the conduct of a colleague endangers client safety.
Sandra Gossip, PT and her neighbor were chatting about the lamentable number of teen pregnancies at the local high school. Before she realized what she was saying, Sandra told her neighbor about the daughter of one of her clients. The girl had traveled out of state to obtain an abortion and had serious post-operative complications. The neighbor told Sandra she heard about a girl named Martha who had a similar experience. Suddenly, Sandra realized she had violated a core value of the code of ethics by disclosing confidential client information without authorization.
Sandra had violated principle 2E in the Code of Ethics for the Physical Therapist, stating, “Physical therapists shall protect confidential patient/client information and may disclose confidential information to appropriate authorities only when allowed or as required by law.”
Not only had Sandra violated a principle of the physical therapist Code of Ethics by disclosing confidential information, if the matter were to become known to her client, a legal suit of slander could be charged against Sandra.
Sandra felt guilty and fearful of the consequences of her actions. She went to see her neighbor and told her she had made a serious error in talking about a client’s daughter and had learned a bitter lesson. She would never again reveal client information to anyone. Fortunately, the neighbor said she had forgotten all about their conversation, however, she admired Sandra’s desire to abide by the ethical code of her profession.
Ordinary negligence is failure to act as an ordinary, reasonable person, resulting in injury or damage to people and/or property. When negligence is alleged, the conduct of the accused is measured by what a “reasonable, prudent individual would have done in the same or similar circumstances.” This provision seeks to ensure that an objective standard is used to determine if negligence occurred. When individuals sustain injuries or suffer damages from some unfortunate event, they may seek compensation (usually money) from the one they believe is responsible. To win such a suit, four elements must be proven:
For example, a patient slipped on the wet floor in the hall of the medical clinic and fractures his hip. He sued the clinic to recover medical costs. To win his suit, the man must prove: (1) the clinic had a duty to protect its patients from slippery, dangerous walkways, (2) the floor was wet and slippery, (3) the condition of the floor was the cause of the fall, and (4) actual damages were sustained by the fall.
Professional negligence (malpractice) is the improper discharge of professional duties or failure to meet standards of care resulting in harm to another person. Four important principles affect malpractice actions: individual responsibility, respondeat superior, res ipso loquitor, and standard of care.
Usually, plaintiffs must prove every element of a case against defendants. Until they do, the court presumes that the defendants met the applicable standard of care. However, when the court applies the res ipso loquitor rule, defendants must prove they were not negligent. Plaintiffs can ask the court to invoke the res ipso loquitor rule if three elements are present: (1) the act that caused the injury was in the exclusive control of the defendant; (2) the injury would not have happened in the absence of negligence by the defendant; and (3) no negligence on the part of the plaintiff contributed to the injury (Fremgen BF, 2011).
John Whirlwind, PT, helped Ms. Fairchild get out of bed to walk for the first time after knee surgery. Just as she stood by her bed, the patient in the other bed asked John to help her get a glass of water. John left Ms. Fairchild alone and went across the room to the other patient. Ms. Fairchild crashed to the floor, suffering serious injury.
She sued John for negligence on the basis of res ipso loquitor. All three necessary legal elements were present: (1) the act that caused the injury was in the exclusive control of John Whirlwind, the defendant, (2) the injury would not have happened in the absence of negligence by John, a PT, and (3) there was no negligence on the part of the Ms. Fairchild, the plaintiff, that contributed to the injury. She won the case and John was held liable for her injury.
Because today’s healthcare consumers are more involved in their personal care, more likely to question the quality of medical care, and more apt to take legal action against providers, physical therapists must guard against such action. Here are some suggested actions to prevent malpractice claims:
Professional liability insurance shifts the cost of a suit and its settlement from a person to an insurance company. Such insurance covers acts committed by an individual when he or she is functioning in a professional capacity.
Types of Coverage
No policy is limitless. Some important limitations are:
Duration of Coverage
Liability insurance policies are contracts that are renewed or canceled each year. The policy usually states how it is to be canceled and how many days notice must be given.
Employer and Individual Policies
Employer policies cover physical therapists only while they are on the job working for that employer within the scope of the employer’s job description. Individual policies give named holders more power to control decisions than if they are insured only under the policy of the employer.
Many policies exclude coverage of criminal acts, such as intentional torts (assault, battery, false imprisonment, etc.) and disciplinary actions brought by licensing boards against physical therapists and physical therapist assistants.
Right to Decide about Settlements
Physical therapists and physical therapist assistants need to know if an insurance policy gives them the right to decide about the settlement of a case or if the insurance company has that right. This is an important issue because settlements become matters of public record and may adversely affect future opportunities.
Scope of Practice
Physical therapists in independent practice need to know if an insurance policy covers them as independent practitioners or if they are only covered when they are employed by a healthcare agency.
A liability insurance policy is a legal contract between an insurance company and a policyholder. False information on the application may void the policy. Liability insurance does not cover acts outside the scope of practice of licensure or intentional torts such as assault, battery, false imprisonment, and defamation of character.
Source: Adapted from Hamilton, 1996.
If you are served with a summons and complaint, you will need to act right away. If you do nothing—fail to answer the complaint—a default judgment could result. Here are some suggestions for what to do and what not to do when served.
Do (if personally insured):
Do (if not personally insured):
Do not (whether you are insured or not):
Jill Turner, PTA, has worked in a busy PT healthcare agency for several years. One day, as she walked to her car, a stranger stepped up to her and asked if she was Jill Turner. When she said yes, the man handed her a summons and complaint. Jill was stunned and confused. She opened the envelope and read the enclosed documents. She did not recognize the name of the person who was bringing the “complaint”; neither did she remember the described incident. She didn’t know what to do. Jill had never purchased professional liability insurance for herself, but she was sure the agency had malpractice insurance.
The next morning everyone in the clinic was whispering about the suit, but no one had any information. The PT manager suggested Jill phone the legal department. When she did, the secretary asked Jill to come to the office. When Jill hurried in, she was met by a pleasant young man who introduced himself as an attorney. He explained that a patient had brought charges against everyone in the PT department who had any contact with the client. Jill was one of those people. He told her he would represent the agency and its employees and instructed her not to talk to anyone about the case or sign any written statement without his advice and counsel.
After several months, the attorney informed her that the case had been settled out of court. Jill was enormously relieved, but decided she would purchase her own professional liability insurance so that in the future she would not be solely dependent on an employer’s legal counsel.
Physical therapy provides important healthcare services for individuals of all ages. For that reason, physical therapist and physical therapy assistants must maintain the highest standards of professional conduct. These standards arise from ethical principles, fundamental concepts by which people gauge the rightness or wrongness of behavior, and laws, which flow from ethical principles and are limited to specific situations, codified by detailed language, and formulated by an authority with power to enforce them.
Ethical standards of behavior have been identified by the American Physical Therapy Association and codified into law by in the Physical Therapy Practice Acts of states and other jurisdictions within the United States. Continuing competence in both ethics and jurisprudence is vital for those who provide physical therapy services to individuals throughout the nation.
State licensing authorities (Federation of State Boards of Physical Therapy)
American Physical Therapy Association (APTA). (2010a). Code of ethics. Retrieved July 2011 from: http://www.apta.org
American Physical Therapy Association (APTA). (2010b). Standards of ethical conduct for the physical therapist assistant. Retrieved July 2011 from http://www.apta.org
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Federation of State Boards of Physical Therapy (FSBPT). 2011. Home/About FSBPT/NPTE. Retrieved August 2011 from: http://www.fsbpt.org
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