Ethics and Jurisprudence for California Physical Therapists and Physical Therapist Assistants

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By Persis Mary Hamilton, RN, CNS, MS, EdD

LEARNING OBJECTIVES

Upon completion of this course, you will be able to:

• Discuss ethical and legal concepts important to the profession of physical therapy.
• Articulate the basis and sources of law in the United States.
• Distinguish between civil and criminal law as they apply to physical therapy.
• Review the rules and regulations of the California Physical Therapy Practice Act.
• Interpret the American Physical Therapy Association’s Code of Ethics and Guide for Professional Conduct of Physical Therapists.
• Explain the American Physical Therapy Association’s Guide for Conduct of Physical Therapist Assistants and Standards of Ethical Conduct for the Physical Therapist Assistant.
• Apply ethical and legal standards to the practice of physical therapy.

ETHICAL ISSUES

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: A Branch of Philosophy

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.

• A teleological (consequential, utilitarian, situational) perspective affirms that the rightness or wrongness of an act is determined by the end results of an action. The term comes from the Greek teleos, meaning “end.” If the end result harms others, the act is considered wrong or bad. If the end result benefits others, the act is considered good or right. The central issue of this perspective is the principle of the “greatest good.” The utilitarian teachings of John Stuart Mill and the situation ethics teachings of Joseph Fletcher maintain that end results and circumstances are essential factors in considering the rightness or wrongness of any human behavior (Hamilton, 1996).
  
  Teleological theories foster morality by developing the capacity of humans to make choices. These theories reject fixed moral rules of conduct such as the biblical command “Thou shalt not kill” (Exodus 20:13). For example, a man is suffering with intractable pain caused by an incurable disorder. He begs his physician to perform a surgical procedure that will relieve his suffering but might hasten his death. According to teleological perspective, the physician should perform the surgery because the end result (relieving pain) is a greater good than keeping the man alive with intractable pain.
• The deontological (nonconsequentialist) perspective fosters morality by teaching humans to accept and obey fixed laws. The term comes from the Greek deontos, meaning “duty to obey.” Immanuel Kant is the theorist most often identified with deontological ethics. He maintained that certain acts are inherently right or wrong, regardless of the situation or the end results. In deontological ethics, there are no exceptions or mitigating circumstances. According to this perspective, preserving the life of the man with intractable pain is a greater good than relieving his pain and hastening his death. The physician’s duty is to obey the commandment “Thou shalt not kill” regardless of the situation or end results. Thus, the deontological perspective simplifies ethical decision-making by removing the issue of mitigating circumstances.

Ethical Concepts

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

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

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:

• Recognize and respect individual and cultural differences
• Honor the lifestyle, personhood, and beliefs of clients
• Demonstrate concern for the physical, psychological, and socioeconomic well-being of clients
• Refrain from abuse, harassment, or discrimination of others
• Strive to sustain human life and dignity while relieving suffering and promoting maximum physical and emotional well-being

BENEFICENCE

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:

• Attend to the needs of clients, thoughtfully assessing their mobility level
• Provide timely, appropriate interventions to advance the treatment plan
• Accurately evaluate the effectiveness of an intervention
• Communicate important observations to other members of the healthcare team
• Achieve and maintain professional competence

AUTONOMY

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:

• Inform clients about available options regarding their treatment
• Make sure clients fully understand the actions and risks of treatment options
• Respect and accept decisions clients make about their own care or the care of another person for whom they are legally responsible
• Implement and evaluate interventions chosen by clients
• Respect and hold in confidence personal information of clients, divulging it only when they or their legal guardian give permission

HONESTY (TRUTHFULNESS)

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:

• Provide factual, scientifically based, and relevant information to clients about their care, including its benefits and risks
• Accurately report and record critical data, regardless of personal consequences
• Place the welfare of clients above personal or professional gain
• Charge reasonable fees, and then only for services actually performed
• Keep promises and abide by contracts
• Represent professional credentials and achievements truthfully

JUSTICE

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:

• Assess needs for physical therapy and interventions with equal diligence
• Attend to the needs of clients, without prejudice according to their personality, disability, race, religion, gender, age, or lifestyle
• Evaluate and communicate information about treatment plans without bias
• Deal fairly and equally with professional supervisors, colleagues, and subordinates

Roles, Core Values, and Obligations

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:

• Management of patients/clients
• Consultation
• Education
• Research
• Administration

The seven core values that physical therapists exemplify are:

• Accountability
• Altruism
• Compassion/caring
• Excellence
• Integrity
• Professional duty
• Social responsibility

The three means to meet an obligation to clients to facilitate greater independence, health, wellness, and enhanced quality of life are:

• Empowerment
• Education
• Enabling

Ethical Dilemmas

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:

1. Gather relevant facts about the client’s age, diagnosis, advanced health care directive, and applicable laws.
2. Identify and clearly state proposed actions together with the ethical principles represented by each proposed action.
3. Determine who can make the decision and assist the person or persons to make it.
4. Provide emotional support for everyone involved in resolving the dilemma.

Codes and Standards of Ethical Conduct

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 http://www.apta.org/Ethics/Core/.

Guides for Conduct

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 http://www.apta.org/Ethics/Core/.

LEGAL AND PROFESSIONAL RESPONSIBILITY

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.

Basis, Sources, and Types of Law (Jurisprudence)

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.

SOURCES OF LAW

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:

• The legislative branch makes laws on behalf of the people.
• The judicial branch interprets these laws and adjudicates disputes, fulfilling its purpose to administer justice without partiality.
• The executive branch administers and enforces the laws, using the police power of the state.

TYPES OF LAW: CRIMINAL AND CIVIL

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.

TYPES OF LAW

Source: Adapted from Hamilton, 1996.
Civil Law
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
Criminal Law
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

Federal Statutory Issues in Physical Therapy Practice

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.

SOCIAL SECURITY ACT AMENDMENTS

• Medicare is a social insurance program administered by the United States government providing health insurance coverage to people 65 years of age or older and those who are disabled and meet other criteria. Medicare has two parts:
  • Part A, hospital insurance, helps pay for inpatient hospital care and some follow-up care such as home health services and hospice care.
  • Part B, medical insurance, helps pay for services by physicians, nurse practitioners, and physical therapists as well as laboratory tests, diagnostic x-ray and therapy, preventive screening tests, surgical supplies, casts, splints, kidney dialysis, diabetic supplies, and more.
• Medicaid is a joint federal and state program that helps pay medical costs for people with low incomes and limited resources. State participation is voluntary, but since 1982 all states have taken part, though benefits vary from state to state. Each administers its own program and may use its own unique name, such as MediCal in California, MassHealth in Massachusetts, and TennCare in Tennessee. Providers of health services, including physical therapy, must be authorized by the designated state government agency.
• State Children’s Health Insurance Program (SCHIP or CHIP) is a program administered by the United States Department of Health and Human Services that provides matching funds to states for health insurance to families with children. The program is designed to cover uninsured children in families with incomes that are modest but too high to qualify for Medicaid. In 2009 it was expanded to add 4 million children, pregnant women, and first-time legal immigrants without a waiting period.

For more detailed information about Medicare, Medicaid, and CHIP, go to the Centers for Medicare and Medicaid Services website at http://www.cms.hhs.gov.

AMERICANS WITH DISABILITIES ACT

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, see: http://www.ada.gov.

HEALTH INSURANCE PORTABILILTY AND ACCOUNTABILITY ACT (HIPPA)

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, see: http://www.cms.hhs.gov/hippaGenInfo.

PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA)

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 on the website: http://www.healthcare.gov/law/introduction/.

State Physical Therapy Practice Acts

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.

CALIFORNIA PHYSICAL THERAPY PRACTICE ACT

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 http://www.ptbc.ca.gov/.

FEDERATION OF STATE BOARDS OF PHYSICAL THERAPY

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 http://www.fsbpt.org.

Civil Law and Physical Therapy Practice

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 AND BATTERY

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:

• Forcing a client to submit to treatments for which he has not consented orally, in writing, or by implication.
• Moving a protesting client from one place to another.
• Forcing a client to get out of bed to walk.
• In some states, performing blood alcohol tests or other tests without consent.

FALSE IMPRISONMENT

False imprisonment is confining people against their will by physical or verbal means. Some examples of false imprisonment are:

• Restraining a client without written consent by an authorized person.
• Restraining a mentally ill client who is not a danger to self or others.
• Detaining an unwilling client in the hospital if the client insists on leaving.
• Detaining a person who is medically ready for discharge for an unreasonable period of time.

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

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.

NEGLIGENCE

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:

• There must be a duty to avoid unreasonable and foreseeable risk of harm to another.
• There must be a breach of that duty or a failure to uphold that duty.
• The breach must be the probable cause of injury to the victim.
• Actual damages, recognized by law, must be suffered. (Creighton, 2004)

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.

• Individual responsibility affirms the principle that every person is responsible for his or her own actions. Even when several other people are involved in a situation, it is difficult for any one person to remain free of all responsibility and shift all responsibility to others.
• Respondeat superior literally means “let the master speak.” This doctrine holds employers indirectly and vicariously liable for the negligence of their employees who are acting within the scope of their employment at the time a negligent act occurs. This doctrine allows an injured party to sue both the employee and employer, to sue only the employee, or to sue only the employer for alleged injuries. Although each person is responsible for her or his own acts, professionals with oversight duties are held responsibilities for the actions of those they supervise. For example, a physical therapist (PT) is held accountable for the actions of physical therapist assistants (PTA) or physical therapy aides he or she supervises.
• Res ipso loquitor literally means “the thing speaks for itself.” This is a rule of evidence designed to equalize the positions of plaintiffs and defendants in the situation when plaintiffs (those injured) may be at a disadvantage. The rule allows a plaintiff to prove negligence by circumstantial evidence when the defendant has the primary, and sometimes only, knowledge of what happened to cause an injury.

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).

• Standard of care refers to “what any reasonable, prudent professional physical therapist or physical therapist assistant would have done in the same or similar circumstance in the same or similar community” (Lewis & Tamparo, 2007). All elements and principles that apply to ordinary negligence also apply to professional negligence, with the exception that the responsibility of the professional is greater than that of a nonprofessional. Also, “community” refers to national standards, not local ones. Therefore, the standard of care by which actions of a professional PT and PTA are measured is that of the national credentialing organization, the American Physical Therapy Association.

Preventing Malpractice Claims

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:

• Delegate duties cautiously. PTs are responsible for subordinates, equipment, and supplies. When they assign a task to a PT assistant or aide, physical therapists should make sure the task is not beyond the ability or scope of practice of the subordinate because, if an error occurs, the PT is responsible. When a subordinate is incompetent, physical therapists should follow performance evaluation procedures of the agency.
• Develop self-awareness. PTs need to recognize their strengths and weaknesses and use continuing education to expand their knowledge and skill. They should not be afraid to admit lack of knowledge in some area but should refuse assignments where they lack critical skills.
• Follow agency policies and procedures. These documents are designed to prevent errors, injuries, and accidents. When an error occurs and legal action results, the court will want to know if the practitioner followed accepted policies and procedures.
• Document actions accurately. Legally, if an action is not documented, it did not happen. Notes should be written accurately, objectively, and without subjective judgments that could be construed as libelous.
• Write detailed incident reports. However unpleasant the task, practitioners need to describe in detail all errors, injuries, and accidents. Because long periods of time may elapse between an incident and court action, an incident report may be the only detailed account of what happened.
• Recognize suit-prone clients and intervene. When people feel frightened and powerless, they may become critical and demanding. By reacting defensively or avoiding such clients, PTs may confirm the fear of clients and foster their anger. When PTs listen actively, discuss treatment plans openly, and involve clients in decision- making, they foster trust and respect. As a consequence, clients will be less inclined to pursue legal action.
• Prevent accidents. Be alert for hazards that cause injury. Spilled water, broken equipment, protruding apparatus, exposed electrical wires, and cluttered hallways are accidents waiting to happen. When they do, people are more likely to suffer injuries and healthcare professionals will be held responsible.
• Become informed consumers of professional liability insurance. The likelihood of being sued is real. Lawsuits are costly and awards may be in the millions of dollars. Even when you are vindicated, the price of defending yourself may be immense. Given these realities, PTs and PTAs need to become informed consumers of liability insurance (see box).

Defending Yourself

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):

• Immediately telephone the company that provides your liability insurance. The company spokesperson will tell you how to proceed. If you do not contact the insurance company within the time specified by your policy, the insurance company may refuse to cover you.
• Fill out the informational forms sent by your insurer as completely as possible.
• Follow all instructions the insurance carrier gives, such as telephoning a specific attorney in your area. Send lawsuit papers by certified mail, return receipt requested. Save the receipt.
• Create your own legal file of all documents, receipts, and correspondence about the case.
• Contact the legal department of the institution where the incident occurred.
• Work closely with the attorney the insurer assigns to you.
• Take steps to protect your personal property; many states have homestead laws that permit you to protect property such as your home from judgments against you.

Do (if not personally insured):

• Contact the legal department of the institution where the incident occurred. Notify them that you have been served with a summons and complaint.
• Work closely with the attorney assigned to your case by the institution’s insurance company.
• If it seems that your interests are not being protected, you may decide to retain your own legal counsel. Look for an attorney who is experienced in medical malpractice.

Do not (whether you are insured or not):

• Talk to anyone about the incident except the insurance carrier and your attorney, including personal and professional acquaintances and news media.
• Sign any papers or give any written statements to plaintiffs or their attorneys without legal counsel.
• Even think about trying to defend yourself against a lawsuit. Your opposition will have experienced attorneys who would make short work of your amateur defense.

CONCLUSION

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.