Course Price  $40.00 Contact Hours  4 Instructions  Study the course, then take the test. You can also print the course and test questions and return later to take the test.

Quicklinks Print this course Take the test How to take a course

Georgia: Ethics and Jurisprudence

Physical Therapists and Physical Therapy Assistants

Persis Mary Hamilton, RN, CNS, MS, EdD

This course meets the Georgia requirement on ethics and jurisprudence for Georgia PTs and PTAs and is approved by the Physical Therapy Association of Georgia.

ETHICAL CONCERNS

Ethics, A Branch of Philosophy

Many folks roll their eyes and change the subject when they hear the word ethics, viewing it as too controversial or too complex for discussion. Nonetheless, ethics is a significant concern of thinking, caring people, especially healthcare providers such as physical therapists (PTs) and physical therapy 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.

A teleological (consequential, utilitarian, situational) perspective affirms that the rightness or wrongness of an act is determined by the end results of the action. The term comes from the Greek teleos, meaning "end." If the end result harms others, the act is considered wrong or bad, even if it is legal. If the end result benefits others, the act is considered right or good, even if it is illegal. The central issue of this perspective is the principle of the "greatest good." The utilitarian teachings of John Stuart Mill and the situation ethics of Joseph Fletcher maintain that end results and circumstances are essential factors in considering the rightness or wrongness of human behavior (Hamilton, 1996).

Teleological theories foster morality by developing the capacity of humans to make choices based on the situation. These theories reject fixed moral codes 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 give him enough pain medicine to lessen his suffering, even though the dosage may hasten his death. According to teleological perspective, the physician should provide the medicine because the end result (relieving pain) is a greater good than keeping the man alive for a longer period of time but suffering intractable pain.

The deontological (nonconsequentialist, absolute) 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 command "Thou shalt not kill," regardless of the situation or end result. Thus, the deontological perspective simplifies ethical decision making by removing the issue of mitigating circumstances.

Concepts and Codes of Ethics

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 necessary 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.

In recent years, some politicians have substituted the word values for morality; however, the word values has a much broader meaning. Values are treasured ideals and attributes, such as creativity, achievement, adventure, power, friendship, and belief systems. Understanding what you value brings purpose and clarity to your life. Socrates acknowledged the importance of this when he famously said "The unexamined life is not worth living." To help people examine their lives and clarify their values, Louis Raths (1979) suggested a seven-step process he called "values clarification," which is shown in Box 1.

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. Typically, belief systems include an ethical code of conduct about how people should relate to the world and its inhabitants.

Religions are schemes of thought and action that usually include a belief system, sacred writings, faith in one or more mystical beings, devotional rituals, and organizational structure. Though some religions are centuries old, with myriad followers, others are relatively recent, with few believers. In the United States, religions receive special protections and benefits, regardless of their historic roots or number of adherents.

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.

Throughout recorded history, leaders of world religions have taught an overarching ethical principle commonly called the Golden Rule. It is expressed in positive terms, "Do unto others as you would they do unto you," or in negative terms, "Do not do unto others as you would not have them do unto you." Some philosophers emphasize certain principles over others. For example, Kant held that duty was the central issue; Mills, the interest of all; Fletcher, love; Thiroux, human dignity; Gilligan, care and justice; and Nodding, care. A single, global principle for exemplary behavior is an attractive approach, but when people face real-life situations, they seek more precise guidance.

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.

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 principle calls for respect for the life, freedom, and privacy of all humans. When applied to practice, respect for human life and dignity means that 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), Frankena (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 to removing harm to promoting and doing 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 that 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 understand the information and make decisions based on it. When applied to practice, autonomy means that 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.
• Hold in confidence personal information of clients, divulging it only when they or their legal guardian give permission.

HONESTY (TRUTHFULNESS, FIDELITY)

Honesty means truthfulness in word and deed. Even when you must convey unwelcome information to clients about their illness or treatment options, as a physical therapist you do so truthfully and with compassion, only withholding information from clients when they 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 that 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, no matter how difficult 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.

Ethical Dilemmas

A dilemma is a perplexing problem that requires a choice between conflicting actions. 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 cure an illness 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 (honoring end results or obeying 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, 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.

To reduce the number and complexity of ethical dilemmas, and in support of the ethical principle of autonomy, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) recommends that all adults discuss their wishes regarding extraordinary treatment measures with their families, sign a legal document called an advance healthcare directive, and appoint someone to make healthcare decisions in their stead if they should become incapacitated (JCAHO, 2003).

Codes of Ethics

Codes of ethics are formal statements that set standards of ethical behavior for a group of people. In fact, one of the hallmarks of a profession is that its members subscribe to a code of ethics. The Code of Ethics of the American Physical Therapy Association (APTA) makes explicit the values and standards of the profession, providing guidance to carry out the professional responsibilities of physical therapists (Box 2).

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 of Law (Jurisprudence) in the United States

Laws flow from ethical principles and is limited to specific situations and codified by detailed language. These rules of conduct are made by an authority with power to enforce them and, as such, 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 were the law of the land and became known as common, 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, 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 that 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 therapy 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. Table 1 summarizes the sources of law in the United States and their functions.

TABLE 1

SOURCES OF LAW IN THE UNITED STATES

CONSTITUTIONAL LAW
Source	U.S. Constitution, the supreme law of the nation
Functions	Establishes executive, legislative, judicial branches of government
Examples	Grants specific powers to federal and state governments Protects specific freedoms of individuals (substantive rights) Protects due process of individuals (procedural rights)
STATUTORY LAW
Source	Laws passed by legislative bodies of federal, state, and local governments
Functions	Protects and provides for the general welfare of society
Examples	Control Substance Act of 1971 created a schedule of controlled substances, ranking them according to their potential for abuse from high (I) to low (V).
ADMINISTRATIVE LAW
Source	Executive power of federal, state, and local government, delegated by the legislative branch
Functions	Carries out special duties of various agencies
Examples	Federal administrative law: National Labor Relations Board makes nationwide rules to regulate collective bargaining in the United States State administrative law: State boards of physical therapy make statewide rules to regulate the practice of physical therapy in the state
COMMON (CASE) LAW
Source	Precedent, custom, tradition, court-made
Functions	Avoids duplication and unnecessary expense of litigating issues many times
Examples	Amendment 14 grants "equal protection of the law," but because of the Plessy v. Fergson, an 1896 decision of the Supreme Court, several states continued to segregate children by race in public schools. In 1954, Brown v. Board of Education decision said, "separation of children in public schools solely on the basis of race deprives children of a minority group equal educational opportunities, even though physical facilities and other tangible factors may be equal".
Source: Adapted from Hamilton, 1996.

FEDERAL STATUTORY ISSUES IN PT PRACTICE

Historically, healthcare regulation has been the province of the states. However, in recent years the federal government has become increasingly involved. Three pieces of federal legislation are of particular concern in the present-day practice of physical therapy—namely, the Social Security Amendments of 1965 that established Medicare and Medicaid; the Americans with Disabilities Act of 1995; and the Health Insurance Portability and Accountability Act of 1996.

Social Security Amendments of 1965

Medicaid is a joint federal and state program that helps pay medical costs for people with low incomes and limited resources. Its benefits vary from state to state. Providers of physical therapy service to Medicaid healthcare recipients must be authorized by an agency of the state government.

Medicare is a federal healthcare plan for people 65 years of age or older, those who are disabled, and those with kidney failure. 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 physician, nurse practitioner, and physical therapy, laboratory tests, diagnostic x-ray and therapy, preventive screening tests, surgical supplies, casts, splints, kidney dialysis, diabetic supplies, and more. Providers of physical therapy services must be authorized by an agency of the federal government (U.S. Department of Health and Human Services, 2005).

Americans with Disabilities Act of 1995

The Americans with Disabilities Act (ADA) is a broad-reaching civil rights statute. 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 many issues of special concern to physical therapists, such as access to public buildings, equal protection of disabled persons, and nondiscrimination in employment.

Heath Insurance Portability and Accountability Act of 1996

The Health Insurance Portability and Accountability Act (HIPAA) limits the extent to which health insurance plans may exclude care for pre-existing conditions. Another important section sets standards regarding the electronic exchange of private and sensitive 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.

STATE STATUTES

All fifty states and jurisdictions of the United States have physical therapy practice acts. 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 therapy assistants and aides. The goal of these 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 physical therapy practice act and rules and regulations in the state in which they are licensed.

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 that contracts, such as assault, battery and 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 than adults, there are three categories of criminal offenses: misdemeanor, felony, and juvenile (Table 2).

TABLE 2

TYPES OF LAW IN THE UNITED STATES

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 (slander, invasion of privacy, assault, battery, false imprisonment, negligence)
Proof	By a preponderance of the evidence; adjudicated by a judge or jury; jury decision need not be unanimous
CRIMINAL LAW
Function	To protect society from actions that directly threaten its orderly existence. Criminal acts, while aimed at individuals, are offenses against the state; perpetrators are punished (fined, imprisoned, perform hours of work); victims usually are not compensated but may initiate civil action against perpetrators to make up for injury or loss
Categories	Felony: most serious offenses (murder, rape, burglary, grand theft) Misdemeanor: lesser offenses (PT practice act, traffic violations) Juvenile: crimes committed by minors (age varies with states and crimes).
Proof	Beyond a reasonable doubt; unanimous jury decision may be required
Source: Adapted from Hamilton, 1996.

CRIMINAL LAW AND PT PRACTICE

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.

The purpose of a state's physical therapy practice act (PTPA) is to protect the public by setting standards of education and practice and it is a criminal offense to violate any of its provisions. As an extension of that purpose, the physical therapy board makes rules and regulates such things 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 board. The board investigates the allegations and, if it finds evidence to support the complaint, state attorneys file a complaint against the licensee. Although PT practice acts 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.

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 will (1) take no action, (2) reprimand the licensee, (3) suspended or revoked the person's license, or (4) place the licensee on probation.

License holders are responsible for knowing and understanding current rules and regulations of their licensing board. Such information is readily available to licensees through the Internet.

GEORGIA PHYSICAL THERAPY PRACTICE ACT

In 1965, Georgia enacted a physical therapy practice act. Since then, it has been revised from time to time. Its current wording is published online at http://www.legis.state.ga.us/legis/.

Likewise, current rules and regulations resulting from that act are published online at http://rules.sos.state.ga.us. This website provides links to the following information:

• Administrative history
• Organization of the board
• Licensure requirements
• Evaluation of examinations: applicants
• Renewal: continuing competence requirements/disciplinary sanctions
• Supervision and direction of a physical therapy assistant
• Procedural rules
• Verification of license and examination scores
• Physical therapy aides: definition and requirements
• Code of ethics

CIVIL LAW AND PT 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—eg, 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 one 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!"

Battery is touching a person without consent, whether or not the person is harmed. For battery to occur, unconsented 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 damaging to a person's reputation, and it includes clients as well as other healthcare professionals. Such statements need not be false or intentionally damaging. When the communication is oral, it is called slander; when it is written, it is called libel. Prudent healthcare professionals record only objective data about clients as they relate to treatment plans and follow agency channels and policies if the conduct of a colleague endangers client safety.

Negligence, Ordinary and Professional

Ordinary Negligence is failure to act as an ordinary, reasonable person, resulting in injury or damage to people and 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 whether 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 that (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 when a negligent acts 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 is held accountable for the actions of PTAs or PT 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) would 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 the 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.

When the court applies the res ipso loquitor rule, the burden of proof for causation shifts from plaintiffs to defendants. Defendants must prove that the injury was caused by something other than their negligence. 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 (Nurse's Handbook, 2000).

• Standard of care refers to "what any reasonable, prudent professional PT or PTA would have done in the same or similar circumstance in the same or similar community." All elements and principles that apply to 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 its providers, physical therapists must guard against such action. Here are some suggested actions:

• Delegate duties cautiously. PTs are responsible for subordinates, equipment, and supplies. When they assign a task that is beyond the ability or scope of practice of a PTA or PT aide and an error occurs, the PT is responsible. When a subordinate is incompetent, PTs should follow accepted performance evaluation procedures of the agency.
• Develop self-awareness. PTs need to recognize their strengths and weaknesses and use continuing education to grow. They should not be afraid to admit lack of knowledge in some area and should refuse assignments where they lack critical skills.
• Follow agency policies and procedures. These documents are designed to prevent errors. If a mistake occurs and legal action results, the courts will want to know if the practitioner followed accepted 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, all errors, injuries, and accidents need to be described in detail. Because long periods of time may elapse between an incident and a 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 client's fears. When PTs listen actively, discuss treatment plans openly, and involve clients in decision making, they foster trust and respect. Thus, clients are 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 suffer injuries and healthcare professionals are held liable.
• 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 should become informed consumers of liability insurance (Box 3).

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.

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.
• 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.

Professional Guides and Standards

In 2001 the American Physical Therapy Association published Guide for Professional Conduct of Physical Therapists (Box 4), Guide for Conduct of Physical Therapist Assistants (Box 5), and Standards of Ethical Conduct for the Physical Therapist Assistant (Box 6). These documents are regularly revised and updated. They are provided here for the convenience of practitioners.

APPLICATION OF THEORY TO PRACTICE

Posted January 6, 2006

Expires January 1, 2009

Copyright © 2006 Wild Iris Medical Education. All rights reserved.

Accreditation   Home
Site Map   Contact   Privacy   Disclaimer

TherapyCEU.com is a division of Wild Iris Medical Education
© 2008 Wild Iris Medical Education, Inc.