Legal considerations

Ron Scott

Introduction

Rehabilitation professionals who treat geriatric patients face potential malpractice liability exposure for their conduct, and for that of their extenders and support professionals acting within the scope of their employment. According to the CNA’s Physical Therapy Liability monograph, malpractice claims against physical therapists in ‘aging services facilities’ accounted for the third highest paid indemnity, averaging $88 537 per incident (CNA, 2012: 12).

The United States of America is the most highly litigious society in human history. In 2012, more than 15 million lawsuits were filed in state courts alone – one for every 12 American adults (Legal Reform Now!, 2012). Although only a small proportion of these legal cases involved healthcare malpractice, the risk of liability exposure in healthcare practice generally, and in geriatric rehabilitation practice in particular, is significant. Geriatric rehabilitation professionals must strike a careful balance between providing optimal quality patient care (a prospect made more difficult in the current cost containment-focused fiscal austerity and managed care environments) and minimizing their own healthcare malpractice liability risk exposure incident to practice (Scott, 2009).

Medical malpractice lawsuits have attracted significant public and legislative attention, in part because of rising insurance and healthcare costs. The average payment for malpractice claims for physicians and other licensed providers was $250 000 in 2011, with only one in five cases brought resulting in a settlement or judgment against defendant–healthcare professionals (Stobbe, 2011).

In geriatric rehabilitation, professional practice that complies with legal and ethical standards includes knowledge by health professionals of, and compliance with, such laws as the Patient Self-Determination Act, state-specific statutory reporting requirements for suspected elder abuse, and a seeming myriad of other important mandates. Because nearly two-thirds of the population between the ages of 55 and 64 and 17% of those aged 65 or over are employed, rehabilitation healthcare professionals must be cognizant of laws protective of the employment rights of their geriatric clients, including the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Family and Medical Leave Act (US Bureau of the Census, 2012).

Healthcare malpractice

Professional negligence

Healthcare malpractice is defined as physical and/or mental injury incurred by a patient in the course of healthcare examination, intervention or consultation, coupled with a recognized legal basis for imposing civil liability on a healthcare provider for the harm suffered by the patient. Traditionally, the only basis for imposing healthcare malpractice liability was professional negligence, or substandard care.

In a professional negligence lawsuit brought by a patient against a healthcare professional, the patient must normally prove four core elements by a preponderance, or greater weight, of evidence. These four elements are:

• that the defendant–healthcare professional owed a special duty of care to the plaintiff–patient;

• that, in the course of healthcare delivery, the healthcare professional breached, or violated, the high legal duty owed, by failing to meet at least minimally acceptable care standards;

• that the breach of duty by the healthcare provider caused injury to the patient; and

• that the patient sustained the kind of injuries for which a judge or jury may legally order compensation in the form of a money damages judgment, designed to make the patient as ‘whole’ as possible.

In addition to being legally responsible for his or her own conduct, a healthcare professional providing geriatric rehabilitation services is also normally vicariously, or indirectly, responsible for the conduct of extenders and supportive personnel acting under the supervision of the licensed or certified primary professional. Healthcare professionals must clearly communicate orders to extenders and support personnel to whom care tasks are delegated, and establish competency standards and actually assess the competency of supportive personnel on an ongoing basis.

Additional legal bases for malpractice

Other legal bases for imposing healthcare malpractice liability, in addition to professional negligence, include:

• intentional care-related misconduct, including battery (injurious or otherwise offensive physical contact with a patient) and sexual battery (physical contact intended to arouse or gratify a healthcare provider’s illicit sexual desires);

• strict product liability, for patient injury caused by dangerously defective treatment-related products or equipment, such as durable medical equipment supplied to a geriatric client; and

• breach of contract liability, for failure to fulfill a therapeutic promise made to a patient.

Geriatric rehabilitation professionals and clinic and agency managers are advised to develop, educate staff about and enforce formal risk management policies and procedures designed to minimize healthcare malpractice liability exposure of professional employees and organizations. Legal counsel should be consulted proactively for advice on developing and implementing such initiatives (Scott, 2009).

Consider the following hypothetical example:

A home health physical therapist is charged by a geriatric patient with sexual battery. In this case, involving myofascial release, there was, in fact, no therapist misconduct; the patient was simply confused about the nature of the therapeutic touch involved in the procedure and honestly believed it to be improperly applied by the therapist to her torso.

What risk management measures should the physical therapist and agency have undertaken to prevent this kind of allegation?

The agency and its professional and support staff should have developed and practiced under a professional–patient relations policy that requires: