Legal Issues in Physical Therapy June 1, 2006 UI Office of General Counsel Maria Lukas, Associate Counsel and Jennifer Smith, Assistant Counsel
Judicial System • Sources: • Constitutions • Statutes • Regulations • Cases/Judicial Opinions (“Common Law”) • Professional Code
Roles of Judges and Juries • Substance • Procedure
Legal Relationship with Patient • Establishment • Formal • Informal/Social
Legal Relationship with Patient • Termination: • Express • Implicit • Neglect • Abandonment • Malpractice
Legal Relationship with Patient • Good Samaritan Laws • Iowa Code § 613.17 • No duty to render assistance • Immunity from liability unless actions are reckless
Torts - Malpractice • Malpractice • Duty • Breach • Causation • Damages • Compensatory • Punitive
Malpractice • Burden of Proof • Battle of Experts • Standard of Care • Local • National
Malpractice • Defenses: • None committed • Chose acceptable alternative treatment • Clinical innovation • Contributory fault/Assumption of risk • Iowa: Comparative fault • Waiver/Release
Torts • Vicarious Liability • Respondeat Superior
Torts • Statute of Limitations • Iowa Code §614.1 • Medical Malpractice • Iowa: • 2 years from occurrence or discovery • Not longer than 6 years • Ordinary Negligence
Informed Consent • Functions of Informed Consent • Elements: • Knowingly, willingly, voluntarily
Informed Consent • Standard of disclosure: • Professional (malpractice) • Reasonable patient/Material risk • For failure to obtain claim, plaintiff must show: • Material risk unknown to patient • Failure to disclose risk • If disclosed, reasonable person would have chosen other option • Injury • Particular patient
Informed Consent • What must be disclosed? • Diagnosis • Nature and purpose of treatment • Risks and outcomes • Prognosis if accepted/declined • Alternatives • Iowa • §147.137--Presumption of informed consent
Informed Consent • Exceptions: • Emergencies • Common Knowledge • Patient Knowledge
Informed Consent • Informed consent is a process, not a form!! • Practice Suggestions: • Use form as starting point for conversation, not as a substitute. • Don’t assume patient read or understood form.
Contracts • General Issues • Promise enforceable as legally binding obligation • Written v. oral • Capacity • Legality • Meeting of the Minds
Contracts • Employment • Employment At Will v. Employment Contracts • Covenants not to compete • Geography • Practice • Time
Contracts • Remedies for breach • Money • Specific Performance
Confidentiality • Duty to maintain confidentiality • Provider-patient relationship must be formed before duty arises • Duty to breach confidentiality • Abuse/Neglect • Child • Elder • Disabled person • Trauma likely resulting from crimes
Risk Management--Insurance • General Types • Risk Pooling • Risk Transfer • Professional Liability • Indemnification--hold harmless • Coverage • Not malicious intentional misconduct • Occurrence vs. claims made (possible need for “tail”)
Understand the legal risks--know the law Emphasize good hiring decisions--interview wisely (see attached) Communicate--It’s easier to deal with employees Give timely and meaningful performance reviews Document--Be clear Discipline effectively and appropriately Prohibit sexual harassment; accommodate reasonably Terminate prudently Beware of post-termination problems Be fair Employment Issues: Ten Tips to Stay out of Court
Review • True or false: • Over a five-year period, an employer promoted only male employees. The employer could be a target for a sex discrimination suit.
Review • True or false: • An employer may screen out an applicant for a position because she is fifty-nine years old and not a recent college graduate.
Review • True or false: • As a manager, you could be personally liable if you are aware of sexual harassment in the workplace and fail to do anything about it.
Review • True or false: • As an employee, you may review your personnel file on request.
Review • True or false: • Policies in employee handbooks may create employment rights for employees.
Review • True or false: • A recovering alcoholic is considered disabled and cannot be disciplined if found to be under the influence of alcohol on the job.
Review • True or false: • Documentation of performance problems is not necessary for termination of an employee.
Review • True or false: • You have given an honest but negative job reference to a prospective employer about a former employee. You may be liable for defamation.
Review • True or false: • The laws prohibiting sexual harassment in the workplace only cover harassment between men and women.
Review • True or false: • Employers may ask job applicants whether they have any physical or mental disabilities that would affect their ability to perform the job.
Review • True or false: • An employer may ask a job applicant to take a drug test.
Review • True or false: • Employers may not be held liable for negligent hiring if they perform a background check on a prospective employee.
Review • True or false: • Employers will not be held liable for sexual harassment if they have an anti-harassment policy.