Legal Issues in Physical Therapy

1. Legal Issues in Physical Therapy June 1, 2006 UI Office of General Counsel Maria Lukas, Associate Counsel and Jennifer Smith, Assistant Counsel

2. Judicial System • Sources: • Constitutions • Statutes • Regulations • Cases/Judicial Opinions (“Common Law”) • Professional Code

3. Roles of Judges and Juries • Substance • Procedure

4. Legal Relationship with Patient • Establishment • Formal • Informal/Social

5. Legal Relationship with Patient • Termination: • Express • Implicit • Neglect • Abandonment • Malpractice

6. Legal Relationship with Patient • Good Samaritan Laws • Iowa Code § 613.17 • No duty to render assistance • Immunity from liability unless actions are reckless

7. Torts - Malpractice • Malpractice • Duty • Breach • Causation • Damages • Compensatory • Punitive

8. Malpractice • Burden of Proof • Battle of Experts • Standard of Care • Local • National

9. Malpractice • Defenses: • None committed • Chose acceptable alternative treatment • Clinical innovation • Contributory fault/Assumption of risk • Iowa: Comparative fault • Waiver/Release

10. Torts • Vicarious Liability • Respondeat Superior

11. Torts • Statute of Limitations • Iowa Code §614.1 • Medical Malpractice • Iowa: • 2 years from occurrence or discovery • Not longer than 6 years • Ordinary Negligence

12. Informed Consent • Functions of Informed Consent • Elements: • Knowingly, willingly, voluntarily

13. 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

14. 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

15. Informed Consent • Exceptions: • Emergencies • Common Knowledge • Patient Knowledge

16. 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.

17. Contracts • General Issues • Promise enforceable as legally binding obligation • Written v. oral • Capacity • Legality • Meeting of the Minds

18. Contracts • Employment • Employment At Will v. Employment Contracts • Covenants not to compete • Geography • Practice • Time

19. Contracts • Remedies for breach • Money • Specific Performance

20. 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

21. 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”)

22. 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

23. 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.

24. 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.

25. 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.

26. Review • True or false: • As an employee, you may review your personnel file on request.

27. Review • True or false: • Policies in employee handbooks may create employment rights for employees.

28. 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.

29. Review • True or false: • Documentation of performance problems is not necessary for termination of an employee.

30. 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.

31. Review • True or false: • The laws prohibiting sexual harassment in the workplace only cover harassment between men and women.

32. 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.

33. Review • True or false: • An employer may ask a job applicant to take a drug test.

34. Review • True or false: • Employers may not be held liable for negligent hiring if they perform a background check on a prospective employee.

35. Review • True or false: • Employers will not be held liable for sexual harassment if they have an anti-harassment policy.

36. Questions?