Professional Liability

1. Professional Liability Lori J. Mason, Esquire

2. Professional Issues • Subject to Legal Punishments (Criminal vs. Civil) • Malpractice, AKA Professional Negligence • Liability • Subject to Professional and possibly Legal Punishments • Professional Misconduct • Unethical Practices

3. Healthcare • Patients’ legal rights place legal duties (obligations) on health professionals • Patients’ ability to hold medical professionals responsible for providing services and for maintaining a standard of care emanate from • Federal and state laws • Statutory health care entitlement programs • Employee benefit plans • Practitioners’ contracts with health care institutions • Private contracts between practitioners and patients

4. Key Terms • Tort • A wrong experienced by one individual by the actions of another individual whereby the latter person has acted unlawfully (malfeasance) or has failed to act (nonfeasance) when he or she had a legal duty • Law of torts as applied to malpractice arises after the patient and professional relationship has been established • Professional now has a legal duty of care and patient has legal rights • Malpractice falls under the tort of negligence • Typically, negligence is unintentional

5. Negligence • Negligence is defined as the delivery of patient care that falls below the standards expected or ordinary reasonable practitioners of the same profession acting under the same or similar circumstances (Scott, 2000)

6. Malpractice • Any potential legal basis for imposition of liability, including • Professional negligence • Breach of a patient-professional contractual promise • Liability for defective care-related equipment or products that injure patients or clients • Strict liability (absolute liability without regard for fault) for abnormally dangerous care-related professional activities • Intentional care-related provider misconduct (Scott, 2000)

7. Malpractice • Malpractice is not limited to negligent (unintentional) infliction or creation of pain during evaluation or management of a disorder. Malpractice can include (Rowland, 1988): • Misdiagnosis • Failure to reveal alternative remediation • Improper or substandard remediation techniques • Failure to refer when not competent to manage • Referral to an inferior system for management • Breach of an actual warranty (for service or for a product) • Breach of an implied warranty • Release of information to unauthorized persons or failure to release information to authorized persons • Failure to properly instruct in the use of a potentially hazardous product • Failure to warn of a potential hazard or harm

8. Four Requisite Elements • If a patient files a complaint, he/she must prove four requisite elements • Duty: the duty required of the professional is the standard of care– the obligation shared by all similarly educated and skilled practitioners in similar circumstances exercising good judgment and prudence • Breach: The duty was breached (e.g., the practitioner failed to administer an intervention that was indicated or administered a customary intervention in a substandard manner) • Damages: The patient experienced harm (e.g., misdiagnosis, physical injury, comorbidity) • Causation: The harm experienced by the patient (plaintiff) was caused by the breach of a legal duty

9. Malpractice • Exists “anytime a physical or mental injury or economic loss results from an action or omission which falls within a recognized standard of care” (Rowland, 1988)

10. Malpractice Versus Liability • Liability is the state of being responsible for the professional treatment of one’s patient and to the ASHA Code of Ethics, and is the result of malpractice • Occurs when the SLP is negligent during the course of assessing or treating a patient and this negligence results in injury to the patient • Malpractice is the action of conduct that is unprofessional and liability is the result

11. Liability • Negligence law covers compensation of individuals who have been accidentally harmed by another • Negligence law is based on the principle of reasonable care • If your failure to use reasonable care in the treatment of your patient results in harm to that person, potentially, you could be legally liable • Institutions carry liability insurance • CARRY YOUR OWN PROFESSIONAL LIABILITY INSURANCE

12. Being Served a Summons • Notify your supervisor and/or legal counsel and discuss the reason for the summons • If a malpractice suit is filed, contact your insurance carrier • Immediately prepare a response to the summons to avoid a default judgment • Your attorney files the response • Usually violator has 30 days to file response, may vary from state to state • Work closely with your attorney and take an active role in your defense • Attend the patient’s deposition • If you are a witness in a case, explain terminology and use demonstrative aids such as videos and audio recordings to explain the type of service being provided to the patient

13. ASHA Cases of Malpractice • Has a few cases reported each year • Complaints typically involve • Deceitful and/or misleading advertising • Insurance fraud • License fraud • General practice fraud • Unprofessional conduct • Low standards of care • Unethical practices • Refusal of services • Inadequate record keeping

14. Filing a Complaint with ASHA • Must be in writing • Must be signed by individual filing the complaint • Complainant signs a waiver of confidentiality • Complaint sent to violator, violator has 45 days to respond • Can request an appearance before the Ethical Practices Board and take counsel if so desired • Ethical Practices Board convenes and either dismisses or adjudicates the complaint • Board informs parties of their decision and when appropriate cites the specific code infringement and the proposed sanction • Reprimand • Private slap on the wrist • Censure • Public slap on the wrist • Revocation of membership and/or certification • Takes away the right of a person as a member of ASHA to continue practicing as an SLP

15. Managing Risk • Know ASHA Scope of Practice • Know ASHA Preferred Practice Policies • Establish positive professional relationships with patients and their families • Return phone calls • Do not neglect appointments • Adhere to schedules • Maintain a pleasant attitude • Address the needs and concerns of the patient and his/her family • Provide patient/family education regarding disorder/illness • Help patient and family set realistic treatment goals • DOCUMENT, DOCUMENT, DOCUMENT • Date and time seen • Patient concerns/complaints • Descriptions of visits, comments, feedback • Specific language regarding the disorder or illness • Mark errors appropriately • Single line through error, labeled as an error, date, clinician’s signature • Never use correction fluid

16. Legal Issues Related to Abuse • SLP’s are mandated reporters of child abuse and elder abuse • Laws vary by state

17. Child Abuse • Child abuse – implies purposeful and serious injury inflicted upon a child be a caregiver • 4 categories • Neglect • Physical abuse • Sexual abuse • Emotional abuse

18. Mandated Reporting: Child Abuse • What to do if you suspect abuse • Mandated reporters of suspected child abuse or neglect include: • Social workers • Teachers and other school personnel • Physicians and other health-care workers • Mental health professionals • Childcare providers • Medical examiners or coroners • Law enforcement officers

19. Mandating Reporting: Child Abuse • Follow your organization’s policies and procedures regarding reporting • To whom to report • Call your state’s Child Abuse Hotline • Pennsylvania: 1-800-932-0313 • National: 1-800-422-4453

20. Mandated Reporting: Child Abuse • When to report • Reasonable cause • If you suspect or have reason to believe that a child has been abused or neglected • If you have knowledge of, or observe a child being subjected to conditions that would reasonably result in harm to the child • Personal observation of physical and behavioral evidence • Report from the child

21. Mandated Reporting: Child Abuse • Immunity and confidentiality • Abuse and neglect records are confidential • Identity of the reporter is specifically protected from disclosure to the alleged perpetrator in most states • Mandated reporters have immunity from any civil or criminal liability if you have reported a suspected case in good faith

22. Mandated Reporting: Child Abuse • Consequences for failing to report • Civil liability for damages caused by failure to report a case of suspected child abuse or maltreatment • Guilty of misdemeanor • Continued harm to the child

23. Elder Abuse • Elder abuse: actions by a person in trust who causes harm to an elder (commission) • Elder neglect: “an act of not doing something, of withholding goods or services” (omission) • Passive neglect: due to ignorance or stress on the part of the caregiver • Active neglect: deliberately ignoring the elder

24. Elder Abuse • Neglect and abuse occurs in the home, in institutional settings/facilities, or may be self-imposed • Seven common forms of elder abuse: • Physical • Sexual • Emotional/psychological • Neglect • Abandonment • Financial or material exploitation • Self-neglect

25. Elder Abuse • Also considered as possible abuse/neglect: • Rights abuse: denying the civil and constitutional rights of an elder, not declared by the court to be mentally incapacitated • Institutional abuse: “poor practices” • Reflects intentionality of the abuser • Racial abuse: racially motivated abuse

26. Mandated Reporting: Elder Abuse • You do not need to prove abuse to make a report • If you suspect elder abuse: • Discuss your suspicions with your immediate supervisor • Document in writing the indicators • Follow the policy and procedure of your setting • Call the elder abuse hotline: • 1-800-490-8505

27. Questions?