The Law of Health Care: Malpractice and State Practice Acts

Question 1

The failure to exercise the skills that would normally be exercised by other members of your profession with similar skills and training = ?

The Law of Health Care

Answer 1

Malpractice:

• The failure to exercise the skills that would normally be exercised by other members of your profession with similar skills and training

Question 2

Malpractice:

• Liability on the part of health care providers forpatient injury caused by = ?

The Law of Health Care

Answer 2

Liability on the part of health care providers forpatient injury caused by:

• Professional negligence
• Breach of contractual promise regardingtreatment
• Intentional misconduct
• Liability for injury from dangerously defective treatment-related products or modalities
• Abnormally dangerous clinical activities.

Question 3

Health care professionals are bound to comply with the ethical principle = ?

The Law of Health Care

Answer 3

Health care professionals are bound to comply with the ethical principle:

• “Do no intentional malicious harm”

Question 4

Medical malpractice vs. Health care malpractice = ?

The Law of Health Care

Answer 4

Medical malpractice:

• Refers to the potential liability of physicians and surgeons.

Health care malpractice:

• Primary health care professionals other than physicians and surgeons.
• Includes advance practice nurses, podiatrists, dentists, rehab professionals, etc

Question 5

2 Categories of factorsand examples of increasinghealthcare providers malpractice liability exposure = ?

The Law of Health Care

Answer 5

Factorsincreasinghealthcare providers malpractice liability exposure:

(1) Externalfactors:

• Litigious nature of American public.
• New/ complex government and accreditation agency regulations (E.g.: Health insurers and HMOs are notliable under state law for injury to patients from negligent health care providers).
• Progression of health care delivery system to business-like relationship

(2) Internalfactors:

• Broadening scope of practice and specialties.
• • Direct Access
• • Advanced professional degrees and residencies.
• • Cross-training: multiple skills (peds, lymphedema,etc)
• • Delegation of care (PTA, aide)

Question 6

Conduct by a person who owes another a legalduty, which falls below a standard establishedby law for the protection of others againstunreasonable risk of harm = ?

The Law of Health Care

Answer 6

Negligence:

• Conduct by a person who owes another a legalduty, which falls below a standard establishedby law for the protection of others againstunreasonable risk of harm.
• In other words: The failure to do what a reasonable and prudent person wouldusually have done under the same or similar circumstances for agiven situation.
• The conduct can be a positive act or an omission (a failure to act, when a PT had the dutyto act)

Question 7

Four Required Elements of Proof in a Negligence Lawsuit = ?

The Law of Health Care

Answer 7

Elements of Proof: must fulfill a “litany of proof” to allege professional negligence; representing attorney evaluates these 4 elements to determine if it can be proven in court =

1. Owed Duty: The PT owed a duty of care to the patient.
2. Breach of Duty: The PT violated the duty owed through conduct that constitutes professional negligence.
3. Causation:The PT’snegligent conduct caused the patientinjury.
4. Damages: The injuries sustained warrant the award of monetary damages

Question 8

Liability for Professional Negligence - Four Elements:

• (1) Owed Duty = ?

The Law of Health Care

Answer 8

(1) Owed Duty:

Duty: obligation that individuals have to others insociety; do you owe them a “standard of care” (e.g.: is there a PT/patient relationship?).

• pt. calls for appt
• pt. presents self for care
• pt. signs in, awaits treatment
• health care professional accepts pt. forcare.

PT’s are free to decline patients who do not fall within their scope of practice or personal competence.
* Not free to decline patients for illegalreasons, discrimination.

Question 9

Improper unilateral termination by atreating health care professional of aprofessional-patient relationship, without patient consent or agreement = ?

The Law of Health Care

Answer 9

Abandonment:

• Improper unilateral termination by atreating health care professional of aprofessional-patient relationship, without patient consent or agreement.
• Patient can d/c therapist at any time, however same is not true for therapist.
• What about personality conflict?

Question 10

Liability for Professional Negligence - Four Elements:

• (2) Breach of Duty = ?

The Law of Health Care

Answer 10

Breach of Duty: Substandard care.

Court establishes Legal Standard of Care:

• Experts from same discipline
• Professional practice definitions, APTA Standards of Practice, state licensure agencies scope of practice documents, Code of Ethics, journals, etc.
• Not following what a reasonable professional peer would have done andat least whatis minimally acceptable clinical practice
• Not meeting legal practice standards

Question 11

Substandard care = ?

The Law of Health Care

Answer 11

Substandard Care:

• Care that fails to comply with legal and ethicalstandards; that is, care that fails to meet atleast minimally acceptable practice standards.
• Standard of care established by expert testimony from health care professionalsof the same discipline as the malpracticedefendant who can reference authoritativetexts & peer reviewed publications or referenceclinical practice protocols and guidelines.
• Substandard care: the standard is not perfection, it is what a “reasonable PT with similar training would have done under similar circumstances”.

Question 12

Liability for Professional Negligence - Four Elements:

• (3) Causation = ?

2 things

The Law of Health Care

Answer 12

Causation:

• Action or failure to act, resulting in injury

(1) Actual Cause:

• Pt. would not have sustained that injury ‘but for’ that care
• Any direct casual link
• Easy to prove

(2) Proximate Cause:

• Legal causation, more difficult to prove
• Elusive definition
• • (e.g.PT sued as result of patient femoralfractureduring therapy. Should the PT have researched patient’spreexisting medical condition, and foreseen that this fracture could have occurred?)
• Harm should beforeseeableto prove proximate cause

Question 13

Liability for Professional Negligence - Four Elements:

• (4) Damages = ?

The Law of Health Care

Answer 13

Damages:

• Must prove they sustained injuries as direct result of PT’s breach ofduty, which require payment of money in order to make plaintiff ‘whole’ again.
• Special (compensatory) damages(out of pocket losses: loss of wages, additional medical care).
• General (non-economic) damages(pain/suffering/quality of life/future).
• Punitive damages: designed to punish the wrongdoer.

Question 14

2 Types of Liability = ?

The Law of Health Care

Answer 14

2 Types of Liability:

(1) Vicarious Liability:

• Employer bears indirect legal and financial responsibility for the conduct of other persons/ employees/volunteers
• Does not excuse employee from financial liability directly responsible for negligent patient injury
• Sueing the employer in addition to employee gives a victim another person to pursue claim against
• Employer not responsible for malicious intentional misconduct (unforeseeable)

(2) Corporate Liability:

• Means hospitals are directly liable and treated like any other ordinary business.
• E.g. hospitals held liable for lack of quality assurance programs, lack of screening and hiring of physicians/PTs, heldliable for negligent assurance of staff credentials.

Question 15

8 Recommendations to avoid litigation = ?

The Law of Health Care

Answer 15

8 Recommendations to Avoid Litigation:

1. Conduct a thorough examination.
2. Seek consultation when in doubt.
3. Check the condition of your equipment.
4. Instruct patients thoroughly.
5. Keep the referring physician informed.
6. Obtain proper consent for treatment.
7. Do not delegate to unqualified individuals.
8. Keep accurate and timely records.

Question 16

2 Key defenses to health care malpractice actions = ?

The Law of Health Care

Answer 16

2 Key Defenses to Health Care Malpractice Actions:

(1) Comparative Fault:

• Patient contributory negligence
• Courts assess amount of patient responsibility and assign % of the fault to them.
• • E.g. Patient not doing their rotator cuff exercises post-op
• • E.g A patient s/p a laminectomy: “Let’s see how much I can lift!”

(2) Statute of Limitations:

• Time after injury when patient can file a lawsuit. Begins at apoint when a patient knows they were injured
• Alleged victim must file civil law suit within atimeframe
• • “In Kansas, a medical malpractice action must be brought within two years after the fact of injury becomes reasonably ascertainable to the injured person.
• Allows plaintiff time to investigate, consult counsel, file,etc
• Createscertainty and finality
• Documents and witnesses still hopefully available

Question 17

Purposes of Documentation = ?

Answer 17

Purposes of Documentation:

• Your written account of care to communicate to other providers ofthis patient
• Risk management purposes
• Basis of planning & continuity of care
• Quality measures
• Insurance appeals
• Justification forreimubursement

Question 18

Documentation:

• Has its own = ?
• Serves to = ?
• Should be = ?
• Includes = ?

The Law of Health Care

Answer 18

Documentation:

• Has its own malpractice implications.
• Patient record is a legal document, admissible in court.
• Standard for formats and frequency aredetermined by statutes, licensure regulations,professionalassociation guidelines, etc.
• Failure to document correctly per standardsmay constitute professional negligence.
• Serves to protect the patient as well as provider.
• Part of the legal duty owed to a patient.

Shoulde be concise, objective, timely, and include accurate information of:

• pt. chief c/o
• Relevanthx
• Physical exam & findings
• Informed consent
• Intervention(s) delivered
• Any referral
• Home care instructions
• Follow up care & discharge
• Any patient responses- personality- refusals-

Question 19

Documentation:

• Spoliation = ?

The Law of Health Care

Answer 19

Spoliation:

• Alteration or destruction of records.
• This is NOT covered by malpractice insurance.

Question 20

Incident Reports:

• What are they used for = ?
• When are they the most common = ?
• Should be = ?
• Should NOT = ?

The Law of Health Care

Answer 20

Incident Reports: Alerts management to possible safety hazards

• Most common = Patient falls
• Documents important facts about an adverse event for thepurpose of preventing liability on part of the organization
• Should be = Concise and objective, facts only (Time, date, location, witnesses).
• Do NOT speculate, assign blame, or offer opinion
• Do NOT file in treatment record or mention its creation intreatment record.

Question 21

Physical Therapy Licensure:

• Aims to protect = ?
• Is managed by = ?
• Are there any exceptions = ?

The Law of Health Care

Answer 21

Physical Therapy Licensure:

• After passing the NPTE, a physical therapy license is required to practice as a PT or a PTA in the US.
• Licensure laws aim to protect the public by outlining expected behaviors and minimum competency standards for initial and renewal of license.
• Unlike a driver’s license, 1 license doesn’t allow you to practice anywhere.
• Licensing is managed by individual state regulatory boards.
• Licensure is state-specificand each jurisdiction has its owncode of conduct.
• You need to apply for licensure and obtain a valid state license for each state in which you practice.
• An exception to this = The Physical Therapy Licensure Compact

Question 22

Physical Therapy licensure compact = ?

The Law of Health Care

Answer 22

Physical Therapy Licensure Compact:

• PT Compact: An agreementbetween member states to offer eligible PT’s a faster, easier, and less expensive path to licensure in multiple states.
• Ie. A Compact privilege is the authorization to work in a participating state other than your home state

Home state:

• A person’s “true, fixedand permanent home and is the place where a person intends to remain indefinitely”…

Remote state:

• A state other than the person’s home state, that is participating in the PT Compact and where a PT wants to obtain acompact privilege.

[PT Licensure Compact] (https://www.fsbpt.org/Free-Resources/Physical-Therapy-Licensure-Compact)

Question 23

In order to obtain a compact privilege = ?

The Law of Health Care

Answer 23

In order to obtain a compact privilege, the PT must:

• Hold a valid, current license in the home state
• Not have any disciplinary action against the license for prior 2 years
• Meet all jurisprudence requirements of the remote state; and
• Apply for a compact privilege

Question 24

Advantages to compact privileges = ?

The Law of Health Care

Answer 24

Compact Privileges: If practicing in a remote state, the PT must function within the laws and regulations of that remote state.

Advantages:

• All of your licenses have a common renewal date - the date of your home state.
• The time, effort and expense to get licensed in other states is greatly reduced.
• Simply to here, take the jurisprudence exam if the remote state requires, complete the application, pay the fees.
• Once this online process is completed you immediately are issued a compact privilege for the remote state.
• The only CEU requirements are those of the home state

Question 25

Scope of Practice:

• The legal (jurisdictional) scope of practice is established by = ?

The Law of Health Care

Answer 25

Scope of Practice:

• The legal (jurisdictional) scope of practice is established by the state practice act in which the PT holds a license.
• This includes the state practice act of the remote state if working with compact privileges.

Kansas Practice Act

Question 26

Kansas Practice Act Activity

(1) A physical therapist must have 2 years of experience and a Doctorate degree before treating a patient without a referral.

• True/False = ?
• If true/false, what are some of the stipulations to this = ?

The Law of Health Care

Answer 26

(1) A physical therapist must have 2 years of experience and a Doctorate degree before treating a patient without a referral.

• True/False = False

If true/false, what are some of the stipulations to this?

Question 27

Kansas Practice Act Activity

(2) There is a grace period after the date that a license expires in which a PT/PTA can still legally practice while taking care of the paperwork.

• True/False = ?
• If true, how long is this period? = ?

The Law of Health Care

Answer 27

(2) There is a grace period after the date that a license expires in which a PT/PTA can still legally practice while taking care of the paperwork.

• True/False = True
• If true, how long is this period? = 30 days

Question 28

Kansas Practice Act Activity

(3) Probation, civil penalties and license revocation are types of disciplinary action that can be taken by the licensing board.

• True/False = ?

The Law of Health Care

Answer 28

(3) Probation, civil penalties and license revocation are types of disciplinary action that can be taken by the licensing board.

• True/False = True

Question 29

Kansas Practice Act Activity

(4) A PT may concurrently supervise no more than 2 physical therapy assistants.

• True/False = ?
• If false, how many may a PT supervise? = ?

The Law of Health Care

Answer 29

(4) A PT may concurrently supervise no more than 2 physical therapy assistants.

• True/False = False
• If false, how many may a PT supervise? = 4, however, you can seek approval and request more.

Question 30

Kansas Practice Act Activity

(5) PT aides/techs may perform modalities such ashotpacks,electrical stimulationand ultrasoundas long asthey have on-site supervision.

• True/False = ?

The Law of Health Care

Answer 30

(5) PT aides/techs may perform modalities such ashotpacks,electrical stimulationand ultrasoundas long asthey have on-site supervision.

• True/False = True

Question 31

Kansas Practice Act Activity

(6) Are there any stipulations to a physical therapist using the term Dr or Doctor = ?

• If so, what are they = ?

The Law of Health Care

Answer 31

(6) Are there any stipulations to a physical therapist using the term Dr or Doctor = Yes

• If so, what are they = Doctor of Physical Therapy

Question 32

Kansas Practice Act Activity

(7) How often does a PT license need to be renewed = ?

• How much does annual renewal cost = ?

The Law of Health Care

Answer 32

(7) How often does a PT license need to be renewed.

• The license of each physical therapist and the certificate of each physical therapist assistant shall
  expire on December 31 of each year.

How much does annual renewal cost?

• $70

Question 33

Kansas Practice Act Activity

(8) List 2 activities that only a PT (not a PTA can do)according to the practice act.

The Law of Health Care

Answer 33

(8) List 2 activities that only a PT (not a PTA can do)according to the practice act.

1. Interpretation of a referral
2. Performance and documentation of an initial examination, testing, evaluation, diagnosis, and prognosis.
3. Development or modification of a plan of care that is based on a reexamination of the patient or client that includes the physical therapy goals for intervention.
4. Determination of the qualifications of support personnel performing an assigned task.
5. Delegation of and instruction about the service to be rendered by the physical therapist assistant.
6. Timely review of documentation, reexamination of the patient or client, and revision of the plan of care when indicated.
7. Establishment and documentation of the discharge plan and discharge summary.
8. Oversight of all documentation for services, including documents for billing, rendered to each patient or client under the care of the physical therapist.

pg. 43-44 - (100-29-16. Supervision of physical therapist assistants and support personnel.)

Question 34

Kansas Practice Act Activity

(9) If you do not pass the NPTE the first time, you can re-take the examination once. If false… how many attempts do you have to pass?

• True/False = ?
• If false, how many attempts do you have to pass = ?

The Law of Health Care

Answer 34

(9) If you do not pass the NPTE the first time, you can re-take the examination once.

• True/False = False

If false, how many attempts do you have to pass:

• Each applicant shall be required to successfully complete the applicable examination required by
  this regulation within six attempts.

pg. 34 - (100-29-4. Examination)

Question 35

Kansas Practice Act Activity

(10) Is professional liability insurance mandatory = ?

The Law of Health Care

Answer 35

(10) Is professional liability insurance mandatory = ?

• Yes, each person licensed by the board or holding a compact privilege as a physical therapist shall, before rendering professional services within Kansas, submit to the board evidence that the person is maintaining the professional liability insurance coverage required by K.S.A. 65-2920 and amendments thereto, for which the limit of the insurer’s liability shall be not less than $100,000 per claim, subject to an annual aggregate of not less than $300,000 for all claims made during the period of coverage.
• Each person licensed by the board as a physical therapist and rendering professional services in Kansas shall submit, with the annual application for renewal of the license, evidence that the person is maintaining the professional liability insurance coverage specified in subsection (a).

pg. 42 - (100-29-15. Professional liability insurance.)

Question 36

Kansas Practice Act Activity

(11) How many patient cases are required for dry needlingbefore taking the nextlevel course = ?

The Law of Health Care

Answer 36

(11) How many patient cases are required for dry needlingbefore taking the nextlevel course = ?

• After completion of a board-approved dry needling course, each physical therapist shall be required to complete 200 patient treatment sessions of dry needling before taking each successive course in dry needling. Each physical therapist shall complete all foundation-level courses before proceeding to an advanced-level course.

pg. 46 - (100-29-18. Dry needling; education and practice requirements (g))

Question 37

Kansas Practice Act Activity

(12) A separate signed informed consent must be obtained for each anatomical region that will be dry needled by a PT.

• True/False = ?

The Law of Health Care

Answer 37

(12) A separate signed informed consent must be obtained for each anatomical region that will be dry needled by a PT.

• True/False = False
• Does not require a seperate signed informed consent

pg. 45-46

Question 38

Kansas Practice Act Activity

(13) “Unprofessional conduct” can mean many things according to the Board.

• List some of them = ?

The Law of Health Care

Answer 38

(13) “Unprofessional conduct” can mean many things according to the Board.

List some of them:

1. Engaging in physical therapy using either of the following means (E.g. A false or assumed name; or impersonating a another person licensed as a physical therapist or certified as a physical therapist assistant).
2. Practicing physical therapy without reasonable skill and safety because of any of the following: Illness; alcoholism; use of drugs, controlled substances, chemicals, or any other type of material; or any mental or physical condition that impairs judgment or ability to provide care.
3. Having a physical therapist or physical therapist assistant license, registration, or certification revoked, suspended, or limited by the proper regulatory authority of another state, territory, or country, or the District of Columbia for acts or conduct that would constitute grounds for disciplinary action.
4. Having a physical therapist or physical therapist assistant application denied by the proper regulatory authority of another state, territory, or country, or the District of Columbia for acts or conduct that would constitute grounds for disciplinary action.
5. Cheating or attempting to subvert the validity of the examination required for licensure or certification.
6. Failing to provide adequate supervision to a physical therapist assistant or other person who performs services pursuant to delegation by a physical therapist.
7. Failing to furnish to the board, its investigators, or representatives any information legally requested by the board.
8. Being sanctioned or disciplined by a peer review committee or medical care facility for acts or conduct that would constitute unprofessional conduct under this regulation.
9. Surrendering a license, registration, or certification to practice physical therapy in another state while disciplinary proceedings are pending for acts or conduct that would constitute grounds for denial, refusal to renew, suspension, or revocation.
10. Committing one or more instances involving failure to adhere to the applicable standard of care to a degree that constitutes gross negligence, as determined by the board.

pg. 40