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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.

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legal issues in physical therapy

Legal Issues in Physical Therapy

June 1, 2006

UI Office of General Counsel

Maria Lukas, Associate Counsel

and

Jennifer Smith, Assistant Counsel

judicial system
Judicial System
  • Sources:
    • Constitutions
    • Statutes
    • Regulations
    • Cases/Judicial Opinions (“Common Law”)
    • Professional Code
roles of judges and juries
Roles of Judges and Juries
  • Substance
  • Procedure
legal relationship with patient
Legal Relationship with Patient
  • Establishment
    • Formal
    • Informal/Social
legal relationship with patient1
Legal Relationship with Patient
  • Termination:
    • Express
    • Implicit
    • Neglect
      • Abandonment
      • Malpractice
legal relationship with patient2
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
Torts - Malpractice
  • Malpractice
    • Duty
    • Breach
    • Causation
    • Damages
      • Compensatory
      • Punitive
malpractice
Malpractice
  • Burden of Proof
    • Battle of Experts
    • Standard of Care
      • Local
      • National
malpractice1
Malpractice
  • Defenses:
    • None committed
    • Chose acceptable alternative treatment
    • Clinical innovation
    • Contributory fault/Assumption of risk
      • Iowa: Comparative fault
    • Waiver/Release
torts
Torts
  • Vicarious Liability
    • Respondeat Superior
torts1
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
Informed Consent
  • Functions of Informed Consent
  • Elements:
    • Knowingly, willingly, voluntarily
informed consent1
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 consent2
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 consent3
Informed Consent
  • Exceptions:
    • Emergencies
    • Common Knowledge
    • Patient Knowledge
informed consent4
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
Contracts
  • General Issues
    • Promise enforceable as legally binding obligation
    • Written v. oral
    • Capacity
    • Legality
  • Meeting of the Minds
contracts1
Contracts
  • Employment
    • Employment At Will v. Employment Contracts
    • Covenants not to compete
      • Geography
      • Practice
      • Time
contracts2
Contracts
  • Remedies for breach
    • Money
    • Specific Performance
confidentiality
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
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”)
employment issues ten tips to stay out of court
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
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.
review1
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.
review2
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.
review3
Review
  • True or false:
  • As an employee, you may review your personnel file on request.
review4
Review
  • True or false:
  • Policies in employee handbooks may create employment rights for employees.
review5
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.
review6
Review
  • True or false:
  • Documentation of performance problems is not necessary for termination of an employee.
review7
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.
review8
Review
  • True or false:
  • The laws prohibiting sexual harassment in the workplace only cover harassment between men and women.
review9
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.
review10
Review
  • True or false:
  • An employer may ask a job applicant to take a drug test.
review11
Review
  • True or false:
  • Employers may not be held liable for negligent hiring if they perform a background check on a prospective employee.
review12
Review
  • True or false:
  • Employers will not be held liable for sexual harassment if they have an anti-harassment policy.