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The therapist must also avoid making any diagnosis that is outside of their professional licensing and specialty. For instance, they should avoid making notes that state that the client is "depressed" or any other similar comments (APTA, 2008). These comments are often unintentional, but they can lead to a serious potential for liability risk.
The physical therapist has many sources of information available to them, including the internet and conversations with other therapists. They often exchange information and pass on techniques that work for them. This is the nature of improvement within the profession. However, use of these techniques represents a legal grey area. They may result in improved patient outcomes and may be safe in many regards. However, when one does not use evidence-based practices, they set themselves up for legal malpractice. In a court of law, the opinions of other professionals do not hold as much weight as evidence-based practice.
Informed consent is the cornerstone of legal risk management in the health care industry. It is unthinkable to begin any treatment without first obtaining informed consent from the patient. However, simply obtaining a general permission to treat is often not good enough in today's legal environment. A proper informed consent is necessary in order to avoid any potential risks. An informed consent must contain at least five key elements in order to represent a realistic reduction in risk. The informed consent needs to state the nature of the intervention, the material risks and potential harm, any complications of the treatment, the goals of the interventions, and any reasonable alternatives (APTA, 2008).
In order to save time, many companies develop standard informed consent forms. However, the terms of these standardized forms are often not specific enough to cover every treatment and every circumstance that could arise. Certain standard language must be included, but this is often too general to offer any real legal protection. In order to reduce risk an informed consent should be drafted for every new case. This is time consuming, but it will pay off in the reduction of legal claims and liability. Standard sections can be drafted, but there needs to be space for the therapist to insert the required information as it relates to each case and treatment plan. Consent is one of the most important legal tools for avoiding risk and liability arising from claims.
Licensure is another important legal issue. In a liability claim, one of the most common tactics is to attempt to discredit the ability and licensing of the facility or of the individuals involved in a treatment plan. To allow therapists to work with expired licenses, to perform work outside of the scope of their license, or to allow them to overextend their authority are the three most common mistakes that lead to liability and claims against the facility.
To fail to attend to these issues represents poor management and is inexcusable from a legal standpoint. The scope and authority limits of the therapists must be spelled out in their contracts. Annual review of these issues is another method that can help to eliminate the overextension of licenses. Assigning one person to see that these issues are properly dealt with is essential, otherwise, the responsibility for them tends to become diffused and they end up not being addressed.
Other issues can affect risk management in the physical therapy facility include practicing in multiple states and failure to abide by all of the necessary governing agencies. The Get Well Group does not intend to practice in other states at the current time, but one must be aware that in the event of the decision to expand in the future research needs to be conducted into the specific requirements of that state. States differ in licensing and reporting requirements. One of the most common mistakes is to assume that all of the rules are the same as that of the home state. A failure to research these issues is a key liability risk.
In addition to researching individual state requirements, the legal department must make certain that the facility complies with all governing agencies. In many cases, noncompliance issues arise from lack on knowledge into the specific roles that various agencies play. At minimum, the Get Well Group will have to comply with the regulation of the following agencies: Occupational Safety and Health Administration (OSHA), the Pharmacy Act, Worker's Compensation, and the Environmental Protection Agency (APTA, 2008). Many facilities are not aware of all of the agencies with which they must comply. Some of the most common violations include advising an employer as to OSHA compliance issues, dispensing over the counter medication or advising clients regarding medication, failure to dispose of medical wastes properly. Anything that is touched by human hands could be considered medical waste.
These are the most common sources of liability that must be addressed. However, this not a complete list of the many possibilities that could exist in the facility. This list will provide an excellent starting point for the development of policies and procedures to help mitigate risks. Further consultation will help the Get Well Group to address issues that are specific to the future facility.
Chapter 3: Recommendations and Conclusions
Although it is impossible to foresee every circumstance that could arise, many risks are foreseeable and preventable. The risk manger's job is to help to identify and eliminate as many risks as humanly possible. We have discussed the various areas that have the greatest potential for risk of liability. Some of these areas are common sense, yet many fail to acknowledge them in their risk mitigation plan. The purpose of this document was to make the risk management team aware of these issues while the facility is still in the planning stage. Taking measures to address these issues in facility policies is the first step in the ability to eliminate them in the future. This plan represents a proactive approach to risk management. The following recommendations will help to make these ideals a realty that results in real risk reduction.
The importance of documentation was discussed and its importance in avoiding litigation. We found that documentation can help to eliminate litigation, but that it can also be a source of liability. In order to avoid both of these risks, it is recommended that a system for review be developed. Most documentation mistakes, either by omission of facts, or the unintentional violation of scope of service are unintentional. It is recommended that a system be established for the review of documentation. A second set of eyes can often see what the first one missed. Review of documentation should be done in a timely manner so that the memory of the facts does not fade. This system could include either peer or managerial review of all therapy notes,
We discussed the risks involved with the use of practices that are not based in clinical evidence. An internal review board would help to avoid many of these risks. All treatment procedures should be review by the board to make certain that they are evidence based. Therapists should be discouraged from using methods that are not approved by the board. However, in order to provide state of the art treatment, one should not eliminate the potential for new methods that are superior to current ones. The internal review board would provide an means to accomplish this task. If therapists discover new methods that may help their patients, they could present them, along with the evidence to support them to the internal review board. The board could review and approve any new treatments. This method would not discourage growth, but would help to assure that the methods being used by the facility do not present any additional risk.
Informed consent is an essential element of risk reduction. We discussed the various risks associated with informed consent. Legal review of not only the general informed consent policies and procedures, but of the individual elements of informed consent present with each case would help to eliminate an liabilities that arise from them. The therapist could draft their language and then submit for legal review. The patient could then sign it, but only after legal review. This is an extra step and hassle, but could pay off big in the end. The final recommendation for the Get Well Group is that a specific person needs to be in charge of licensure and compliance issues. A grievance system for clients would help to resolve issues before they get the to legal stage.
This analysis of the risk that may pose a potential liability for Get Well Group uncovered many of the key areas from which risk arises in this particular industry. This report provided recommendations that will help to eliminate these risks and provide for stability in the future. These recommendations are not meant to be comprehensive, but to provide a basis to build on in the future. The Get Well Group can use these recommendations to devise their own…[continue]
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