Barbara Kornblau: I am happy to be here. We are going to talk about Malpractice in Occupational Therapy today. This is a topic that we do not often see, but it is something we need to protect ourselves from. I am very familiar with malpractice cases as I have testified as an expert witness in many cases, and I actually represented someone who was injured by an occupational therapist in a malpractice case. It was interesting because when I got the call, I thought that the attorney wanted me to be the expert witness. He said, "No, I want you to be co-counsel because something happened here and you are going to be able to figure it out." I will tell you about these cases as we go through the course.
What is Malpractice?
The definition is:
practice of occupational therapy where the clinician fails to exercise the knowledge, skills, and standards commonly used by a reasonable prudent occupational therapy practitioner.
When you do not practice according to standards, knowledge, and skills, something bad happens. It could be not being aware of what the law is, maybe practicing negligently, or it might be violating civil or criminal laws. For example, if you violate HIPAA and you disclose private information about a patient, there is a HIPAA violation which could be a civil charge by the government, but there is also malpractice because we have a duty to our patients and clients to keep information confidential, and we have a duty to obey laws. When you do not obey the law, you are committing malpractice. It can be negligence or it can be something that you do that breaks the law. Malpractice is often based on theories of negligence. What is negligence? That is a fancy word that we hear bantered about a lot. There are 4 elements that we are going to go over.
Negligence occurs when your conduct falls below the acceptable standard of care for the profession. There are certain things that we could all agree are acceptable standards of care in the profession. For example, it is accepted within our profession that if we transfer a patient, we have to lock the wheelchair. That is a standard of care. If you pose this question to 100 occupational therapists and occupational therapy assistants, they are going to all say, "Yes. You must lock the wheelchair before transfers." Another example is if you make someone a splint, the standard of care says that you have to check the splint later to make sure there are not places where the splint is rubbing or causing skin breakdown. There are certain things that are expected as a minimum baseline standard of care for behavior as an occupational therapist.
Now, another element of negligence is that you do not need to intend to do something poorly. It does not matter that you did not mean it. The standards, looking at negligence, only considers your conduct, not your state of mind. The fact that you did not mean it, or the fact that somebody did something on purpose, are both irrevelant in terms of negligence.
We also owe duty to our patients and if we breach that duty, that is one of the elements of negligence. We owe duty to do no harm. This comes from the Hippocratic Oath. We owe duty to our patients and clients to provide occupational therapy intervention that complies with AOTA's Code of Ethics even if you are not a member, it is a standard of the profession. This complies with the Standards of Practice that AOTA has put together, and other official documents of the profession. For example, you have to do an evaluation before you treat someone. That is in one of these documents. This is how we do things. We have a duty to keep patient information confidential, again that is in HIPAA but it is also in the Code of Ethics, the Standards of Practice, and many other official documents of the profession. We also owe of duty to provide occupational therapy services that comport with the knowledge base of the profession. This means we have standard textbooks that say certain things in them and we are expected to know what those are and expected to practice according to what is in those textbooks. One example is lock the wheelchair before you transfer a patient as stated before. In the malpractice case that I represented, a woman had arthritis and she used five pound weights in therapy. She left rehab a lot worse than she came in. I asked the therapists if they were familiar with one of the standard Phys Dys textbooks. They all said, "Oh, absolutely, that's the textbook we used in school." I then asked, "So, you've read it?" To which they replied, "Yes." "You had exams based on this textbook in your classes?" and again, "Yes". I had them then turn to a particular page and read what it said about arthritis. It said something like, "No weighted, jerky movements should be used with someone with arthritis." Again we are expected to provide services that comport with the knowledge base of the profession, and the knowledge base of the profession comes from textbooks and what we learned in school.
We also have a duty to report child abuse and elder abuse. This is in the law and statutory duties. Within the context of treating patients, you may treat a patient who is the victim of child or elder abuse, or domestic violence. Depending on the law in your state, you must report these to the state. Most states require you report child abuse. A lot of states require elder abuse reporting, and some states may require domestic violence but if they do not, it is something that you may have a duty to discuss with your patient. This is not so cut-and-dry but it is something to think about.
We also have a duty to warn. This came from a case, Tarasoff v. Regents of California. Dr. Moore, psychiatrist who worked in California, treated a Mr. Poddar. Mr. Poddar killed Tatiana Tarasoff in 1969. Two months before Tatiana Tarasoff's death, Mr. Poddar confided in his psychologist that he intended to kill Tatiana and he has a pretty specific plan. Dr. Moore informed the campus police about this plan, they detained him briefly, and then they released him. The problem is that nobody warned Tatiana of the potential danger that she was under and Mr. Poddar killed her. In court, the judge made a common law based on this case saying you have a duty to warn. That therapist must exercise reasonable care to protect persons who are not their patients. Based on this interaction, he should have been able to determine based on the standards of the profession that this person presented a serious threat to this other person and had a duty to warn her. This is an exception that allows you to break confidentiality. In fact, it requires you to. When might this come up for an occupational therapist? Perhaps a client says, "I'm going to kill that 'SOB' Dr. Jones. How can he say I'm faking this my worker's comp injury. I'm going to the gun show this weekend and I will take care of him." I feel pretty comfortable in this situation that the client has a plan. My duty would be to call Dr. Jones and let him know that his patient is thinking about killing him. He should take some action to take care of himself as this is dangerous.
