This article and related information should not be considered as, or as a substitute for, legal advice and are not intended to or create an attorney-client relationship. Since the information included here is general, it may not apply to your individual legal or factual circumstances. You should not take (or refrain from taking) any action based on this article without first obtaining legal or professional advice.
Explaining ethicolegal issues in healthcare can be a bit daunting. When it comes to ethics and the law, there aren’t any goniometric measurements to interpret, no radiographic reports to read and interpret, no laboratory results to analyze. There are only written and unwritten norms and standards that guide and direct our practices in every discipline, at every level of clinical practice, from primary to supportive and consultative, and in every practice setting, from academic to clinical, management, research, and school-based.
Ethicolegal standards form the foundational mortar undergirding our practices and our relationships with patients and clients, professional colleagues, politicians, and all others.
What Would You Do?
Consider the following example, adapted from physical therapy clinical practice. The facts could readily be applied to any clinical discipline or provider:
Ron is a clinical PT and outpatient clinical supervisor in a hospital-based practice. On a busy late afternoon, a post-operative right knee arthroscopy patient arrives at the end of the working day with her 5-year-old son. Ron is the only staff member still in the clinic.
Ron takes goniometric knee range-of-motion measurements and carries out gentle soft tissue and patellar mobilizations. The patient then demonstrates the exercises she has been doing as part of her home program. Throughout the appointment, the patient’s son is sitting in a chair next to his mother’s exercise platform. But suddenly, before Ron or the patient can act, the boy runs to a nearby treadmill and climbs on. He manages to turn on the machine and is forcefully ejected from behind, falling onto his head and sustaining swelling and a cut. Clearly written and highly visible signs in the clinic warn patients that family members are not allowed to use any equipment.
Can you identify two ethicolegal issues from this scenario?
How should this be addressed, and what preventive measures could be taken in the future to avoid patient or visitor injuries and unnecessary liability exposure?
The first issue is that Ron is alone in the clinic with a patient. There are no support staff present to help Ron and no one to serve as a chaperone or witness to what transpired or otherwise might have transpired between Ron and the patient. A better practice strategy would be to ensure that an extender is present to assist the primary provider and to act as a chaperone and/or witness, if necessary.
While a healthcare professional’s highest duty owed is to their patients, every professional also has a high duty to self-protect against unnecessary liability exposure in practice.
The other key issue in this hypothetical situation involves the injury to the patient’s son. Clearly, the PT bears medical responsibility to render emergency aid to the injured visitor. But who, if anyone, bears legal responsibility for the child’s injuries?
While the warning sign may shift liability from Ron to the injured child’s mother, the child himself most likely doesn’t have any responsibility for contributory negligence because of his age, intellectual abilities, and lack of maturity. A piece of equipment such as a treadmill may be legally declared in an ordinary (premises) negligence legal case to be an attractive nuisance to anyone under age 12, depending on controlling state law. The accident might be adjudged a non-negligent unavoidable accident, where Ron escapes legal or financial responsibility, if a factfinder (judge or jury) concludes that Ron acted reasonably under the circumstances. In any event, an incident report—privileged from release to third parties—and a Safe Medical Devices Act report to the FDA are required.
Every healthcare professional must be cognizant and mindful of their ethicolegal responsibilities toward patients and others. One good way to reinforce these duties is by inviting health law attorneys to present continuing education seminars to staff on a regularly recurring basis. You can also stay up to date on ethicolegal issues with these MedBridge courses:
- Code of Ethics and Guide for Professional Conduct, APTA, 2019 (or relevant other-discipline ethics standards).
- Physical Therapy Professional Liability Exposure: 2016 Claim Report Update, HPSO, 2016.
- Safe Medical Devices Act of 1990, Public Law 102-629.