Stories from the front: personnel employment and management; an examination of risk-management principles through the prism of case scenarios.

About this series: With physical therapy moving toward realization of the APTA Vision for Physical Therapy 2020, and in keeping with the goals that represent the 2004 priorities of the Association (see box on page 29), it is imperative that physical therapists (PTs) and physical therapist assistants (PTAs) recognize and appreciate that sound risk management is a hallmark of autonomous practice. APTA'S Committee on Risk Management and Member Benefits uses "Stories from the Front," now in its sixth year, as a vehicle for conveying information about emerging and ongoing risk-management trends in clinical practice. Using a case-based format, the three columns in each year's series illustrate risk considerations identified by the committee through its review of claims data, and provide readers with references and documents that can assist them in making risk-reducing decisions.

An emerging issue of concern in physical therapy is the risk that surrounds personnel management and employment decisions, in addition to effectively managing the risks of clinical practice, physical therapy professionals must apply risk management principles when hiring and supervising employees and independent contractors who represent the practice. In this, the final column in the "Stories from the Front" series of 2004, two serious situations involving employee-related risk illustrate the profound importance this non-clinical area of practice holds for practice owners, managers/supervisors, and administrators.

The Cases

The first case involved a physical therapy practice that employed a certified athletic trainer (ATC) as an aide and also engaged her as an independent contractor to provide athletic training services to a local high school's soccer team. The practice's professional liability insurance covered the ATC in both of her roles.

One of the soccer players was brought to the training room by a teammate following a game. The teenager told the ATC that he had sustained a blow to the head during the game, and he revealed that he had been involved in several practice- and game-related collisions over the previous 2 weeks. The blows, he reported, had left him with occasional dizziness, nausea, pressure behind the eyes, and headaches.

The ATC contacted the player's mother, expressed concern about the recurrent injuries and symptoms, and encouraged her to have her son examined by a physician and/or a neurologist. The mother took the ATC's advice and asked the family's physician to evaluate the teen. The physician did so and cleared him to return to practice and participate in the next scheduled match.

That decision concerned the ATC, who then contacted and briefed the soccer team's physician. That physician suggested the trainer conduct a daily functional exam of the teenager, but he added that the young man should be permitted to continue to participate in all team activities because the family's physician had cleared the youth to do so.

The trainer acted on those instructions, and each time she examined the teen he denied any return of his previous symptoms. His denials continued during an exam just prior to the start of the next scheduled soccer match. Fifteen minutes into the match, the player collapsed on the sideline and died. Brain swelling and a subdural hemorrhage ultimately were listed as the causes of death.

A complaint of negligence, including careless monitoring, was brought against the ATC. Two ATCs for college teams subsequently told the defendant's counsel that the ATC's actions had met and perhaps exceeded the standard of care for an ATC, but the physical therapy practice's insurer felt the plaintiff's attorney could make a strong case that the ATC should have called the player's mother and family physician, not merely the team physician, after the family physician's evaluation to express her concerns and seek further discussion before the young man returned to the practice field.

Complicating matters were the facts that the family physician quickly settled separately and the team physician was protected from litigation by state law. This meant the ATC would have stood alone had the case gone to trial. The practice settled the claim for more than $300,000, which bought both the ATC and the practice that employed her full release from future prosecution.

The second case involved a PT who was employed by a physical therapy practice to provide treatment in patients' homes. The PT was sent to the home of 60-year-old woman who recently had had a stroke, in the course of providing an intervention, the PT asked the patient to undress and allegedly touched her inappropriately on her breast, stomach, and pubic area. A few days after the visit, the patient reported the incident to the police, who conducted an investigation that led to the PT's arrest. The PT ultimately pled no contest to the charges.

Allegations brought against the PT's employer included negligent hiring and negligent supervision. Practice officials responded that they had conducted a pre-employment background check on the PT that revealed no unethical or illegal behavior. A police investigation determined, however, that four prior accusations of sexual misconduct had been brought against the PT--three of them lodged by former patients. While it is possible that the person conducting the background check for the physical therapy practice was furnished with incorrect information, under the legal doctrine respondent superior, the employer in this case nevertheless was deemed responsible for the actions of its employee. Given the nature of the allegations, the practice saw to it that the case was settled out of court--at a cost of approximately $100,000.

The Risks

These cases offer opportunities to consider how these physical therapy practices might better have prevented tragic outcomes for patients and also protected themselves from liability risk. It's important to note that, while outside observers can second-guess any decision to settle out of court, and while settling does not necessarily mean an individual or firm would have lost a case in court, the facts remain that in both of these cases, the practices involved and their professional liability insurers sized up the risks and deemed financial settlement the best option.

The first case points to the risks of using independent contractors and/or providing off site services, and raises the following concerns for practices that enter into such arrangements:

* Liability. As part of the contracting process, physical therapy practices must consider whether they would be willing to have their liability insurance policy respond were a malpractice charge to be brought against an independent contractor with which the practice is working. Savvy contractors likely will raise this question as well, so it makes sense to be prepared. At the outset of any employment relationship, expectations in this area should be discussed and employment contract language, if applicable, should be clear on the matter.

* Employee orientation and oversight. Just as proper orientation and oversight of onsite personnel is important, so, too, must employers sufficiently orient and oversee their offsite service providers. In this case, had the ATC been instructed during her orientation to report back to practice managers whenever she encountered difficult situations, and had a practice official maintained regular contact with her, the ATC may well have discussed the soccer player's situation with that individual--leading, perhaps, to morn immediate and direct contact with the youth's family physician before the young man resumed regular activity with the team.

* Vetting process. It is unclear what steps, if any, the physical therapy practice took to vet the ATC before selecting her to represent the practice. While credentials are important, they don't ensure that a contractor is an appropriate representative of the practice. Conducting rigorous background and reference checks is important, as is engaging in a thorough interview process. There is evidence of thoughtfulness on the part of the ATC in this case, but perhaps another candidate for the job, properly vetted, might have performed better and prevented tragedy.

* Legal protections. This case highlights the need, before entering into any arrangements involving service provision to a school system, to determine whether any immunity or protection from liability is afforded under state law to health care professionals working with school athletic programs. If such protection is available, the next questions are which professions are covered and the extent of the protection (eg, complete immunity or a cap on damages).

The second case illustrates that a comprehensive risk management strategy must include effective personnel management practices and take into account professional and ethical considerations. These elements are key:

* Human resources review. A responsible practice examines its human resources processes and asks the following questions: Are applicant interviews conducted in a thorough manner? Does the practice seek several references for each applicant and insist on speaking with individuals who can substantively assess the applicant's abilities and professional behavior? Are those who conduct the reference checks for the practice properly trained to gather complete information and recognize "red flags"? Does the hiring process include contacting applicable physical therapy licensing boards and looking up the applicant in the National Practitioner Data Bank? (See resources box on page 37.) If answers to any of these questions falls short of a resounding "yes," the practice has work to do.

* Employee orientation and oversight. This case, like the first, illustrates the importance of properly orienting and overseeing all employees and contracted personnel. Responsible practices ask: How are employee competencies established--particularly those of people providing services offsite? Is there a mechanism for seeking patients' and clients' feedback on the care they have received? (Many general and physical therapy-specific resources are available to help ensure the effectiveness of orientation and oversight policies, processes, and programs. See resources box.)

* Disclosure. It appears that the physical therapy practice in this case was the victim of poor background reporting by at least some of the PT's past employers, regardless of the ability or thoroughness of the person or people conducting the background checks. What is not clear is why this was the case. This scenario emphasizes the importance of keeping thorough employee records--including reasons for dismissal--and ensuring that those fielding background requests are sufficiently knowledgeable to do so and to reference all pertinent records. For guidance on ethical obligation to report unprofessional behavior, consult the April 2002 opinion of the APTA Ethics and Judicial Committee mentioned in the resources box on page 29. For information on legal obligation to report any such behavior, contact the Office of Counsel at APTA.

It is clear from these cases that properly managing non-clinical risk requires that owners, managers/supervisors, and administrators of PT practices of all sizes review and evaluate existing personal management plans and establish or modify paperwork, policies, and programs as necessary to maximize safety and minimize potential for incidents with serious human and economic consequences.

Resources

APTA. Care documents available at www.apta.org (click on "About APTA") include the APTA Vision for Physical Therapy 2020, the Code of Ethics, the Guide for Professional Conduct, and the Standards of Practice and the Criteria. Specific passages applicable to the cases profiled in this column include Principle 9 of the Code of Ethics ("A physical therapist shall protect the public and the profession from unethical, incompetent, and illegal acts") and Standards of Practice regarding administration of the physical therapy service (including establishment of written "personnel-related policies," position descriptions, and staff orientation procedures).

Additional resources from APTA include:

* Goals That Represent the 2004 Priorities of the American Physical Therapy Association. (Click on "APTA Governance" and "Goals and Mission" under "House of Delegates Policies.")

* PT articles. "Making the Match: A Look at the Many Aspects of Contracting" (November 2002) is available at www.apta.org. (Click on "Publications.") Other pertinent PT articles include "A Risk Consideration for Contract Staffing" (June 2000) and "Impacts and Implications of Employer Liability in a Physical Therapy Practice" (November 1998).

* Other APTA publications. These include Business Skills in Physical Therapy: Legal Issues, A Normative Model of Physical Therapist Professional Education: Version 2004, the Guide to Physical Therapist Practice, Revised 2nd ed, and Risk Management for Physical Therapists: A Quick Reference. (Click on "Store:")

* Ethics and Judicial Committee opinion. An opinion from April 2002 that is available by searching APTA's Web site covers reporting obligations with respect to "unethical, incompetent, or illegal acts."

* Procedural Document on Disciplinary Action. This document, BOD 03-04-1123), is available on APTA's Web site.

* Legal aid. It may be helpful to consult an attorney familiar with state employment law and requirements. APTA members can get tips on connecting with a local attorney by searching membership benefits and services on the Association's Web site.

APTA chapters. Both the Health Policy and Administration Section and the Private Practice Section offer publications specific to business aspects of running a physical therapy practice. For additional information, visit www.aptahpa.org and www.ppsapta.org, respectively.

Federation of State Boards of Physical Therapy. Go to www.fsbpt.org and click on "Licensing Authorities" for contact information for each state board.

National Practitioner Data Bank. Go to www.npdb-hipdb.cam for help in checking the background of prospective employees. The NPDB describes itself as "primarily an alert or flagging system intended to facilitate a comprehensive review of health care practitioners' professional credentials."

The information presented here is not to be interpreted as specific legal advice for any particular provider or practice. Questions about the legal implications of matters related to personnel management--paperwork, policies, and programs--should be directed to legal counsel retained by the provider or practice.

Rita Arriaga, PT, MS, is an associate clinical professor in the Graduate Program in Physical Therapy and the director of rehabilitation services at the University of California, San Francisco, and is a former chair of APTA's Committee on Risk Management and Member Benefit. She can be reached at 415/476-3453 or [e-mail].

Do you have risk-management questions or concerns? Insights into what PTs need or want to know will help APTA educate members about the types of incidents occurring in the workplace and about appropriate risk-management techniques. Contact Jennifer Baker, director of APTA Risk Management and Member Benefit Services, at 800/999-2782, ext 3145, or [e-mail].