LEGAL ISSUES AND PHYSICAL THERAPY PRACTICE

Physical therapists and physical therapist assistants practice within a society governed by state and federal law. Laws flow from ethical principles and are limited to specific situations and codified by detailed language. These rules of conduct are formulated by an authority with power to enforce them. The state of California has the power to create and enforce laws governing the profession of physical therapy, including licensure.

SOURCES OF LAW

	Statutory	Administrative
Source	Laws passed by legislative bodies of federal, state, and local governments	Executive powers, delegated by the legislative branch
Functions	Protects and provides for the general welfare of society	Carries out special duties of various agencies
Example	The state legislature passes a Physical Therapy Practice Act and establishes the Physical Therapy Board of California, with the details described in the state’s legal statutes.	The Physical Therapy Board of California adopts rules governing the licensure and standards for the practice of physical therapy within the state, as described in the state’s administrative code.

Civil Vs. Criminal Law

There are two major divisions of law: civil and criminal.

• Civil law pertains to the private rights of one or more individuals and provides a means by which individuals may seek to enforce their rights against other individuals. Some types of civil law include contract law, wills, family law, and trusts. Civil litigation that involves injury (due to assault, battery, negligence, professional negligence, etc.) is called a tort.
• Criminal law regulates the conduct of the individual in order to protect the public and society as a whole. Criminal prosecution is initiated by the government as opposed to an individual. The main types of criminal offenses are felonies, misdemeanors, and infractions. The primary goal of criminal litigation is to determine whether to punish the defendant.
  (St. Francis School of Law, 2021)

It is a criminal offense to violate provisions of California’s Physical Therapy Practice Act. When individuals or agencies believe a physical therapist or physical therapist assistant has violated a provision of the Practice Act, they may complain to the Physical Therapy Board of California. The Board will investigate the allegations, and if sufficient evidence is found to support the complaint, state attorneys may file a complaint against the licensee.

TYPES OF LAW

(St. Francis School of Law, 2021)
Civil Law
Function/Goal	To redress wrongs and injuries suffered by individuals
Types	Contract law Wills Family law Trusts Torts (involves injury due to assault, battery, negligence, professional negligence, etc.)
Proof	By preponderance of evidence; adjudicated by a judge or jury; a jury decision need not be unanimous
Criminal Law
Function/Goal	To regulate individual conduct for the good of society as a whole; to punish the defendant (if found guilty)
Types	Felonies (most serious crimes such as manslaughter, murder, rape, etc.) Misdemeanors (lesser offences such as simple battery, first DUI offense, violation of licensed professional practice act, etc.) Infractions (petty-level crimes usually not punishable by imprisonment, such as speeding, parking violations, etc.)
Proof	Beyond a reasonable doubt; jury decision must be unanimous (except in Oregon)

Physical Therapy Board of California

The Physical Therapy Examining Committee was created in 1953, forming what is now known as the Physical Therapy Board of California (PTBC). The stated mission of the PTBC is “to advance and protect the interests of the people of California by the effective administration of the Physical Therapy Practice Act.” The PTBC is legislatively charged with protecting the public from any incompetent, unprofessional, and criminal practice of physical therapy through its licensing, regulatory, and disciplinary functions.

The PTBC is one of approximately 30 existing regulatory entities under the organizational structure of the Department of Consumer Affairs (DCA). The PTBC and DCA have a close and cooperative relationship. The PTBC licenses and disciplines physical therapists and physical therapist assistants. The PTBC provides three principal types of consumer services: verification of education and background prior to licensure, provision of information about the practice of physical therapy by physical therapists and physical therapist assistants, and the investigation of complaints made against physical therapists and physical therapist assistants (State of California, 2024a).

Physical therapists must practice within the scope of physical therapy practice defined by the state’s Physical Therapy Practice Act (PTPA) (see “Resources” at the end of this course). California’s PTPA includes rules and requirements for educational institutions and practitioners regarding:

• Scope of practice
• Licensure
• Educational standards
• Enforcement
• Offenses

In the United States, physical therapist licensure is required in all 50 states as well as in the District of Columbia, Puerto Rico, and the Virgin Islands. Licensure is required in each state in which physical therapists practice. All California physical therapy licenses must be renewed every two years, with licenses expiring on the last day of the licensee’s birth month. Practicing with an expired license is against the law. California requires the completion of 30 hours of continuing education in order for a licensee to qualify for license renewal, four of which must include basic life support and two of which must be completed in the area of ethics, laws, and regulation (State of California, 2024c, 2024d).

The PTBC holds responsibility for the investigation of complaints related to potential violations of the state’s Physical Therapy Practice Act. When individuals or agencies believe a physical therapist or physical therapist assistant has violated a provision of the act, they may complain to the Physical Therapy Board of California. The PTBC’s Consumer Protection Services Program staff review all such complaints in order to ascertain the nature of allegation, whether the complaint is within the jurisdiction of the PTBC, and if a violation of professional governance laws has occurred that would necessitate additional investigation. In the event of potential violation of laws falling within PTBC jurisdiction, allegations will be further investigated, which may result in charges being filed against the licensee in question (State of California, 2024b).

Types of complaints which may be reviewed by the PTBC may include:

• Substandard care (negligence, delayed treatment, etc.)
• Unlicensed practice (or aiding or abetting unlicensed practice)
• Sexual misconduct or harassment
• Unprofessional conduct (e.g., record alteration, breach of confidence, fraud, misleading advertising, arrest or conviction)
• Office practice (e.g., failure to provide medical records to patient, patient abandonment)
• Provider impairment (e.g., drugs, alcohol, mental or physical)
• Criminal offense conviction

The PTBC does not hold jurisdiction over disputes related to billing or fees, general business practices, or personal conflicts—unless a behavior in question impedes the safe delivery of health care services. The PTBC also does not assist with patient care coordination or provide financial compensation (State of California, 2024b).

A physical therapist or physical therapist assistant can be disciplined for a number of reasons. The most serious categories are:

• Sexual misconduct
• Gross negligence (an extreme departure from accepted standards of practice)
• Repeated negligent acts (negligent acts that are not an extreme departure from accepted standards of practice, but still negligent)
• Incompetence (performing procedures that are beyond their training or expertise or continuing to use a procedure that is unnecessary or obsolete)
• Aiding and abetting the practice of physical therapy (inappropriate supervision of PTAs and physical therapy aides)
• Billing fraud or dishonesty (billing for services not provided, filing fraudulent insurance claims)
• Convictions reported to the PTBC from the Department of Justice or other agencies (e.g., misdemeanors or felonies)
  (State of California, 2024e)

Civil Law and Physical Therapy Practice

(The information in this section is in no way intended to be a substitute for professional legal advice.)

Civil law is concerned with harm against individuals, including breaches of contract and torts. A civil action is considered a wrong between individuals. Its purpose is to make right the wrongs and injuries suffered by individuals, usually by assigning monetary compensation. It is important to be aware that an action can potentially be both criminal and civil in nature (St. Francis School of Law, 2021).

A contract is an agreement that is enforceable by law, created by oral or written consent of the parties. Contracts may include obligations imposable by law even if one or more parties are not aware of those obligations.

Breach of contract is a failure (without legal excuse) to perform any promise that forms all or part of a contract. This includes failure to perform in a manner that meets the standards of the industry or the requirements of any express warranty or implied warranty. One or both parties violating a written agreement (such as an employment agreement between a healthcare agency and a physical therapist) may constitute a breach of contract (Cornell Law School, n.d.).

A tort is a wrong against an individual. Torts may be classified as either intentional or unintentional.

• Intentional torts include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement.
• Unintentional torts are commonly referred to as negligence. In order to be successfully claimed, negligence must consist of four elements: duty, breach of duty, causation, and damages.
  (Cornell Law School, 2022a)

INTENTIONAL TORTS

Assault and Battery

Assault is doing or saying anything that makes people apprehend harmful or offensive contact without their consent. The key element of assault is apprehension of contact, for example, threatening to force a resistant client to get out of bed against their will.

Battery is touching a person without consent, whether or not the person is harmed. For battery to occur, unapproved touching must take place. The key element of battery is lack of consent. Therefore, if a man bares his arm for an injection, he cannot later charge battery, saying he did not give consent. If, however, he agreed to the injection because of a threat, the touching would be deemed battery, even if he benefited from the injection and it was properly prescribed (Cornell Law School, 2022a).

Except in rare circumstances, clients have the right to refuse treatment. Other examples of assault and battery are:

• Forcing a client to submit to treatments for which they have not consented orally, in writing, or by implication
• Moving a protesting client from one place to another
• Forcing a client to get out of bed to walk
• In some states, performing blood alcohol tests or other tests without consent

False Imprisonment

False imprisonment is a tort offense that involves restraining or confining a competent person against their will. Some examples of false imprisonment are:

• Restraining (physically, pharmacologically, etc.) a client for non–medically approved reasons
• Detaining an unwilling client in the hospital, even after the client insists on leaving
• Detaining a person who is medically ready for discharge for an unreasonable period of time
  (Cornell Law School, 2022b)

Defamation of Character

Defamation of character is communication that is untrue and injures the good name or reputation of another or in any way brings that person into disrepute. This includes clients as well as other healthcare professionals. When the communication is oral, it is called slander; when it is written, it is called libel. Prudent physical therapists: 1) record only objective data about clients, such as data related to treatment plans and 2) follow agency policies and approved channels when the conduct of a colleague endangers client safety (Cornell Law School, 2023).

Invasion of Privacy

Invasion of privacy includes intruding into aspects of a client’s life without medical cause. Invasion of privacy is a legal issue separate from violations of HIPAA’s privacy rule due to the fact that invasion of privacy goes beyond protected health information.

Fraud

Fraud includes deceitful practices in healthcare and can include the following:

• False promises
• Upcoding (such as billing group treatment sessions as individual therapy)
• Insurance fraud

Embezzlement

Embezzlement is the conversion of property that one does not own for their own use, such as when an employee appropriates funds from a business’s bank account (Cornell Law School, 2022c).

UNINTENTIONAL TORTS: NEGLIGENCE

It is the legal responsibility of all healthcare professionals to uphold a certain standard of care. This standard is generally measured against an established norm of what other similarly trained professionals would do if presented with a comparable situation.

Components of Negligent Care

In the case of negligent care, four components must be present in order to establish a successful unintentional tort claim:

1. Duty is established when a healthcare professional agrees to treat a patient.
2. Breach of duty occurs when a healthcare professional fails to act in a manner consistent with what another member of that health profession would prudently do in a similar situation. Breaches fall under three general categories:
   • Misfeasance occurs when a mistake is made (e.g., administering a treatment to the wrong patient unknowingly because the patient had the same or a similar name).
   • Nonfeasance occurs when a healthcare professional fails to act (e.g., not calling the paramedics when a physical therapist arrives for a home care evaluation and finds the patient lying on the floor after sustaining a fall or not reporting signs of abuse or neglect for a client currently receiving services).
   • Malfeasance occurs when the negligent action involves questionable intent (e.g., by physically pulling a resistant patient from bed by their wrists instead of using a gait belt, thereby causing bruises on the patient’s wrist).
3. Causation requires that an injury of ill-effect to the patient must be proven to have been a direct result of the action (or lack of action) taken by the healthcare professional.
4. Damages refers to the actual injuries inflicted by the accused for which compensation is owed.
   (Maloney Law Group, 2023; Osmond, 2023)