Vol. 12 Issue 10
PTA Liability Are You Covered?
For PTAs in unusual roles, professional liability may not be enough
PTAs who've read previous ADVANCE articles on insurance coverage know that while lawsuits against therapists and assistants aren't common, all health care professionals operate under some level of risk, and the safest route is to have a strong liability insurance plan in place. After all, legal fees to defend against a malpractice suit could be as high as $500 per hour, and with professional reputations and personal aspects at stake, adequate coverage is key. What assistants may not know, however, is that those risks escalate substantially when they operate as ATCs, massage therapists (MTs) or other professionals, or when they own their own private practice.
"Even when PTAs are members of one profession, I think that many times they may not consider their scope of practice, liability insurance and malpractice issues," said Laurie Walsh, Esq., PT, associate professor at Daemen College, Amherst, NY. "Some PTAs might assume that insurance is insurance, and as long as they're practicing [techniques] that are included within their scope of practice they'll be covered, but that's not necessarily the case."
PTAs who assume they are covered could be in serious trouble in the unfortunate case of a practice act violation or an injured client. Likewise, the growing number of PTA practice owners are responsible for not only their own actions, but also the actions of PTs, other PTAs and all support personnel who are under their employ.
So what coverage does a PTA need?
Personal Liability Insurance
Although PTs' and PTAs' chances of being sued are minimal when compared to physicians and surgeons, malpractice suits for slips and falls due to improper supervision, refractures and burns from modalities such as electrical stimulation and hot packs are not as unusual as one might think. One lawyer who spoke with ADVANCE said that there have been a total of 31 cases of PT malpractice that went to court since 1972. That number may sound small, but it is substantially higher than most other allied health care professionals, and most malpractice suits are settled out of court and are therefore off the record. To add some perspective, there is only one case of occupational therapy malpractice on legal record.
Obviously, avoiding suits by following a clear set of risk management procedures is the best-case scenario, but safety is no replacement for liability insurance. The two broadest categories of liability are occurrence plans and claims made. While both policies will cover assistants for both indemnity and the cost of legal services, the period of time covered by each plan can vary.
"Occurrence-based plans mean that for the particular period of time you have the policy in force, the insurance will cover you for any event that happens during that period of time, even if the claim is made after the policy is terminated," explained Anne Novick Branan, JD, PT, a health law attorney with Broad and Cassel, Fort Lauderdale, FL. For example, a PTA might take out an occurrence plan that covers the 1998 calendar year. If a malpractice claim is filed based on any event that happened during that year, even if the claim is filed years later, the insurance policy will cover it. On the other hand, claims made policies cover the purchaser only for claims filed during the time the policy is in effect. So in the example above, if the policy covers the 1998 calendar year, the PTA would only be covered against suits that are filed that calendar year, regardless of when the suit is actually filed.
Considering most malpractice claims are filed months or even years after the alleged malpractice took place, Branan recommended occurrence coverage. Claims made policies are cheaper, but in order to extend them beyond the length of the policy, practitioners need to also purchase a "tail." "If you go out of business or stop practicing for some reason and don't continue insurance, then it's a good idea to buy a tail," she said. "But [tails] are not cheap... so the global cost of [a claims made policy] may not be cheaper than the cost of an occurrence policy."
PTAs in Other Professions
Even with a personal liability insurance plan in place, PTAs who are considering work as a massage therapist or another non-PT health professional (referred to as "ancillary providers" for the remainder of this article) should always begin by contacting their state licensure board to find out if they're legally qualified to deliver those services in their state. While PTAs are obviously trained to deliver massage, some forms of sports rehab and many techniques common to ancillary providers, some states do require certification or credentialing in that secondary role.
"In New York, for instance, there are separate practice acts for physical therapy, massage therapy and athletic training, so if PTs or PTAs want to practice as MTs or ATCs they need to acquire those credentials," Walsh said. "PTAs in NY can offer massage under the supervision of a PT, but they can't operate or advertise as massage therapists unless they've earned those credentials. PTAs who do are infringing on massage therapists' scope of practice."
If state law does permit PTAs to practice an ancillary profession without additional credentials, or if PTAs become credentialed in massage therapy, athletic training or another profession, they should always keep informed consent and reimbursement issues in mind. Patients may not have a clear understanding of the differences between various professions, so it's up to the assistant to explain the services they're offering and their role at the time, PTA or otherwise. And since some insurers will not reimburse for services provided by an ancillary provider, PTAs should never bill for physical therapy when they're acting as an MT, ATC or another professional, since this may constitute insurance fraud.
PTAs as Practice Owners
Although it's less common, more PTAs are opening their own businesses and moving into the private practice arena, and in these cases assistants will need much more insurance. Common law holds that if an individual is doing a task at the direction of an employer, they are an "agent" of that person. In other words, PTAs who operate as practice owners are responsible for the actions of their employees, and also run financial risks relating to their business. Although the finer points of insurance packages differ, there are five major types of insurance that no health care practice owner should operate without:
1.ÊWorkers' Compensation: Practice owners could be held liable for injuries their employees incur during the scope of their employment, even if they aren't hurt during direct patient care. Many states require business owners to purchase workers' compensation insurance, and the consequences for not having coverage can be steep.
2. Professional Liability: All PTAs should have professional liability (PL) insurance, but practice owners should also have a PL policy in place for every employee who is in any way involved in patient care, to cover the possibility of a malpractice suit. Owners should also take out a PL policy on the practice itself, since businesses are usually named in suits along with the treating PT or PTA.
3. General Liability: General liability (GL) policies cover all non-care related matters, for example, a patient who slips on an icy walkway or slippery floor, for which the owner could be held liable.
4. Property Coverage: In addition to workers' compensation and liability policies, practice owners should also have property coverage in place to protect them from financial risks if their equipment or the clinic itself is damaged. Owners can supplement this policy with business interruption coverage, which is insurance against loss of income in the case that the practice itself is forced to temporarily close. For example, if a fire damages a clinic to the point where it will close for several months, property coverage would insure the owner for the cost of the damage, but only business interruption will account for the lost income while the building is being repaired.
5. Employment Practice Coverage: A new form of insurance, employment practice coverage, covers legal expenses for practice owners who are involved in wrongful termination, discrimination and harassment cases, areas not covered under FL policies. This form of insurance is expensive, but considering the cost of hiring an attorney to defend these cases, it could be worth it. n
Mike Le Postollec is on staff at ADVANCE and can be reached at firstname.lastname@example.org.