Tort-Proofing Your Practice, Part III: Business Torts

Part III in a four-part part series. Part I addressed premises negligence, while Part II addressed provider negligence (malpractice). Part IV will address another type of potential liability, strict liability.

I remember one Christmas when I was a PT squirt, newly hatched from school, quite full of my own self-importance. I was home for the holidays in Tennessee, sitting around the kitchen table with the folks. I recall flipping through the phone book, checking out how many PT practices there were in the area. I was soon drawn to the chiropractic section and I'm here to tell you, it took a while to flip through the pages. I couldn't believe how many there were in my little town. But the part that lit my fire (and made me do something I soon regretted) was how many of those chiropractors advertised physical therapy.

"Why, I bet they don't even have a physical therapist on staff. That's fraud!" I did not say, but thought quite loudly. "I'm going to call and check." Not realizing the reality of Star-69 caller identification, I embarked on this task with a singleness of purpose. "I shall start with the 'A's."

My first call netted me a receptionist. At first she was quite kind with me, but my questions soon aggravated her sensibilities. I asked her if her office offered physical therapy services. She said yes. I asked who performed their physical therapy services. She said the chiropractor. I gently redirected her with a question something like "No, who is the licensed physical therapist on staff who performs the physical therapy?" She asked who was calling and I hung up.

Ten minutes later the phone rang. Mom answered, listened, and then silently handed the phone to me. There was a chiropractor on the line who wanted to speak with me.

Business Torts: What are They?
Before you take to the phones to conduct your own poll, take a seat and learn a little bit more than I knew about business torts. In common language, we might use words like fraud and misrepresentation interchangeably, but legally, they don't mean exactly the same thing.

Business torts include three categories:

1. Fraud;

2. Deceit;

3. Misrepresentation.

Fraud is the worst of the bunch. According to Black's Law Dictionary, fraud is "An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right."1 Typically, fraud results in the loss of money or property by a victim.

In fraud, the guilty party makes a false representation (such as claiming to have the cure to cancer) to a "victim"; the victim then performs some action (such as handing over all his money); and then the victim then gets hurt by this action (he loses all his money and does not receive a cure in return).1

In deceit and misrepresentation, the victim is still deceived, but this deceit does not necessarily result in the loss of money or another valuable. According to Black's, deceit is "A fraudulent and deceptive misrepresentation, artifice, or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon."2 Deceit still results in injury to the victim.

In contrast, misrepresentation is just an untrue statement of fact. It does not necessarily result in injury. Colloquially, 'misrepresentation' is understood to mean a statement made to deceive or mislead.3

So, you may be asking, are the chiropractors who advertise physical therapy guilty of fraud, deceit or misrepresentation? Well, maybe not. In many states, chiropractors have the legal authority to use the term "physical therapy" to describe the modalities they incorporate into their treatments. For example, in Tennessee (the state in which I conducted my short-lived poll) the state PT practice act states that "Nothing in this chapter shall be construed as restricting a person licensed or certified under any other law of this state from engaging in the profession or practice for which the person is licensed or certified; provided, that the person does not claim to be a physical therapist, a physical therapist assistant or a provider of physical therapy... Nothing in this chapter shall be construed as restricting persons licensed under any other law of this state from performing physical agent modalities for which they have received education and training."

Note that in Tennessee's case, the legal prohibition is applied to both the terms "physical therapist" and the provision of "physical therapy." However, if the state's practice act failed to specifically prohibit use of a term, the state surgeon general can be called on to make an "interpretation" of the language of practice acts. Keep in mind that these interpretations are not legally binding, but rather opinions which are weighted heavily by the courts. At that point, if the state determines that the use of the term "physical therapy" is restricted (or if the state practice act prohibits the use of the term outright, like Tennessee), the use of the term by another professional may well be a case of deceit or misrepresentation.

Of course, physical therapists and PTAs are not exempt from similar fraudulent or deceitful shenanigans. It may not be too long until a newly graduated chiropractor calls to take a poll on whether my PT clinic offers "chiropractic manipulation." In anticipation, I believe I'll install Star-69 on all incoming lines.

Disclaimer (Ah! The irony)
The information presented in this article is meant to be a summary and educational in nature. It is not meant to serve as a substitute for legal advice.

1. Black's Law Dictionary 660 (6th Ed. 1990).

2. Black's Law Dictionary 405 (6th Ed. 1990).

3. Black's Law Dictionary 1001 (6th Ed. 1990).

4. Tennessee Chapter 13: Occupational and Physical Therapy Practice Act (1999). Part 3: Licensure of Physical Therapists and Assistants. Tenn. Code Ann. 63-13-305.

Andrea Salzman is the owner of two businesses, the Aquatic Resources Network and Concepts in Physical Therapy. She rarely, if ever, makes calls asking other health care professionals if they have Prince Albert in a can. She may be reached at (715) 248-7258 or via e-mail at asalzman@aquaticnet.com


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