Liability for Intentional Conduct in Torts and Employment Law

Intentional tort

An intentional wrong committed against a person or their property

Requirements of intentional tort

Requires an injury; this can occur if the person causing the injury didn't mean to do so, BUT knew their conduct had a high risk of causing injury; no malicious intent; can be an act or omission

Assault

When a person 'reasonably anticipates, or has apprehension or fear about an impending battery'

Battery

'Unjustified and unexcused harmful, offensive, or otherwise impermissible INTENTIONAL CONTACT'

Defenses to Assault & Battery

Consent- not valid in healthcare; self-defense or in the defense of others

Defamation

Untrue communication that hurts a person's reputation

Slander

Verbal; even on the phone

Libel

Transmitted by all other means such as a recording

Business Disparagement

False communication that hurts one's business reputation (healthcare)

Defenses to defamation

Truth; privilege; constitutionally protected speech; reporting statutes and requirements

False Imprisonment

Occurs when a healthcare provider intentionally, unlawfully restricts a person's movement

Fraud

Intentional false representation or concealment designed to deceive another person to their detriment

Physician self referral

Prohibited by Stark law

Stark law

Applies to Medicare and Medicaid patients; it is a designated health service

Types of Invasion of privacy

Unreasonable intrusion; false light publicity

Unreasonable intrusion

A defendant must intrude physically or otherwise, upon the selection or solitude of another person in a way that is deemed highly offensive

False Light Publicity

A defendant violates a plaintiff's privacy right and disseminates private information about the client to a third party

Misappropriation

Unauthorized use of a plaintiff's name and/or likeness for the defendant's personal gain

Public Disclosure of Private Facts

The defendant publicizes information about a person that is of a personal nature; highly offensive from the viewpoint of an ordinary, reasonable person; the subject matter of the disclosure is not legitimately in the public interest

Sexual Misconduct

A therapist has a fiduciary responsibility to maintain a professional relationship and not allow an intimate personal relationship to develop

Two classifications of sexual abuse in healthcare

Sexual assault and battery; consensual abuse

Consensual Abuse

Consent by the patient has no real meaning in the law

Transference of emotions

The inherent vulnerability of patients dependent on providers for care and support, and the providers' fiduciary duty of good faith and trust.

US employment law

Involves various statutory laws, regulatory laws, and case law.

National Labor Relations Board (NLRB)

Enforces employees' rights to organize and use unions as bargaining representatives.

US Department of Labor (DOL)

Helps to safeguard employee wages, working conditions, advancement opportunities, and work-related benefits.

"At will" employment

Means employees and employers are free to terminate employment at any time.

Exceptions to "at will"

Includes implied promises in employee handbooks, dismissal for whistleblowing, fraudulent or malicious dismissal, dismissal for refusing to do something illegal, and dismissal due to illegal discrimination.

Whistle-blowing

Making a good-faith report of a suspected violation of law to appropriate authorities.

Employment contracts

Formed when one person extends an offer that is accepted by another person, and is something of value provided for in the contract, such as compensation or bonuses.

Employment liability

Can be directly liable for their actions and indirectly liable for the actions of their employees based on tort law for wrongdoing or injury to another person, resulting in a civil case.

The tort of Negligence Hiring

The employer's duty to protect the employee or third parties.

Defense: Qualified Privilege

Communicating information if it serves legitimate business purposes, and the employee believes the statement is true.

Employee's Duty of Loyalty

An obligation not to steal or disclose the employer's confidential or proprietary information.

Employee's Right to Privacy

As long as the employee is notified, the employer can monitor company email and equipment.

Age Discrimination (ADEA)

Prohibits employee-related discrimination by private and public sector employees against workers over 40.

Discrimination based on disability (ADA Law)

Clear and comprehensive prohibition of discrimination based on disability.

Civil Rights Act of 1964 & 1991

Prohibits discrimination based on race, color, religion, sex, or national origin.

Disability defined

Includes a person with a physical or mental impairment that substantially limits one or more major life activities, a person with a record of such impairment, and the person regarded as having such an impairment.

ADA

Established that 'a qualified individual with a disability' means a job applicant or employee who can perform essential job functions, with or without reasonable accommodation.

Reasonable accommodation

Defined as any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, perform job functions, and receive benefits and privileges.

Element of ADA: Undue hardship

A situation where the accommodation is excused because it would disrupt the company's ability to function or would be too costly for the company to modify based on its size and financial situation.

ADA statement on undue hardship

An organization can hire or promote the 'best qualified,' however, the law mandates that disabled applicants and employees be afforded equal consideration.

Examples of those excluded from the definition of 'disabled'

Includes current illegal drug users, compulsive gamblers, kleptomaniacs, pyromaniacs, pedophiles, exhibitionists, voyeurs, homosexuals, bisexuals, and persons with gender identification and miscellaneous sexual behavior disorders.

Civil Rights Act of 1964, Title VII

An employer cannot discriminate against any of the protected classes based on an applicant's or an employer's race, ethnicity, religion, sex, and national origin.

Protected classes

Meaning that employers cannot make decisions on hiring, firing, or other employment actions based on protected characteristics.

Why does patient consent mean nothing?

Because of the transference of emotions, the inherent vulnerability of patients dependent on providers for care and support, and the providers' fiduciary duty of good faith and trust.

At Will Employment

Means employees and employers are free to terminate employment at any time.

Exceptions to At Will Employment

Includes promises implied in employee handbooks, dismissal for whistleblowing, fraudulent or malicious dismissal, dismissal for refusing to do something illegal (wrongful discharge), and dismissal due to illegal discrimination.

True

Employers cannot hack into employees' personal emails.

Examples of Reasonable Accommodation

May include acquiring or modifying equipment, job restructuring, reassigning to a vacant position, adjusting or modifying examinations, training materials, or policies, providing qualified readers and interpreters, and making a workplace readily available to and usable by people with disabilities.

Examples of Those Excluded from Definition of 'Disabled'

Current illegal drug users, compulsive gamblers, kleptomaniacs, pyromaniacs, pédophiles, exhibitionists, voyeurs, homosexuals, bisexuals, and persons with gender identification and miscellaneous sexual behavior disorders.

Two Ways Discrimination Occurs According to the Civil Rights Act of 1964

1. Disparate treatment 2. Disparate impact.

Disparate impact

Adverse events that impact the employment rights of protected class members

Discriminate treatment

Intentional wrongful employment discrimination

Discriminate impact

Adverse events that impact the employment rights of protected class members

Unintentional

EEOC

Equal Employment Opportunity Commission

Created by Congress in the Civil Rights Act of 1963; enforces and administers ADA, ADEA, Equal Pay Act of 1963.

Chairman Term

The chairman serves for a 5-year term.

Main Goal of the EEOC

To investigate complaints of employment discrimination against private and public entities.

Drug-Free Workplace Act of 1988

Allows employers to perform drug testing and requires anyone who enters into a contract with the federal government over $25,000 in value to do a drug education program, post-prohibition of drug use or possession in the workplace, and notify the federal agency.

Family and Medical Leave Act of 1993

Requires 12 weeks of unpaid benefit-protected leave per year to eligible persons after childbirth, adoption, and personal/family medical illness.

Occupational Safety and Health Act of 1970

Established the requirement of workplace safety and health standards.

Pregnancy Discrimination Act of 1978

An employer cannot discriminate against an employee due to pregnancy, childbirth, or related medical conditions.

Workers Compensation Laws

Provides protection for individuals who are injured on the job.

Sexual Harassment

A form of sexual discrimination that violates the Civil Rights Act of 1964; defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Examples of Sexual Harassment

Unwanted sexually related comments about a person or their body parts, soliciting sexual relations, inappropriate touching.

Quid Pro Quo

A situation in which a victim's response to sexual harassment is the basis for employment-related decisions.

Hostile Work Environments

Sexual harassment interferes with the victim's or another person's work performance.

Responsibilities of Management in Sexual Harassment

Educating employees, enforce sanctions if it occurs, informing employees of their right to file a charge with the EEOC.

OT/OTA Relationship

OTA ed requirements include an Associate's or bachelor's degree from an ACOTE-accredited school, two periods of 8-week level 2 Fieldwork, passing the NBCOT Exam, and state licensure.

OTA Role

To deliver OT services under the supervision in partnership with an OT; OTA can administer standardized and nonstandardized screening and assessment needs under supervision.

AOTA's Guidelines for Supervision

State laws supersede this document that outlines our SCOPE of practice; Medicare and other funding sources put regulations on the OTA role in service provision and what supervision must take place.

Role of OT in Initial Eval

Initiate eval, decide if the OTA's services are needed and what assessments need to be performed, can delegate the OTA to collect data from assessments.

Supervision of OTA

Supervising OT must be licensed in the same state, includes multi-state licensure and telehealth.

Extent of OT Supervision

The extent of OT supervision is based on state laws and regulations.

Number and diversity of the client population

Factors influencing the supervision of OTAs.

Complexity of the client and intervention

A consideration in determining supervision needs.

The skill level of both the OT and OTA

Affects the dynamics of supervision.

Type of practice setting

Influences the supervision structure.

Requirements of that setting

Specific regulations that must be adhered to.

Any funding or state regulations

Financial and legal constraints impacting supervision.

The number of OTAs an OT can supervise at one time

Regulatory limit on supervision capacity.

Discharge collaboration

OTA cannot independently decide to discontinue treatment.

OTA can collect data for use in discharge

Role of OTA in discharge planning.

Delegation

OT is responsible for ensuring the level of competency in OTA.

Service competency

Having the skills necessary to provide identical performance of an intervention technique as the supervising OT would provide.

OT roles in treatment

Responsible for reviewing the client's progress; determining changes in the Plan of care, and discharge.

Ensuring that all duties delegated to other OT personnel

Must be congruent with their credentials, qualifications, experience, competencies, and scope of practice.

OT/ OTA Relationship

Collaborative with mutual respect and knowledge of each other's experience, competence, and learning style.

Knowledge of State Laws

Essential for effective supervision.

Constructive feedback

Important for the development of both OT and OTA.

Defined meeting times

Set by OT to ensure effective communication.

Purpose of supervision

The process aimed at ensuring the safe and effective delivery of occupational therapy services and fostering professional competence and development.

Definition of OTA

An individual who meets the qualifications and requirements as set forth in subchapter 4 of these regulations, and has been issued by the department.

Responsibilities of OTA

Includes assisting with evaluations, performing treatment as delegated by OT, and notifying OT of changes in the patient's status.

Direct supervision

Supervision in which the OT and OTA, and patient/client are present face-to-face for immediate availability.

Indirect supervision

Supervision where the OT has face-to-face contact with the patient/clinic once every 7 therapy visits or 21 calendar days.

A supervisory visit must include

Review of activities, assessment of outside resources, documentary evidence, and discharge planning.