Application of the Locality Rule and Implications for Malpractice Actions Against Physical Therapists

Application of the Locality Rule and Implications for Malpractice Actions Against Physical Therapists ELLEN STEMAN FANTACI Physical therapists are becoming involved increasingly in malpractice actions. The number of such actions will likely increase as the profession moves toward specialized practice and practice without medical referral. This article is intended to clarify some of the major principles of negligence and malpractice law as they apply to physical therapists. There are few reported cases of malpractice involving physical therapists, but an abundance of cases involving physicians. The extent to which physicians and therapists have been treated alike in these past malpractice suits is examined. This article also discusses some of the potential legal implications of specialization and practice without referral and their effect on the physical therapist in general practice and the therapist practicing without referral. Key Words: Malpractice, Physical therapists. The practice of physical therapy has a significant impact on that of medicine, particularly rehabilitation medicine, and any negligence actions based on allegedly improper therapeutic intervention by physical therapists take the form of medical malpractice litigation. Insofar as physicians' experience in the United States is a valid model for what may occur in our physical therapy profession, one can expect the incidence of negligence actions against physical therapists will increase as the profession moves toward specialized practice and practice without referral. At present, there are few reported cases involving alleged negligence by physical therapists in the United States, and none involving physical therapist "specialists." This is probably because the concept of specialization by physical therapists is new and in the early stages of development. I believe that as standards of care for physical therapist specialists develop, courts will likely apply principles that are, in effect, identical to those used to establish standards of physician care. One purpose of this article is to clarify the principles of negligence in malpractice law as they apply to physical therapy. An additional purpose is to make therapists cognizant of their increasing legal responsibilities and the resulting liabilities as the profession moves toward specialization and practice without medical referral. Malpractice, as the term is used with reference to physicians, is defined as deficient or unskilled practice Mrs. Fantaci is Assistant Professor, Department of Physical Therapy, Louisiana State University Medical Center, School of Allied Health Professions, New Orleans, LA 70112 (USA). This article was submitted May 22, 1981, and accepted November 17, 1981. by the physician that results in injury to the patient. 1 Medical malpractice is a type of tort (a civil wrong independent of contract) that has been described as "a violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction." 2 Malpractice is based on negligence, which has been defined as "the omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do." 3 In all negligence actions, the plaintiff claims that 1) he was damaged in some way, 2) he was owed some duty by the defendant, and 3) such duty was breached by the defendant, causing injury to the plaintiff. The basic test for negligence that has evolved in case law is referred to as "the reasonable man rule": if a reasonable, prudent man would have avoided the difficulty, the defendant is considered negligent. The basic principles of negligence law apply in cases where a patient alleges a physician has in some manner been negligent in his actions with the patient. As a general rule, a physician or surgeon is only required to possess the skill and learning ordinarily possessed and exercised under similar circumstances by members of his profession in good standing. A poor result is not sufficient in and of itself to establish negligence, because the law does not demand infallibility of a medical practitioner. The physician is to exercise ordinary and reasonable care and diligence and apply his best possible judgment to the case. The requirements of skill and knowledge may result in a physician or surgeon being liable for failure to know 604 PHYSICAL THERAPY

what he is doing, while the diligence requirement may result in him being liable if he knows what to do, but he either fails to do it or he does it carelessly. 4 A common defense to an accusation of negligence is to show that the method used by the physician was a customary and approved practice in the community involved. However, in recent years, courts have begun to realize that local custom itself may be negligent, and "the fact that negligence is widespread is no defense." 4 This implies that a physician is responsible, under the concept of due care, to keep abreast of new developments in medicine. In law, negligence is not limited to situations involving active carelessness. In a negligence action against a physician or other professional, such as a physical therapist, a "reasonable man" is defined as a "duly careful member of the profession." 4 A physician who does not have the training to perform a given procedure may be extremely careful as he deals with a patient, and in fact his care may meet the standards of a duly careful member of his profession, but he may still be negligent if he does not refer the patient to a specialist. Consultation may be required for treatment planning, and it may be required when the physician knows, or should know, that his care is ineffectual or that he is unable to solve the problem. 4 The standard of care by a nonspecialist physical therapist versus that of a specialist will be discussed later in this article. LOCALITY RULE General Practitioner Until recently, comparisons of due care exercised by one physician in relation to another in malpractice actions were restricted to the physician's geographical area. This "locality rule" stated that "a medical man has the obligation to his patient to possess and employ such reasonable care as is commonly had and exercised by reputable, average physicians in the same general system or school of practice in the same or similar locality." 5 The locality rule was first developed in the United States during the latter part of the 19th century. It required that an expert witness called to testify at a physician's trial must have practiced in the same community as the defendant. The theory behind this rule was that physicians practicing in a rural area should not be expected to be as well-trained and informed as physicians in an urban environment. The rule was designed to protect the rural and small town practitioner who did not have access to the latest medical knowledge, facilities, and equipment. Interpretation of the locality rule was expanded during the 20th century to include "same or similar localities," and sometimes entire states. 5 Although some states still emphasize geographic proximity in determining the standard of care required to avoid negligence, most jurisdictions hold that the local standard of practice is but one factor presented for the jury's consideration, and that it does not in and of itself determine the presence or absence of negligence. 4 Reasons for lessening the locality rule's importance in determining negligence can be summarized as follows: 1. Nationwide advances in medical training and improvement in communication and transportation. 2. Stronger bases of training for today's practitioners. 3. The proliferation of medical literature, seminars, and conferences enhancing and updating the knowledge of practitioners in all communities. 5 As stated by the Supreme Court of Florida in Montgomery vs Stary, "The [locality] rule... has lost much of its significance today with the increasing number and excellence of medical schools, the free interchange of scientific information, and the consequent tendency to harmonize standards throughout the country." 6 Specialists The apparent trend in determining the standard of care to which a general practitioner will be held is away from reference to geographic considerations. Many states that still apply some form of locality rule to general practitioners have abrogated it completely for specialists in favor of a test based on national standards. Who is a specialist? For a physician it has long been held that "the question whether the defendant (physician) was a specialist, while one of fact is primarily for his own determination, with the result that if he holds himself out as a specialist it becomes his duty to bring his patients that degree of skill that such a practitioner assumes to possess." 7 The specialist is one "who devotes special attention to particular organ or body regions and to the diagnosis of injuries, ailments, and diseases of the area." 8 Physicians have not been required to be board certified to be considered specialists. The determination of who is a specialist is subject to the particular facts of a case. In LeBlanc vs Lentini, the defendant was both a general practitioner and a surgeon. 9 He was a fellow of the International College of Surgery, but he was neither a member of the American College of Surgeons nor board certified. The court ruled he was not a specialist; rather, he was a general practitioner who performed a large number of difficult surgeries but did not practice any particular type of surgery. In this case, the defendant was held to the standard of the locality rule for general practitioners. If the facts had been slightly different, if he had held himself out to be a specialist, he might Volume 62 / Number 5, May 1982 605

have been deemed a specialist and been subject to different standards of care. Duty of Specialists One precedent-setting case in the 1960s for eliminating the locality rule for general practitioners and specialists was Brune vs Belinkoff. 10 This case involved an action against a specialist in anesthesia. The court abandoned the locality rule for specialists and suggested a nationwide standard for both specialists and general practitioners: The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession....one holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession. 10 The reasons for requiring a standard of care for specialists that is not limited to the local standard prevailing in the specialist's community are well stated in Naccarato vs Grob: The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a specialty. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a specialty. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist's care nor the competence of an expert's testimony. 11 Discussion of standards of care for physicians who are specialists can be found in professional medical literature. 4 CLINICAL SPECIALIST MOVEMENT IN PHYSICAL THERAPY In 1975, the American Physical Therapy Association House of Delegates charged the APTA Board of Directors with establishing a Task Force on Clinical Specialization. 12 This was the first step toward implementing the "Policy Statement on Recognition of Specialists in Physical Therapy." Recognition of clinical specialization will be realized through the implementation of the "Essentials for Certification of Clinical Specialties in Physical Therapy." The Essentials present the resources and processes necessary for certification of advanced clinical competence. The preamble of the 1980 revised Essentials discusses the origins of the specialization trend and states that "through collective and individual efforts, the physical therapy profession has continued to advance the clinical knowledge and practice of physical therapy. In that way, advanced clinical competence is based on, and evolves from, the current general practice of physical therapy." 13 The revised Essentials assert that advanced clinical competence (specialization) "responds to a special area of patient needs" and "requires competence exceeding that specified for the entry level physical therapist." 13 According to this document, advanced clinical competence will be determined by competency-based evaluation. Among other things, the evaluation for certification will require that the applicant meet the highest standards identified for his specialty area. The 1977 House of Delegates recognized four potential areas of advanced clinical competence. These areas are pediatrics, cardiopulmonary, orthopedics, and neurology. Representatives from the cardiopulmonary and pediatric areas petitioned the APTA Board of Certification of Advanced Clinical Competence, the governing body for the approval and certification of specialists, for approval of their respective competency statements in June 1981. The process for certifying a person as a cardiopulmonary or pediatric specialist is now in the development stage. Representatives of the two other specialty areas noted above are expected to petition the Board of Certification of Advanced Clinical Competence for approval of their respective competency statements in the near future. POSSIBLE IMPACT OF THE LOCALITY RULE ON PHYSICAL THERAPISTS Physical therapy has long been legally recognized as practice of medicine in a limited scope. 14 In Sprague vs Spencer, a case involving physical therapists, the court construed the word "physician" to mean any person authorized to treat diseases or injuries or their consequences. 15 Although malpractice litigation cases involving physical therapists are not common, the potential for such lawsuits should not be ignored. Several instances of actions brought against physical therapists for injuries resulting from therapeutic treatment have been described, 16 and there has been an increasing willingness on the part of patients to commence lawsuits in recent years. Litigation against physical therapists that has been reported indicates that the rules, principles, and standards governing malpractice actions against physicians and surgeons have generally been applied in suits for injuries allegedly caused by the negligence of physical therapists. 14 This means that in those states that recognize a locality rule for physicians, the locality rule is likely to be applied in a suit against a physical therapist, and it could follow that as physical therapy specialization develops, future limitations on 606 PHYSICAL THERAPY

the locality rule for medical specialists (ie, the implementation of higher standards) may apply to physical therapist "specialists." While the demise of the locality rule in all states may not be imminent, it should not be unexpected. Insofar as the nature of medical practice itself is constantly moving toward increased specialization, the importance of the locality rule is gradually lessening. The physician general practitioner is being replaced by the specialist in family medicine, and eventually the locality rule may be applicable to so few cases involving physicians that it will be of minor importance. In addition, because the family-medicine specialist is subject to uniform education, examination, and certification requirements, as are those in other medical specialties, the reasons that support abolishing the locality rule for specialists may someday be forceful enough to abolish it for the general practitioner as well. The national trend toward abolishing the locality rule entirely, or significantly modifying it to include similar communities or entire states, will affect all physical therapists, be they generalists or specialists. Even if the protection afforded by the locality rule is not further eroded, there are already many jurisdictions that do not recognize the rule for specialists. Therefore, it is incumbent upon the physical therapy profession to recognize the possible threat of the rule to its members, and to educate those members about the potential malpractice dangers that accompany a therapist's status as a specialist. It is particularly important to note that "specialist" status for a physician (and, therefore, for a physical therapist) does not require board certification it can be granted to one who considers himself and practices as a specialist. A therapist who professes to "specialize in orthopedics" or advertises "practice limited to orthopedics" may be obligated to possess a greater degree of knowledge and skill in orthopedics than the generalist physical therapist, because such claims create a reasonable assumption on the part of his patients that the therapist is especially educated and experienced in his "specialty." Because competencies for board certification in various specialty areas are still in the planning stages, and because board certification is not a legal prerequisite for specialization, a physical therapist who holds himself out to be a specialist could be held to the standards of other therapists who hold themselves out as specialists in the same field rather than to the general standards common in his local community. Once the competencies for a specialty are formally accepted and a valid evaluation process is implemented by the APTA Board of Certification of Advanced Clinical Competencies, it would appear, based on physician specialist malpractice cases, that the "specialist" could be held to the standard outlined in the competencies and to the standards of practice of other board-certified specialists. Whether or not this more stringent standard of care for "specialists" will immediately follow the institution of board certification for each field is a matter of speculation. However, the far-reaching impact of the establishment of a certification process for a specialty is clear. A specialist, whether or not board certified, will be expected by the public and the courts to possess a greater degree of knowledge and skill than a nonspecialist in the practice of his specialty. The specialist's actions will be compared to other specialists practicing in the same specialty, and because certification will be standardized, the locality rule will be inapplicable to a specialist. It would be prudent, then, for the physical therapist in general practice who is not board certified but who professes to be a "specialist," to practice his art with the degree of care and skill expected of a board-certified specialist. The movement toward specialization will have the greatest impact upon any physical therapist practicing in a state that does not require medical referral to initiate treatment. Due care may require that a prudent and careful therapist consult with a specialist. 4 Consultation may also be required for plan of treatment, or when the therapist knows, or should know, that his care is ineffectual. 4 Consultation and referral is not limited to other physical therapists and physical therapist specialists, and would include physicians and other health professionals. The determination of whether a therapist is liable for failure to consult could in all cases depend on the individual situation and the availability of a specialist. Currently, it is unlikely that failure to consult a physical therapy specialist will be cited as a factor in malpractice suits filed against physical therapists because 1) there are only a few states that allow practice without referral and 2) the concept of specialization is not yet fully developed. If a therapist practices in a state where medical referral is required before a therapist initiates treatment, and if the therapist notes a condition that might require further medical consultation or referral, then the therapist is obligated to inform the referring physician of the therapist's concerns in order to protect the therapist against potential malpractice claims. Although specialization will probably be accompanied by an increase in malpractice actions against therapists regardless of their practice setting, such actions are particularly likely to occur in those states that permit practice without referral. SUMMARY Patients' increasing willingness to initiate malpractice actions against medical and allied health practi- Volume 62 / Number 5, May 1982 607

tioners is one factor that will have major impact for physical therapists in all areas of practice. Another is the legal trend toward holding practitioners to a national standard of skill, care, and knowledge possessed and used by the "duly careful member of the profession." Given current legal interpretations in malpractice suits, it is vital that therapists give serious consideration to the potential legal implications arising from the movement toward clinical specialization and practice without referral. As protection afforded by the locality rule is eroded, all physical therapists, and particularly those who enter a field of specialization or engage in practice without referral, will be required to meet higher standards of knowledge and competence if they wish to avoid malpractice litigation. REFERENCES 1. Corpus Juris Secundum. Brooklyn, NY, The American Law Book Co, 1951, vol 70, p 945 2. Coleman vs California Friends Church, 81 P 2d 469-471, 1958, quoted in Holder AR: Medical Malpractice Law, ed 2. New York, NY, John Wiley & Sons Inc. 1978, p 43 3. Black's Law Dictionary, ed 4. St. Paul, MN, West Publishing Co, 1968, p 1184 4. Holder AR: Medical Malpractice Law, ed 2. New York, NY, John Wiley & Sonslnc, 1978, pp 43-59 5. Waltz J: The rise and gradual fall of the locality rule in medical malpractice litigation. DePaul LR 18:408-411, 1969 6. Montgomery vs Stary, 84 So 2d 34-40, 1955 7. Coleman vs Wilson, 88 A 1059-1061,1913 8. Shapiro ED: Medical malpractice history, diagnosis, prognosis. St. Louis ULJ 22:469-484, 1978 9. LeBlanc vs Lentini, 266 NW 2d 643-652, 1978 10. Brune vs Belinkoff, 235 NE 2d 793-799, 1968 11. Naccarato vs Grob, 180 NW 2d 788-792, 1970 12. American Physical Therapy Association House of Delegates Handbook. Washington, DC, American Physical Therapy Association, 1977 13. American Physical Therapy Association House of Delegates Handbook. Washington, DC, American Physical Therapy Association, 1980 14. Weeks RB: Liability for injuries or death resulting from physical therapy. ALR 3d 53:1250-1257, 1973 15. Sprague vs Spencer, 14 NYS 2d 673-676, 1939 16. James CA Jr: Medico-legal considerations in the practice of physical therapy. Phys Ther 50:1203-1207, 1970 608 PHYSICAL THERAPY