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Massage Today
October, 2008, Vol. 08, Issue 10

Claims of Commission

By Dixie Wall, Contributing Editor

In pursuing a career in alternative health as a massage and bodywork practitioner, one usually does not consider being sued for professional malpractice. A lawsuit against you or your practice is sometimes unimaginable, but surprisingly enough, it can happen.

We live in such a monetary-driven and litigious society that claims may still occur. Being sued for malpractice can result in repercussion not only at a professional level, but on a personal level as well. What are the most common claims against massage therapists and how can we avoid them? What preventative steps can we take to keep us from being affected at either the professional or the personal level?

Malpractice and/or liability claims are generally categorized into malpractice, criminal or civil. Malpractice includes acts of commission and acts of omission. Commission acts are unintentional or intentional acts performed by a therapist that result in some type of harm to the client. Acts of omission involve a failure to refer clients out when indicated or some type of missed assessment in initial treatment of client. These acts are more common among primary care physicians such as a doctor, chiropractor or acupuncturist.

Criminal suits are usually claims that involve some type of illegal implication and ramification related to unprofessional illegal conduct. You should be aware that most malpractice insurance policies do not cover you for these types of lawsuits. These illegal acts are usually excluded in malpractice insurance policies. According to the Medical Council of New Zealand, criminal acts range in severity. The lowest level is nonphysical contact and involves the use of inappropriate, disrespectful or demeaning language. More serious misconduct involves the use of inappropriate touching and/or draping techniques. The most severe acts involve engaging in a sexual act with a client. When any type of sexual misconduct takes place, the issue is no longer in the realm of malpractice, but now becomes a criminal issue. This long-standing issue is very controversial and will be discussed further in future articles.

This month, let's discuss acts of commission, which can further be defined as any harm resulting from a failure to perform a degree of learned skills ordinarily possessed by reputable massage and bodywork professional. Before I go into detail about the most common commission-type claims, I want to emphasize the importance of attaining and upholding professional liability insurance. Malpractice liability insurance protects therapists by providing for legal needs in the event you are named in a lawsuit. Liability insurance is mandatory to satisfy licensing requirements in states such as Massachusetts, Missouri, South Dakota and Wisconsin, and even in some local permitting regulatory agencies in California. Spas, clinics and other places of employment will typically require therapists (whether independent contractors or employees) to carry insurance in order to protect themselves and their customers. There are several different associations and insurance companies that offer liability/malpractice insurance policies. Policy terms and amount of coverage are generally standardized. Price varies according to membership benefits.

According to the president of the American Massage Council, Phil Stump, the most common claims involve an act of commission in treatment that resulted in physical injury to the client. A majority of these claims involved burning or bruising to the client. Other common claims involved some type of injury to the neck, ribs, and thoracic or lumbar spine. Here are some examples of recent claims and tips to avoid this from happening in your practice:

Client who is injured by burns:

  • Always get a thorough current and past medical history for each client. Check with the client's primary care physician when indicated.
  • Several medications and diseases (such as diabetes) may affect circulation, create a false perception of heat sensation and lead to burning of the skin.
  • Check for all contraindications of heat therapies when providing modalities such as hot stones, cupping, hydroculator packs, hot towels or table heating pads.
  • Always check in regularly with the client about their temperature sensation when performing any type of heat therapy.

Client who is injured by bruising:

  • Respect the diverse limits of different clients. Some clients enjoy and require deeper pressure, while others are more sensitive.
  • Review the client's current medications, particularly those that could make them susceptible to bruising, such as blood thinners and heart medications.
  • Always communicate clearly with clients that some modalities such as cupping may cause bruising.
  • After explaining the procedures and typical outcomes of the different modalities, obtain approval from client before proceeding with their treatment.

Claims involving injury of neck, spine or ribs:

  • Respect the boundaries of your client. Some may not be ready for certain modalities, treatments or techniques, while others may be ready to walk through some slight discomforts for a better result.
  • Use a pain scale from 1 to 10 during treatment and check in with the client periodically to see how the pressure you are applying affects their pain rating.
  • Never use chiropractic manipulation such as spinal adjustment or traction.

Next month, we will discuss claim prevention through practice management and the significant value of establishing routine policy procedures. We will also discuss acts of omission, and the importance of staying within one's scope of practice. Ultimately, we are the creators of our own destinies by establishing and following our own professional standards. It is through these principles by which we conduct ourselves that the solid foundation of a lasting career can be set.

 

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