BooneThink

Cardiac rehabilitation professionals need to understand the legal risks for negligence and what mechanisms are available to decrease the risks. First of all, they are part of a medical team engaged in “a system of medical care.

The fundamental objectives are to:
•Relieve symptoms
•Minimize loss of function
•Optimize the recovery of life quality

Of course other features of cardiac rehabilitation include:
•Diagnosis (ECG/GXT)
•Exercise Prescription
•Administration/alteration of medical (drug) treatment

And yet, all of this takes place within the context of a multidisciplinary staff of which exercise physiologists are not licensed.

My point here is that the exercise physiologist is performing in a capacity reserved by law for the licensed provider. Conduct that may be intentional or negligent that results in harm to another person is, in short, a professional wrongdoing.

Legally defined, negligence is a failure to conform one’s conduct to a generally accepted standard of conduct or duty. A cause of legal action for negligence is established by proof of a breach of duty proximately causing harm or damage to another.

Proof of one’s application of a given standard of practice and failure to meet it are typically established through expert witnesses during a trial.

The question is which set of standards should be used to ensure quality of care and reduce legal risks.
•American Heart Association
•American College of Sports Medicine
•American College of Cardiology
•American Association of Cardiovascular and Pulmonary Rehabilitation
•American Society of Exercise Physiologists
•Clinical Exercise Physiology Association

Frankly, no one knows which one of these standards is likely to be the best in a court room when it comes to defining the elements of care that are professionally and legally owed to patients.

Just imagine, the AHA first developed cardiac rehabilitation guidelines for physicians in the 1970s. The guidelines addressed exercise testing and physical activity prescription for management of heart disease patients.
•In 1980, the AHA published its own Exercise Standards Book.
•In 1990, the AHA published updated exercise standards and recommendations.

In 1986, the ACC published recommendations dealing primarily with admission and monitoring of exercise aspects of CV rehab, particularly, guidelines dealing with exercise testing.
•Interestingly, ACC guidelines ended up concluding that “routine serial GXTs within the framework of cardiac rehab are not useful.”
•This point contradicts the more AACVPR guidelines, thus demonstrating a legal uncertainty for program and professionals.

ACSM developed its guidelines for preventive and rehab exercise programs.
•The roles and responsibilities indicated by ACSM do not fully coincide with those of the AHA, particularly with regard to the physician.
•Such differences have the potential to create added legal concerns for some who practice outside the typical rehab environment, especially in free-standing clinics, and for practitioners who do not operate under the legal authority of a licensed provider (generally a physician).

The AACVPR was formed in mid-1980s to provide a national voice for cardiopulmonary rehabilitation patients.
•In 1990, AACVPR published its first comprehensive guidelines to define the minimum standards of care for cardiac rehab.
•Issues addressed by AACVPR include risk stratification, ECG monitoring, emergency procedures, staff-patient ratios, licensing and certification for personnel, and documentation of treatment outcomes.

Exercise testing and prescription raise significant legal concerns for cardiac rehabilitation programs and the personnel because both are clearly medical procedures.

As a result, since state statutes mandate that only licensed healthcare providers can perform medical procedures, it is imperative that a licensed physician is present.

Keep in mind that cardiac rehabilitation meets the legal requirements of a medical-care specialty.

Hence, according to Dr. Bill Herbert (EP) and his brother, David Herbert (lawyer), who wrote Chapter 29, “Legal Considerations” in the 3rd edition of Health Disease and Rehabilitation, by Michael Pollock and Donald Schmidt:
•Should any person engage in exercise testing or exercise prescription within the context of a medical model but not involve a licensed practitioner, then, there is a risk of adverse consequences due to potential violations of both criminal and civil laws.

In fact, in support of the “need for a medical doctor to be present and visually supervising clinical GXTs,” health insurance providers have sought to limit reimbursement for cardiac rehab services.

EPs and others differ on this point and, as a result, there are some jurisdictions that allow certain licensed allied healthcare providers to act in narrowly defined and documented way, as surrogates of the physician in charge.

The monitoring of post-MI patients during exercise rehabilitation is subject to litigation, too. One strategy to reduce the chance of a claim/litigation is to stratify patients in accordance with their severity of disease and risk of CV complications. However, this is an imperfect process.

Safety is imperative, however. EPs must appreciate that the Board Certified EP is a great step towards decreasing risks. And, of course, self-monitored programs carry an even greater potential for legal claim and suit.

Comprehensive communications and record keeping are critical to avoiding litigation. This is why detailed, legible, staff-signed records, especially specific instructions to given patients, compliance issues, as well as cautions and warnings must be documented. In short, keep records and document everything. Remember, many lawyers who present injured parties say: “If file notation as to a particular procedure or cautionary measure is not written within the patient’s records, such an event did not happen.”

In malpractice or professional negligence cases (i.e., the failure of a professional to act in a reasonable and prudent manner), there is a plaintiff (the injured party) and a defendant (the professional who is alleged to have caused the injury). In short, then, negligence is a breach of an objective standard of medical practice. When judged by a reasonably prudent person, as in a jury, if the exercise physiologist’s conduct falls below this standard set by the profession to protect the public from unreasonable risk of harm, a breach of duty is said to have occurred.

Five elements of liability must be present for a professional to be held liable for malpractice.

1. A standard of care must be established that defines the quality of care believed of a professional group. The exercise physiologist’s standard of care is defined by the Standards of Practice. The point here is that the exercise physiologist is responsible to a client for adhering to the profession’s standards of care. When the quality of care is questioned by the plaintiff (the client), the defendant must show that the care given is consistent with what the reasonably prudent EPC exercise physiologist would have done in accordance with the profession’s standards.

2. A breach of duty occurs when the exercise physiologist violates the standards of care. The plaintiff must prove that the exercise physiologist’s actions were substandard and that the substandard action caused an unfavorable outcome that would not have occurred in the absence of negligence. For example, failure of the exercise physiologist’s to properly acknowledge the client’s disease condition, either by not using the proper treadmill test or not monitoring the client properly, failure to properly administer an exercise prescription, or failure to gain a proper informed consent from a client before proceeding with a metabolic test or other such procedure for fitness assessment and/or rehabilitation.

3. The exercise physiologist understands that the professional practice is written with the expectation that if the standards are followed they will avoid harm to the client. This foreseeability of harm argues that the exercise physiologist has reasonable knowledge to foresee the likelihood of injury to the client.

4. The failure to uphold the professional standards increases the likelihood of injury to the client.

5. Failure to adhere to the standards resulted in an injury that would not have occurred had the exercise physiologist not failed to perform his or her duties in accordance with the standards. That is, the alleged deviation from the exercise physiologist’s standards of care directly or indirectly caused the injury or unfavorable outcome. Of course, the plaintiff must prove that the exercise physiologist’s actions were substandard and that the substandard action caused the injury that would not have occurred in the absence of negligence.

Exercise physiologists should carry their own liability insurance. This is merely a logical fact, and it is essential for all ASEP Board Certified Exercise Physiologists. Why, because they will be held to a higher standard of care than non-ASEP certified exercise physiologists. It doesn’t have anything to do with the fact that they are not licensed. If a client suffers harm as a direct result of a Board Certified Exercise Physiologist’s action, the EPC can be (and very likely will be) held personally liable.

Professional liability insurance ensures the exercise physiologist against claims made by a client or patient alleging negligence. This is important because Board Certified Exercise Physiologists are experts in health, fitness, rehabilitation, and athletics. Thus, they can be held liable for actual or alleged errors, omissions, negligence, breach of duty, misleading statements, and similar claims resulting from the performance or the non-performance of professional services. Most policies cover both the defense costs (e.g. attorney fees, court costs) and settlements or judgments.

According to the Allied Healthcare Professionals Insurance Center, “The only way to insure that you’re covered for your professional acts is to have your own professional liability policy, issued in your name. Your liability insurance policy will provide you with limits of liability that meet your professional insurance needs. And, because the liability insurance policy is issued in your name, many possible conflicts of interest between you and your employer may be eliminated in the event a claim is filed….When dealing with allied healthcare professional liability insurance, you may be able to add an additional $1,000,000 or $2,000,000 of coverage for a minimal additional to your premium payment. Therefore, based on your individual needs, it may be worth considering the maximum limits offered for your policy, rather than simply selecting the most inexpensive premium available.”

“Exercise is medicine” is a popular phrase today. However, exercise physiologists must be especially clear that, while exercise may be viewed as medicine, they do not practice medicine. This is not a play on words. Rather, the point is to highlight the difference between using exercise as medicine and the practice of medicine.

Stated somewhat differently, exercise physiologists administer exercise testing, design exercise prescriptions, and implement physical training programs. They do not diagnose ECG changes during the test. Instead, they are educated to determine if the ECG strip is contraindicated to continuing the test. As long as they understand the distinction and the other points discussed, legal concerns resulting from negligence-type litigation will be minimized. This does not mean, however, that legal issues go away.

As long as exercise physiologists work with the public sector, there will always be the likelihood of legal issues. This is why it is so important to have individual liability insurance.