How To Prevent Malpractice Claims*

Information for massage therapists to understand how to protect themselves against malpractice claims.

Recently, I attended the 2017 National Convention of the American Massage Therapy Association (AMTA) and sat in a class titled: A Massage Therapist's Guide To Malpractice Prevention. I was intrigued when I saw this program on the schedule because I've always been curious about the kinds of claims against massage therapists. Every year I dutifully paid my dues for insurance but what where those dues being used for? Mostly what I've heard is massage therapists being sued for burning a client with hot stones and besides that, not much else.

It was an excellent class with good information. Not only about the types of claims made against massage therapists but how to protect yourself from the claim being paid out against you. AMTA insurance coverage is pretty good but if you are sued and found guilty, it is your reputation as a massage therapist that's at greater stake. Once you have been sued and found guilty, that info is permanently on your record and anytime you go for a massage job, the employer can see your record.

Claims Against Massage Therapists

So, what kind of cases are made against massage therapists? We were given a few case scenarios based on real events and then discussed them as a group before finding out whether or not the insurance company had to pay the claim.

 

Case #1

First Time Massage Client

Client: 30 year old male whose intake form showed he came in for stress relief. He also noted that this was his first massage. He wrote that he had no medical problems and wasn't taking medication. He wrote that his preferred focus of treatment was the low back and "everywhere else".

The form included, in bold print, for the client to give feedback to the massage therapist throughout the session.

Therapist: Provided a 90 min full body massage. The therapist noted on their form that it was the client's first massage and he talked throughout his session about work and his stress. The client made no complaints during the session and provided positive feedback.

Client Claim

Client: Alleged the next morning both his triceps were in severed pain and swollen. Client called his primary care physician who recommended he go to emergency care if the pain and swelling persisted.

  • 6 days after his massage, the client called the center and told them that he believed the massage had caused his injury
  • On the 7th day, he went to his local emergency care department where he was diagnosed with bilateral contusions to both arms and referred to an orthopedist.
    • The orthopedist diagnosed trauma with injury to the subcutaneous fat layer (fat necrosis) in both arms from deep tissue massage. The radiologist opined that the injuries were associated with possible trauma, non specific edema, inflammation, and cellulitis.
  • The pain and swelling in the client's arms persisted and be began to complain about them looking "disfigured". He complained the pain was so great that he missed a week of work and it was affecting his marriage.
    • Client was referred to a plastic surgeon but there is no evidence if he sought that surgery.

The client and his wife sued the massage treatment center, the center's owner, and the massage therapist alleging pain and suffering, lost wages, medical costs, and loss of consortium.

How Was This Case Handled?

  • This was the client's first massage and he may not have known what to expect in terms of the depth of the massage. While the therapist believed they didn't deviate from standard care, the client was injured and suffered significant pain and swelling.
  • Defense experts deemed that the massage was an unlikely source of the client's injuries. However, because the treating orthopedist wrote a diagnosis of "trauma from deep tissue massage and MRI evidence of trauma, tissue necrosis, and edema", defense experts were unable to provide a possible alternative source for the client's injuries. In view of this matter the decision was made to settle the matter.

Could This Case Have Been Prevented?

Even if the client had an undiagnosed medical condition, such as diabetes, the massage therapist had been more cognizant of their pressure on a first time massage client, they might have noticed if they were working too deeply. Clients don't often realize that massage should not be painful and many clients of massage admit they expect deep tissue to be uncomfortable. Additionally, it is easy for massage therapists to "zone out" during a session and not pay attention to the nuances of the client's psysiological responses during the massage.

 

Case #2

Informed Consent

Client: 60 year old male who came to the massage center seeking massage for neck, shoulders, arms, hips, thighs, calves, and feet pain. The informed consent form was not signed and the intake forms was incomplete as to medications and past medical history. During the initial massage the raclient mentioned that two years prior he had surgery to repair a torn rotator cuff for his right shoulder. The massage therapist performed a 90 min full body massage without any complaints from the client. After the initial 90 min, the client scheduled 3 - 60 min massage sessions in 2 week increments.

During the 1st 60 min massage, the massage therapist performed a full body massage and added 2 stretches to each arm. While performing the right arm stretch, the client reported discomfort so the mt stopped the stretches and completed the massage by working the head and neck.

Client Claim

Following the massage, the client stated he felt relaxed but a little sore in neck and back. Two days later, the client called to cancel his subsequent massages because he was planning to seek the care of a chiropractor.

Approximately two weeks after the massage, the client sent an email to the massage center requesting the mt contact him due to pain in his right shoulder. When the client didn't receive a message from the mt, he then sent a letter to the massage center alleging the mt over stretched his right arm causing further damage to his right shoulder.

Because the mt was a contract employee, he had no access to the center's emails and didn't know about the complaint until the client sent the letter to the center a week later.

How Was This Case Handled?

Defense experts reviewed the therapist's treatment notes and could not find any breach of care. But they were concerned that the notes appeared to be a subsequent narrative explanation and defense of the complaint instead of the actual session notes done at time of treatment.

Defense experts deemed this as troubling since a subsequent narrative is less convincing as a record of actual occurrences and is subject to "selective" memory.  This make is much harder to take the information at face value. Due to this fact, the decision was made to settle the claim.

Could This Case Have Been Prevented?

The therapist made several mistakes by not making sure the client filled out the intake form. Additionally, the therapist did not document the session until after a case was made.

If the massage center had responded to the client immediately after receiving the email, that could have helped the client feel like their needs and concerns were being addressed.

 

Case #3

Sloppy Draping

Client: 30 year old female who received multiple massages from a male massage therapist over the course of a year without complaints. On the day of the incident, the massage therapist had the client turn over on her back and accidentally brushed the client's breast. Following the incident, the therapist immediately re-draped the client, apologized and continued with the massage.

While the client was on her back, the therapist stepped on the draping causing the drape to accidentally slide off the client. The therapist apologized and adjusted the drape while unintentionally touched the client's pubic area. Again the therapist apologized and continued with the massage.

After the massage, the client thanked the therapist and left a tip.

The therapist informed his employer of the incidents and documented them in an incident report.

Client Claim

A few days after the massage, the client called the massage center and informed the owner that she had retained an attorney because the therapist had intentionally pulled the sheet off of her and repeatedly touched her pubic area (4 or 5 times).  Client claimed the incident was assault, battery, and caused her emotional distress.

How Was This Case Handled?

  • The therapist admitted he accidentally touched the client's breast and pubic area but denied repeatedly touching those areas.
  • The therapist's employer had excellent reference letters from previous employers for the therapist as well as compliments cards from other clients regarding the professionalism of the therapist.
  • Defense of the claim lasted 4 years and settled for a nuisance value at the request of the massage therapist. He was tired of this court battle.

Could This Case Have Been Prevented?

Yes- if the massage therapist had been more careful in his draping.

However, the therapist documented the incidences both in verbal form with his employer and also in a written form right after the incidences happened. Because of the documentation, the claim was difficult for the client to prove that the therapist intentionally assaulted her.


Impact of Social Media on Claims

The following situations all represent claims made by clients against massage therapists' actions on social media. In all of these cases, the massage insurance company had to payout the claim or the massage therapist lost their job. This portion was very important because all to often, massage therapists do post information about their clients in online groups without any concern for ethical or legal ramifications.

 

Case #1: A massage therapist saw a former male client on her news feed on Facebook b/c they both had a mutual friend. The massage therapist had previously worked at a place where the man and his wife had been her clients. The therapist commented on the photo of her prior client that he looked "very good" and they had a four line conversation.

The massage therapist received a message from the client's wife stating "I saw your post and there is no reason for you to be on my husband's Facebook. You are the cause of our problems."

 

Case #2: A massage therapist took a photo of a man receiving a massage and then posted it to Facebook.

 

Case #3: An employee of a medispa (plaintiff) goes into labor. Other staff members videotape and photograph the event while allegedly mocking the plaintiff. Photographs of the plaintiff were posted on various social media sites.

 

Case #4: A massage therapist felt inspired by a client and felt the need to express it. She wrote a long post on a social media site about the client. She believed she had only sent it to her friends when in fact she had posted it publicly. Her employer was notified of the post and terminated her employment and reported her actions to the state licensing board.

 

Case #5: Text messages were made by one massage therapist to another describing a client in an unfavorable light.

 

Case #6: (This actually happened to a physical therapist but I wanted to share this because if you are massage therapist accepting insurance, this can also happen to you.) Physical therapist was scrolling through their Facebook on their phone during patient treatment session. The therapist was sued by both their patient and the patient's insurance company.

 

Prevention of Social Media Claims

Here is what massage employers and business owners can do to help prevent social media claims:

Establish a formal policy on appropriate used of social media for employees to include:

  • Appropriateness of accepting "friend" requests from clients.
  • Texting or video sharing any protected health information that could breach client confidentiality.
  • Unacceptable posting of any obscene, defamatory, threatening, harassing, or malicious information on social media that place the business at risk for a lawsuit.

Regularly check business' social media sites:

  • Address any questions and positive and poor reviews as soon as possible.

Use caution in using instant messaging (IM) as a means of solely communicating with clients:

  • If IM is used as a communication venue, retain all messages in client's record.

Practice social media etiquette:

  • Refrain from posting rants, personal beliefs, or antagonizing outbursts on social media.
    • This is extremely important for massage therapists to consider. There a multiple private and not -so private Facebook groups where massage therapists are making obscene and defamatory comments about their clients. Massage therapists feel like they are "protected" because the group settings are member only- the truth is that it is still being posted on a social media platform and action can be taken against their comments.
  • Reposting inappropriate pictures, jokes, or information that can be proven inaccurate.

Conclusion

Overall, this was a really interesting class. The instructors used real world examples of the kinds of general claims that they see against massage therapists. The main takeaways from this course were the importance of documenting everything and that your massage business absolutely needs policies.

Policies are necessary because:

  • They enhance continuity of care by promoting a consistent, sequential approach.
  • Serve as a written reference for regulatory agencies and accrediting bodies.
  • Establish clear lines of authority and facilitating delegation of responsibility.
  • Instituting defined, objective parameters for evaluating employee performance.
  • Facilitating orientation of new employees and education of veteran staff about changes.
  • Strengthening leadership by fostering compliance with directives.
  • Supporting defense efforts in lawsuits involving standard of care issues.

The role of policies in litigation:

  • Many professional liability lawsuits include allegations of noncompliance with written policies and procedures.
  • Policy statements are often requested during the discovery phase of a trial where they may be used to establish whether an organization or business has instituted and adhered to guidelines.
  • Producing written policies in force at the time of the adverse event and showing that staff were instructed and trained to follow these established practices can significantly enhance legal defense.
 

* The information in this article is taken from the workshop slides presented at the class A Massage Therapist's Guide To Malpractice Prevention. Instructors:

  • Jennifer Flynn, CPHRM, Manager, Healthcare Risk Management & Healthcare Providers Service Organization
  • Lynn Pierce, BSN, RN, CPHRM, Risk Control Director, CNA Healthcare.