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In a previous case, the Board of Ethics ("Board") found a speech-language pathologist in violation of the Code of Ethics ("Code") and sanctioned her with revocation of ASHA membership and certification for life. That was a harsh penalty for very egregious conduct. Fortunately, the Board has only occasionally had to impose the sanction of revocation for life. Unfortunately, far more common are cases in which the misconduct was not as bad and the sanctions imposed were less punitive, such as private reprimand, public reprimand ("censure"), or revocation of membership and/or certification for a period of years.
Egregiousness is one way to characterize cases adjudicated by the Board; some cases are simply worse than others. Additional ways to characterize cases are by monitoring the rules of the Code that are most frequently violated and by trying to identify common fact patterns in ethics violations. To that end, it may be helpful to also characterize ethics complaints that come before the Board by analogy to civil law torts.
There are two major types of civil torts:
- the intentional tort
- the tort of negligence
The following hypothetical situation is an example of an intentional tort: You are a famous movie star being hounded by a horde of paparazzi taking your picture wherever you go. Even though the photographers remain a reasonable distance from you and do not constrain your movement in any manner, you finally get fed up with their persistence and punch one photographer in the face, breaking his nose. In this case, it was apparent from your actions that your intent was to hit the photographer even if you did not intend to break his nose. Under these circumstances, the photographer will likely sue you, alleging an intentional tort, and seek compensatory damages (e.g., medical expenses, lost wages, and pain and suffering). In addition, because of the intentional nature of your conduct, you may also be ordered to pay the photographer compensation in the form of punitive damages (damages that are not compensatory, but are to punish you for your conduct).
The tort of negligence is different. Imagine yourself driving down the street in your large SUV while talking on the cell phone with your child. Everything is fine until the subject of your child missing curfew three nights in a row comes up. As the conversation turns into an argument and you become distracted, you drive through a red light without stopping and hit a car that had the right of way. The driver of the car you hit suffers a broken nose, the same injury as the photographer in the intentional tort scenario above.
You can see, however, that there is a distinction between the two scenarios. You did not intend to hit the car as the movie star intended to hit the photographer. Rather, the crash was an accident caused by your negligence or carelessness. You owed a duty to drive carefully, you breached that duty by driving without paying attention, and that breach was the proximate cause of the injury and damages the other driver suffered. Your actions were consistent with the tort of negligence. As a consequence, the injured driver can sue you for that negligent driving and receive compensatory damages, however, because of the unintentional nature of your conduct you will not have to pay punitive damages (and, unlike the movie star, you would also not be subject to a criminal charge of assault and battery).
Sky Sons Night Classic amp; Coat King Only Onsjulian Keeping the distinction between intentional and negligence torts in mind, it may be helpful to view ethics complaints that have been adjudicated by the Board to the two types of civil torts just described.
Examples of ethical misconduct that could be construed to be of an intentional nature include the following:
- engaging in reimbursement fraud and abuse (e.g., charging for services not rendered; treating clients in a group setting but charging the insurance carrier for individual therapy);
- forging documents and records;
- scheming with a nursing home administrator to gain access to patients to aggressively market hearing aids to patients who don't need them or making unnecessary repairs on hearing aids patients already own and then demanding payment before returning them; and
- hiring eight Clinical Fellows in an effort to keep labor costs low and agreeing to be their Clinical Fellowship mentor knowing that you will not be able to adequately supervise all of them.
Examples of ethical misconduct from cases that can be characterized as negligent, not intentional, conduct:
- Agreeing to take on increasingly greater numbers of clients/patients to the extent that you are not providing adequate services to any of them. Audiologists and speech-language pathologists are service-oriented people and it is hard for them to say "no" when they see a need. What some don't realize is that allowing their caseloads to grow too large can work to the detriment of those we serve.
- Not maintaining adequate records. When we have a choice between seeing one more client before lunch versus taking the time necessary to complete our record-keeping requirements, we often put the paperwork off until a (much) later time. Record keeping can fall victim to the relentless march of clients during the day to such an extent that it may become difficult or impossible to remember all of the information required for a complete and accurate record for each client.
- A speech-language pathologist not referring a client for hearing testing when information about a client's hearing is not otherwise available.
- Not using your own professional independent judgment.
- Practicing outside of your current areas of clinical competence.
It is apparent that cases of negligence differ from those characterized by intentional misconduct. In fact, in many instances, negligent clinicians may actually be trying to serve what they believe is in the best interests of their clients, but in doing so may inadvertently not abide by their ethical responsibilities.