The following story is based on a real-life claim experienced by a Massage Therapist client with insurance arranged by Aon. All names have been anonymised for privacy reasons.
Massage therapy can be a rewarding type of work - healing pains and helping people relax using techniques requiring a balance of gentleness and pressure. Perhaps that’s what Jenny* loved most about running her own massage and myotherapy business.
Like many other business owners, Jenny also loved learning about new types of therapy and exploring new techniques with her clients. She had a lot of regular customers who had been coming to her for many years as her treatment worked well for them. Jasper was one of these clients; he had been a regular customer of Jenny’s for 2 years. Although Jasper had a pre-existing issue with his hips, he really valued the treatment that Jenny provided.
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On one particular day, Jasper came to Jenny’s practice for his monthly massage. Jenny had been experimenting with some new massage techniques and felt that one of the techniques she’d learned would work well for Jasper.
Upon completion of their session, Jasper noticed the pain in his hips had increased. As the pain got worse, Jasper felt certain that Jenny’s massage that day caused this new pain. He therefore decided to take legal action against Jenny, alleging that she had been negligent in performing her treatment.
Jenny did not advise Jasper that she’d be performing a new technique that day, although she was aware of his pre-existing condition. Jasper took legal action and was successful in his claim. The claim was settled for an amount over $40,000, but fortunately, Jenny had a Professional Indemnity insurance policy arranged through Aon which covered the legal costs of defending Jenny’s practice, as well as the compensation she was required to pay.
What could Jenny have done differently?
There were a few learning’s from this claim that all allied health practitioners can take to ensure they’re undertaking due diligence with their service to prevent such claims from occurring.
First and foremost, when trying a new method of treatment or service on a client, it’s important to obtain consent from the client beforehand. If Jenny had taken the following action, it may have assisted greatly in the defence of her claim. This is especially crucial if the client has any known pre-existing conditions.
Jenny should have explained the new treatment and the associated risks before performing it to ensure full disclosure had been provided and explicit consent was received by Jasper. Written records are always the most reliable and accurate forms of evidence that can support in defending a claim, so an updated “informed consent” form that specified the new method of treatment may have also helped to make Jenny’s defence stronger. It would have also been a good idea for Jenny to obtain an updated written health history from Jasper prior to treating him, as well as conducting a thorough physical examination, (and recording her findings at the time) to determine the most appropriate treatment type for Jasper.
Although Jenny’s insurance covered the cost of this claim, the process of working with the lawyer on her defence and digging up old paperwork was a time consuming exercise – time that Jenny could have spent working on the operation of her business.
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This information is intended to provide general insurance related information only. It is not intended to be comprehensive, nor does it, or should it (under any circumstances) be construed as constituting legal advice. You should seek independent legal or other professional advice before acting or relying on any of the contents of this information. Aon will not be responsible for any loss, damage, cost or expense you or anyone else incurs in reliance on or use of any information contained in this article.