Korch v. State Board of Physical Therapy

CONCURRING OPINION BY

Judge McGINLEY.

I concur in the majority’s conclusion that the removal of patient files from an employer’s premises does constitute “unprofessional conduct” within the interpretation of Section 11(a)(6) of the Act, 63 P.S. 1311(a)(6). However, I would further distinguish Kepler v. State Board of Physical Therapy, 720 A.2d 496 (Pa.Cmwlth.1998).

As the majority correctly notes, Kepler is distinguishable because Susan E. Kepler was an “independent contractor” and David A. Korch was an “employee.” However, the critical distinction is that Korch removed patient files from the employer’s premises. His actions were directly related to the level of care provided to the hospital’s patients, not to any administrative aspect of physical therapy such as billing, as in Kepler. Korch’s conduct departed from “the minimally accepted standards prevailing in the physical therapy profession to the extent that it relates to the level of care provided to a patient.” Kepler, 720 A.2d at 499.

Accordingly, I concur in the majority’s conclusion that Korch’s conduct rose to the level of “unprofessional conduct.”