Physical Therapists Medical Malpractice Case Study with Risk Management Strategies
Physical Therapist: Improper informed consent obtained; failure to obtain the degree of knowledge and skill to perform dry needling; improper management over the course of treatment; failure to supervise and monitor patient.
Physical Therapy Owner: Failure to assure that clinical
staff are qualified; failure to maintain proper policies and procedures on informed consent.
Total Incurred: Greater than $72,000
(Monetary amounts represent only the payments made on behalf of the insured physical therapy firm.)
The patient was a 50-year old female diagnosed with radiculopathy of the cervical region, soft tissue disorder, and stiffness of the upper neck. She was referred to the insured physical therapy facility in hopes of increasing flexibility, mobility, strength and/or conditioning for restoration of functional mobility. Her history included a prior neck surgery (C5, C6 fusion). She was a nurse practitioner and had just returned to work from the fusion, on light duty. The patient had undergone 3-4 therapy sessions when an employed physical therapist (PT) inquired if she would be willing to try a dry needling procedure. The patient had been treated at the facility many times for prior injuries and even had dry needle therapy several times at the facility, so she agreed to the therapy.
On the day of the incident, the patient told the PT that she understood the risks and benefits related to dry needling, but no informed consent was formally acknowledged. Following the treatment, the patient reported less tension and feeling better after the dry needling and she claimed to have a 50% reduction in pain. However, within a half hour of leaving the physical therapy facility, the patient began to have shortness of breath.
She called the PT that performed the dry needling and she described her symptoms as burning in her chest with shortness of breath. The PT instructed her to go to the emergency department (ED). The patient refused to go to the ED at that time and stated that she would go if she felt her condition was getting worse.
Several hours later, the patient’s husband brought her to the ED because the patient’s symptoms had worsened. When she arrived at the ED her pulse oximetry level was 88% on room air. An x-ray was performed, and it revealed bilateral pneumothorax. She was admitted after chest tube placement and her pneumothorax resolved within 48 hours.
On follow-up after being discharged from hospital, the patient reported being tired and looked pale. Follow-up chest x-rays confirmed that the patient’s pneumothorax had resolved, despite her continued complaints of shortness of breath.
The patient reported that she was depressed and was having trouble going to work. She was placed on short-term leave so that she could recover at home. Three weeks after hospital discharge, the patient fully recovered and was released to go back to work.
When the physical therapy facility found out about the patient’s hospital admission due to the pneumothorax, several attempts were made to contact the patient. She never returned to the facility and filed a lawsuit against our insured physical therapy business owner and the treating PT.
Risk Management Comments
The patient was a highly compensated individual and could not work for several weeks due to her pneumothorax. Because of her recovery process, the patient claimed a loss of income of approximately $10,000. The patient also claimed that due to her recovery process she failed to reach her productivity goals and lost her job, claiming an additional loss of $30,000. She sued for pain and suffering, which was estimated at $175,000, plus medical costs that were greater than $25,000.
While defense experts were of the opinion that the case was largely defensible, there were nevertheless several areas that the PT and business owner were liable. Examples of liability included:
- There was little documentation to support an informed consent process with the patient. Since the patient had dry needle therapy performed at the facility in the past, the PT had decided not to go through an informed consent process.
It had been at least five years since physical therapy facility’s written policies and procedures were last reviewed and updated.
Before discovery could be completed in the case, the plaintiff counsel was pressuring for a settlement of $500,000.
When defense counsel investigated the rush to settle the claim further, they found that the patient had lost her license to practice as a nurse practitioner during the same time her injury occurred.
Just prior to the dry needling incident, the patient was found guilty of two misdemeanors:
- Driving while under the influence (this was her second incident in five-years).
- Assault against her husband.
These findings were communicated to the plaintiff attorney and the settlement amount was significantly decreased from the plaintiff’s initial claims. The total incurred cost to defend and settle this case was greater than $72,000, which was significantly less than the original amount requested by the patient.
Risk Management Recommendations
For Treating Physical Therapists:
- Prior to dry needle therapy, consult with the patient’s referring practitioner regarding precautions or contraindications and obtain a thorough and accurate history.
- Performa thorough and accurate informed consent process, including risks and benefits of the treatment, as well as possible alternative therapies.
- Recognize patients’ medical conditions, co-morbidities and any additional specific risk factors that may affect therapy.
- Document all patient-related discussions, clinical information, areas where the needle was inserted, response elicited, and patient’s condition pre- and post-therapy. If the patient requires immediate medical care, implement the following measures:
- Communicate urgent or critical patient care concerns to the referring practitioner in a timely manner.
- Execute emergency responses to treat and transfer to a higher level of care any patient who has sustained a perforation of lungs or other hollow organ, or who has
suffered secondary physiological effects or complications associated with dry needle therapy
For Physical Therapy Business Owners:
- Provide clinical support and supervision for physical therapist assistants, aides and students in compliance with standards of practice for physical therapy.
- Know the current scope of practice parameters for physical therapists, physical therapy assistants, aides and students, and do not instruct them to provide services beyond their scope of practice.
- Perform at least annual performance reviews for each employee, including a review of errors, “near misses”, document requirements compliance, existing skills and directly observed competencies. Provide physical therapy staff with coaching, mentoring, and clinical and system education as needed to ensure that patient safety requirements are satisfied.
- Ensure that clinical practices comply with standards endorsed by physical therapy professional associations, state practice acts and facility protocols.
- Review policies and procedures on a regular basis to ensure their effectiveness and alignment with actual practice. Federal and state regulations may require review of policies and procedures on an annual basis. Document dates of policy implementation, review and revision. Archive outdated or modified policies and procedures for later retrieval in case of litigation.
- Review policies and procedures with staff members upon hire and on a regular basis thereafter. Physical therapy staff should acknowledge in writing that they have read and understand the policies and procedures, and all records concerning staff education should be retained in personnel files.