Physical Therapists and Physical Therapy Practice Owner Medical Malpractice Case Study with Risk Management Strategies
Presented by HPSO and CNA
Medical malpractice claims may be asserted against any healthcare provider, including physical therapists and physical therapy business owners. This case study involves an employed physical therapist (PT) working in a PT office setting. Allegations in this case study include improper performance using manual therapy, improper technique, failure to supervise and monitor patient, and failure to report patient’s condition to referring practitioner.
The patient was a 59-year-old female who underwent surgery for a right Achilles tendon repair, which she had injured while training for her third triathlon. The patient reported a history of degenerative arthritis of the knee, right knee pain, right knee micro-fracture, right meniscectomy, insertional Achilles tendinopathy of the right heel, and right Achilles tendon debridement and repair with removal of Haglund's deformity and spurs and flexor hallucis longus transfer. Following surgery, the patient was referred to the insured’s PT practice.
Three weeks after surgery, the patient was evaluated by an employed PT. At the first appointment, the PT’s examination notes indicated that no strength testing was performed due to the patient’s recent surgery. The PT’s notes referenced a small open wound at the top of the incision site measuring 1cm x 1cm. The wound did not appear infected, and the patient denied hitting the incision. At the conclusion of the appointment, the PT provided the patient with printed instructions on a home exercise program. One exercise required the patient to perform a calf and tendon stretch using a towel twice a day. Although she was prescribed for several PT visits, the patient never returned to the PT practice after the first appointment.
A couple of days following the initial PT visit, the patient noticed the open wound was worse, and she was experiencing pain and swelling to her right lower leg. She contacted her orthopedic surgeon (“orthopedic”) about her condition and an appointment was made for her to be evaluated.
On assessment, the orthopedic noticed that the patient’s tendon was visible from the wound. He asked her if she had hit the area prior to noticing the wound and the type of activities that she had been performing. The patient denied any trauma and reported that the only activities she had been performing were the home exercises prescribed by the PT. The patient showed the orthopedic the instruction print-out given to her by the PT.
The orthopedic relayed his concerns that the tendon had re-ruptured, was possibly damaged and recommended an urgent surgical repair. After the appointment, the orthopedic contacted the treating PT, as well as the owner of the PT practice regarding the home exercises. The orthopedic relayed his concerns about the exercises the patient showed him and that those exercises were not consistent with the Achilles repair rehabilitation protocol he had ordered. In the patient healthcare information record, the notes reflected his belief that the stretches prescribed by the PT “contributed to the rupture of the tendon.”
The PT practice owner interviewed the treating PT and reviewed the patient’s electronic health information record (EHR). The EHR included a scanned copy of the home exercise program handout instructions. The instructions on how to perform plantar/dorsiflexion and inversion/eversion exercises and towel calf stretches with a towel looped around the foot were highlighted, with instructions in the treating PT’s handwriting to perform the exercises twice a day. The practice had its own home Achilles tendon repair exercise handout, but the one that the treating PT gave to the patient appeared to have been downloaded from a random PT website.
Following the second surgery, the orthopedic noted that the Achilles tendon had almost entirely pulled out from the surgical repair, and the “majority of it was ruptured and damaged.” The surgical notes did not suggest any causation for the failure of the surgical repair. Following the second surgery, the patient proceeded with a reasonably successful recovery. Subsequent appointments indicated continued post-surgical recovery.
However, the patient asserted that, due to her second surgery, she lost valuable recovery and training time and was unable to compete in triathlons for two years. She testified that the re-injury affected her daily life and continues to cause her pain, suffering and monetary damages. She alleged complications which included difficulty standing for periods of time, limitations in outdoor activity, changes to her gait, pain in the left hip (the opposite side from the Achilles tendon injury) and lower back.
Two years after the second surgery, the patient filed a lawsuit against the insured PT practice, as well as the PT individually and as an employee of the PT practice. The allegation against the PT included professional negligence for improperly prescribing a stretching exercise that reinjured the patient’s Achilles tendon and were inappropriate for a three-week post-operative Achilles tendon repair. The allegations against the PT practice were failure to ensure employed staff were competent and practicing within their scope of practice.
Risk Management Comments
During her deposition, the patient (plaintiff) testified that, at the first visit, the PT had provided her with the highlighted home instruction sheet and demonstrated how to perform the exercises. The plaintiff’s experts alleged that the stretches were inappropriate for the plaintiff’s post-operative stage and caused her to re-injure her tendon. The plaintiff contended that her monetary damages, as well as pain and suffering, were greater than $250,000.
The PT testified that she could not expressly recall giving the patient any home exercise instructions, as it had been more than two years since the visit. The PT further testified that she did not determine the specific surgical date or review the facility’s Achilles repair rehabilitation protocol prior to prescribing the towel stretch exercises. The defense experts reviewing the case found that the standard of care did not appear to have been fulfilled. The defense experts further reported that the PT’s admission of not knowing or using the facility’s approved home exercise program would be difficult to defend.
The possibility of a defense verdict for both the PT and practice owner was deemed to be less than 20 percent. Defense counsel assessed the potential exposure/claim value of the case between $200,000 and $300,000.
The parties agreed to mediation. The claim was resolved on behalf of the PT individually and as an employee and the PT business owner.
Greater than $160,000
(Monetary amounts represent the payments made on behalf of the PT as an employee and the PT business owner)
Risk Management Recommendations
Below are some proactive concepts and behaviors to include in your practice to help improve patient safety:
For treating Physical Therapists:
For physical therapy Practice Owners:
- Practice within the requirements of your state practice act, in compliance with organizational policies and procedures, and within the national standard of care. If regulatory requirements and organizational scope of practice differ, comply with the most stringent of the applicable regulations or policies. If in doubt, contact your state board of physical therapy or specialty professional association for clarification.
- Patients may be more or less prone to re-injure themselves based upon their condition prior to physical therapy. Before establishing a treatment plan, the PT should be conversant with the patient’s pre- and postsurgical diagnoses, including the extent of injury (e.g., grade and percentage of the tendon tear), as this can significantly affect the likelihood of a re-injury. The following recommendations can help to reduce the risk of re-injury and consequent liability:
- Review information regarding the patient’s pre- and postsurgical diagnosis (e.g., operative notes, referring practitioner’s office notes).
- Obtain a thorough and accurate social and medical history from the patient prior to providing patient therapy.
- Establish realistic expectations regarding the likelihood of experiencing pain during therapy, probable outcomes and duration of treatment.
- Conduct and document a comprehensive and accurate informed consent process, including risks and benefits of the therapy, as well as alternative therapies, and the consequences of forgoing therapy.
- Counsel patients regarding the risk of being noncompliant and/or failing to adhere to the plan of care and treatment regimen.
- Document all discussions with the patient in the patient healthcare information record.
- Recognize patients’ medical conditions, co-morbidities and any additional risk factors that may affect therapy.
- Perform at least annual performance reviews for each employee, including a review of errors, “near misses”, documentation 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.
- Provide appropriate clinical support for physical therapists, in compliance with supervisory or employment agreements. Encourage compliance with relevant legal, ethical and professional standards for clinical practice.
These are illustrations of actual claims that were managed by the CNA insurance companies. However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.