This case study involves the treating physical therapist individually, and as the physical therapy business owner who operates an outpatient physical therapy clinic. The patient was a 55-year-old female who presented for physical therapy at the insured’s clinic after undergoing a left total hip arthroplasty (THA). The patient was seen while in the hospital and, according to the hospital healthcare information records, she was making good progress prior to discharge.
The patient presented to the insured’s clinic for therapy one-week post-surgery. Her therapy prescription had been sent to the insured from the hospital upon discharge. The orders stated that the therapist should begin phase 2 THA protocol, by including therapeutic exercises, gait training and cold pack/ice modalities.
The patient seemed to do well during week one and only complained of typical surgical-type pain. The patient missed her therapy appointment during week two. When the insured physical therapist (PT) contacted the patient to inquire about the missed appointment, she stated that her hip had “pulled loose and she would have to have another hip surgery.
” The PT attempted to contact the patient a few times in the following days, but never heard back from the patient until a lawsuit was filed two years later.
The lawsuit named the physical therapy practice, the treating insured PT (who was also the owner of practice) and an employed physical therapy assistant (PTA).
Risk Management Comments
The PT defense expert testified that there was no apparent deviation in the insured's standard of care, and that it appeared that the patient’s left hip surgical failure may have been the result of surgeon malpractice, rather than any negligence attributed to the insured.
The orthopedic defense expert testified that the hip surgery performed by the orthopedic surgeon was outdated and an inappropriate procedure for this patient.
The patient’s theory of liability against the insured kept changing. The first theory asserted that the surgery failed because the physical therapy was too aggressive. When that theory was disproven by the defense experts, the patient’s attorney contended that the treating surgeon’s signature for the referral to physical therapy post-discharge was forged. The forgery was disputed by the hospital’s PT, who performed therapy on the patient prior to discharge. The hospital’s PT testified that he confirmed the order for therapy with the surgeon following the patient’s discharge. The signature on the therapy order matched the surgeon’s, so this theory was successfully refuted as well.
The plaintiff also exaggerated her claim for future lost wages. She testified that she was to unable work at any job and claimed $1.5 million in future lost wages. The plaintiff’s annual salary was $65,000, and when that amount was multiplied by her work expectancy (9.5 years), her claim for lost wages should have been less than half that amount. It was also highly questionable as to whether she could no longer work in any capacity.
The insured PT and defense counsel believed that the allegations against the insured and her practice were weak, and that the case was defensible. Motions to dismiss the case against the insured and her practice were denied, notwithstanding positive expert review and testimony. Due to the court’s denial of the motions to dismiss, the case was prepared for a jury trial.
The trial lasted six days, and the jury ultimately found in favor of our insured, her practice and her employed PTA. Following the defense verdict, the jury was polled about the case outcome. Many of the jurors believed that the surgeon was the cause of the failed first surgery and that the surgeon tried to blame the patient’s outcome on the PT and her staff. Many of the jurors also expressed anger with the plaintiff, stating they believed that she had grossly exaggerated her losses, as well as her pain and suffering.
A few months after the trial, the patient retained a second attorney. The attorney filed a motion to appeal the jury’s decision, which reopened the claim. Several months elapsed before the appellate court denied the appeal.
The defense of the case lasted six years, which encompassed the time from when the first claim was filed until the final dismissal of the appeal. While a settlement may have been less costly and time-consuming, the defense counsel, experts, and insured PT strongly believed that the insured PT acted within the standard of care. The cost to defend the claim was in excess of $300,000. (Note: Monetary amount represents solely the legal defense expense payments made on behalf of the insured physical therapist.
Risk Management Recommendations
For Physical Therapists:
For Physical Therapist Business Owners:
- Be vigilant about protecting patients from the most common types of injuries, such as re-injuries, fractures and burns.
- Adhere to organizational treatment protocols, when available. If protocols are not available, refer to the applicable state practice act and professional organization guidelines.
- Review published evidence-based best practices.
- Determine the level of patient compliance with any prescribed exercises.
- Establish realistic expectations regarding the likelihood of experiencing pain during therapy, probable outcomes and duration of treatment.
- Document all discussions with the patient in the patient healthcare information record.
- Before establishing a treatment plan, be aware of the patient’s pre- and post-surgical diagnoses, including the extent of the injury (e.g., grade and percentage of tear in a shoulder) as this can significantly affect the likelihood of a re-injury.
- Document objective facts related to patient care and refrain from using subjective opinions or conclusions.
- Treat patients with respect and compassion during their course of therapy.
- Treat the patient as a partner when developing a plan of care and throughout the course of treatment.
- Refrain from using potentially insulting or inappropriate humor, sarcasm or idiomatic expressions (e.g., “No pain, no gain”).
- Respond immediately to any signs or symptoms of a possible patient injury by determining the need for additional medical evaluation.
- Contact the referring practitioner for any consistent patient complaints, such as pain or swelling.
- Emphasize to staff on a regular basis the importance of a positive communication style that demonstrates respect and concern for patients.
- Provide staff members with ongoing training in effective communication strategies and monitor patient-staff interactions.
- When an incident occurs, instruct staff to complete an incident report. Use the report as a quality improvement tool.
- Review patient healthcare information records on a routine basis to ensure that documentation is consistent with treatment plans and in accordance with state and local laws and regulations, as well as professional and ethical guidelines.