This medical malpractice case study involves a physical therapy assistant and a supervising physical therapist/physical therapy business owner of a private outpatient practice. Allegations in this case include improper management over the course of treatment, and failure to supervise and monitor the patient.
The insured physical therapist (PT) is a licensed physical therapist and board certified in sports physical therapy. The insured employed physical therapy assistants (PTA), athletic trainers and non-clinical staff at his privately owned physical therapy outpatient practice. Although the insured was the sole clinician certified in sports physical therapy, advertisements for the practice promoted its staff of experts who were specially trained in sport injury rehabilitation, personal training and fitness.
A high school student presented to the insured for treatment following a torn anterior cruciate ligament (ACL) repair due to a basketball injury. He was instructed to participate in physical therapy two to three times a week for 12 weeks. After eight weeks, and in the absence of his parents’ knowledge, the patient stopped coming to therapy, instead opting to “relax.”
One month later, the patient returned to resume his physical therapy and was re-evaluated by the insured. The insured documented that the patient demonstrated “clinical significant deficits in single leg hop testing and dynamic stability testing on the post-surgical lower extremity when compared to the contralateral limb,” which was not unexpected given “post-operative status and extended duration away from guided physical therapy.”
The patient participated in physical therapy sessions until discharge six weeks later. With respect to the discharge decision-making process, the patient underwent a “return to play test.” This activity included a series of leg hop tests. The patient scored a 91.25 percent on his affected leg compared to his other extremity.
Following the patient’s last physical therapy visit, his orthopedic surgeon cleared him to return to sports “without restrictions.” The patient began working out at a local gym approximately four to five days a week and resumed other outside activities. Over the next few months, his visits to the gym decreased to two to three times a times week and, eventually, to once a week. Nevertheless, at full activity level, the patient experienced some mild pain and occasional throbbing pain by the end of the day. The patient was concerned that his affected leg had not fully healed and was “disconnected,” although this problem was never reported to any healthcare provider.
Two months prior to basketball season, the patient’s mother scheduled an appointment with the insured. The mother requested additional physical therapy services for her son in order to “keep him moving and get him ready for basketball season” rather than “sitting at home in front of the video games.” The mother also stated that she wanted to optimize the patient’s lower extremity function prior to upcoming tryouts for the high school basketball team.
It had been three months since the insured had seen the patient. At the first appointment, the insured reviewed the patient’s healthcare information records and confirmed that he was discharged to full activity without restrictions. During the evaluation, the patient reported no concerns. The insured’s examination of the patient included testing knee ligament stability, active knee flexion ROM, knee extension, manual muscle testing of right hip, ligamentous testing of bilateral hips/knees and patellar mobility.
The insured continued his evaluation of the patient by having a PTA guide him in a dynamic warm-up activity. The details of the events that transpired represented a significant portion of the dispute leading to the filing of the claim.
The patient asserted that, following the warm-up activity, the PTA led him to the Keiser (“KE”) machine and strapped a vest onto him. The PTA then hooked tethers from the KE machine onto the front of his vest. He stated that the PTA placed a wooden box beside the KE machine, which he estimated at approximately 20” high.
The patient further stated that the PTA demonstrated the exercise that she wanted him to perform, which involved jumping off of the box and landing solely on the injured leg before going into a squat position. The patient noted that, although he had used the KE machine in past PT sessions, he had not used it in conjunction with jumping off of a box. He emphasized that he had previously jumped up onto a box during PT sessions, but that he had not previously been instructed to jump from a box and land on one foot. After completing his first jump from the box and landing on his injured leg, he stated that his knee collapsed and he fell to the floor.
During testimony, the insured and several staff members refuted the patient’s recollection of events, stating that following the dynamic warm-up, the patient was asked to complete the single leg cluster hop test. This was the same test that he had successfully completed at the time of discharge. It was noted that the purpose of this test was to objectively assess the patient’s progress compared to the test performed at discharge.
Defendant testimony revealed that the patient performed the first two components of the test, both the single hop for distance and timed hop without incident. While he was performing the third component of the test, however, the triple hop for distance, the patient fell to the ground after experiencing a valgus collapse of the right knee. It was subsequently learned that the patient had sustained a bucket handle tear, which required two additional surgeries to repair his knee. Due to these surgeries and his post-operative recovery, the patient was unable to play basketball during his senior year of high school.
Shortly after the incident, the patient and his parents filed a lawsuit against the insured, his privately owned physical therapy outpatient practice, and the employed PTA. The patient and his parents/plaintiffs) testified that due to the insured’s failure to properly assess and evaluate, failure to prescribe and implement a proper treatment plan and protocol, and failure to properly supervise the PTA, the patient suffered a second ACL tear.
The patient testified that, prior to his second ACL tear, he had received several athletic scholarship offers to play Division 1 college basketball. As a result of this incident and the subsequent surgeries, the patient could no longer play Division 1 college basketball and was now solely being recruited by Division 2 colleges, with no full athletic scholarship offers.
Risk Management Comments
The plaintiffs contended that the patient returned to the insured for additional physical therapy treatments due to the defendant’s representation of his practice as experts in sport injury rehabilitation. On the day of the incident, the patient saw the insured and an employed PTA. The plaintiffs asserted that the insured misled the patient and his parents through his advertisement as a sport’s injury specialist; failed to properly and adequately assess and evaluate the patient’s current functional strength, neuromuscular and movement patterns; failed to appropriately progress him through a reasonably implemented physical therapy regimen resulting in a re-tear of his ACL, physical pain and discomfort, anxiety, depression, emotional distress, and loss of enjoyment of life. The plaintiff testified that he lost the “opportunity to achieve his dreams and goals of playing basketball at a high level.” His parents claimed significant loss of income due to medical expenses totaling over $300,000 and college expenses such as tuition, room and board, among other expenses of $250,000.
The defense position was strong, supported by qualified expert testimony. The expert testified that the PTA was appropriately supervised and believed that the injury was a “fluke” that occurred during a physical therapy session. However, it also could have easily occurred during basketball practice.
Although there was a factual dispute as to how
the incident actually occurred, significant evidence was compiled demonstrating that the incident occurred during the administration of the cluster hop test, including the testimony of the insured, the clinic’s progress notes, and the testimony of two other staff members present at the time of the incident. On the other hand, the only indication
that the incident may have occurred as the plaintiff alleged was his testimony.
In general, the defense expert supported the insured’s standard of care but raised concerns with respect to the insured’s evaluation of the patient prior to administering the cluster hop test. Specifically, he noted that the healthcare information record documentation reflected that he failed to perform any lower extremity strength testing, which would have been necessary due to his injury and the time lapse since his prior physical therapy visit.
The defense believed that the chance of a defense verdict was very high given the strong expert support. The team raised a strong defense, if the jury believed the insured’s version of events. However, if the jury believed the plaintiff’s version, the chance of a defense verdict was significantly lower.
A plaintiff’s verdict could have resulted in an estimated jury award of between $200,000 to $300,000. The potential for a jury to award the full medical costs, as well as the loss of a Division 1 college athletic scholarship, would raise the award to the mid-six figures.
Three years following the incident, the patient’s orthopedic surgeon testified that the patient was back to his pre-ACL injury functionality and, following two years of playing basketball at a Division 2 school, he transferred to play for a Division 1 college. Due to the patient’s complete recovery and the defense expert’s strong standard of care testimony, the plaintiffs recognized that it would be difficult to prove liability against the PTA and the insured PT.
The plaintiff’s agreed to dismiss the PTA and the PT but would not dismiss false advertising claims against the insured’s physical therapy practice. During mediation, a settlement between the plaintiffs and the insured’s physical therapy practice was reached.
: Greater than $96,000
(Monetary amounts represent the payments made solely on behalf of the supervising physical therapist/physical therapy business owner of a private outpatient office and personal training fitness center.)
Risk Management Recommendations
Below are some proactive concepts and behaviors to include in your practice to help improve patient safety:
For Physical Therapists:
- Adopt and document an informed consent process that includes discussion and teach-back from the patient and demonstrates that the patient understands the risks associated with treatment.
- If the patient is a minor, the parents/legal guardian should be involved in the informed consent process and understand the risks associated with treatment.
- Actively involve the patient, family and/or caregiver in setting goals for physical therapy.
- Be vigilant about protecting patients from the most common types of injuries.
- Patients may have a tendency to re-injure themselves based upon their condition prior to physical therapy.
- Prior to establishing a treatment plan, the PT should be aware of the patient’s pre- and post-surgical diagnoses, including the extent of injury (e.g., grade and percentage of tear in a shoulder or knee), which may significantly affect the likelihood of a re-injury.
- Monitor all services provided by PTAs or physical therapy aides, supervising the treatment plan, progress and outcomes.
For Physical Therapy Practice Owners:
- Never leave the therapy area when the patient is receiving services from another level of staff.
- Provide staff members with ongoing training in effective professional communication strategies and monitor the appropriateness of patient-staff or staff-staff interactions and communications, either written or verbal.
- Emphasize the importance of a positive communication style that demonstrates respect and concern for patients.
- Provide appropriate clinical support for staff, in compliance with supervisory or employment agreements.
- Perform, at a minimum, annual performance reviews for each employee, including a review of errors and near misses, while also documenting compliance with requirements, existing skills and directly observed competencies. Provide staff with coaching, mentoring, and clinical and system education, as needed, to ensure that patient safety requirements are satisfied. Performance evaluations should be signed by the employee and his/her supervisor.
- Ensure that clinical practices comply with professional standards endorsed by physical therapy professional associations, state practice acts and facility protocols through consultation with legal counsel, as needed.
- Provide appropriate clinical support for staff, in compliance with supervisory or employment agreements. Encourage compliance with relevant legal, ethical and professional standards for clinical practice through consultation with legal counsel, as needed.
- Avoid advertisements that inflate patient expectations or withhold relevant information.
- Select advertising terminology with care by avoiding superlative words and phrases such as “best care,” “painless,” “highest quality” and “state of the art,” which may lead to a breach of an expressed or implied warranty.
- If an adverse patient incident occurs, establish expectations with the patient and/or the family that are reasonable and meaningful.
- Contact your liability insurer immediately if you become aware of a potential professional liability claim against you or your employees.
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 and regulations, 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.