Physical Therapy and License Protection Case Study with Risk Management Strategies
Presented by HPSO
State Board of Physical Therapy (SBPT) complaints may be filed against a physical therapist (PT) by a patient, colleague, employer, and/or other regulatory agency, such as a state Department of Health. Complaints are subsequently investigated by the SBPT to ensure that licensed PTs are practicing safely, professionally, and ethically. SBPT investigations can lead to outcomes ranging from no action against the PT to revocation of the PT’s license to practice. This case study involves a licensed PT who worked at an outpatient clinic where her husband offered chiropractic services.
The patient in this case, a woman in her late 60s with a history of chronic neck and back pain, had been a chiropractic patient of the insured PT’s husband for several years. During an adjustment, the chiropractor urged the patient to schedule a consultation with the PT, who had recently joined the practice as a “Physical Therapist and Neurofeedback Specialist”. The chiropractor advised the patient to consult with the PT for “neurofeedback therapy” because he believed that it would benefit the patient.
Based upon the results of an interview and assessment, the PT advised the patient that she was a suitable candidate to benefit from her neurofeedback protocol. Before committing to a pre-paid treatment plan of several dozen treatment sessions, the patient agreed to participate in a trial session. The trial session was administered the same day by the PT, under the supervision of the chiropractor. The patient later said that as soon as she sat down in front of the neurofeedback machine, she felt her neck stiffen, and her heart began to race. Despite expressing her discomfort, the patient decided to proceed with the treatment after the PT assured her that the therapy was “completely safe and non-invasive.”
However, after leaving the office, and over the course of the next several months, the patient reported that she began experiencing a range of symptoms, including fatigue, photosensitivity, anxiety, acute tension headaches, dizziness, and periods of disorientation. The patient reported that her symptoms prevented her from engaging in her customary social activities, as well as her work as a freelance writer. The patient consulted with her primary care physician and a neurologist, who concluded that she apparently suffered “hyperstimulation” of her brain, including brain wave instability and a “pre-seizure” state. The patient was advised to follow the course of treatment for concussions.
The patient followed up with the chiropractor and the PT via a letter, explaining her adverse reaction. The chiropractor left a voicemail for the patient, saying that he was sorry that she was experiencing her symptoms and hoping that she would start feeling better soon. The chiropractor urged the patient to return to his office for a follow-up assessment. The patient was dissatisfied with this response, believing that the chiropractor and the PT failed to take accountability or offer a sincere apology, and refused to return to the office.
The patient filed a complaint against the PT with the SBPT, asserting that the PT failed to obtain informed consent from her prior to initiating neurofeedback therapy and that the PT exceeded the scope of physical therapy practice in providing neurofeedback therapy. The patient asserted that the PT’s administration of neurofeedback therapy caused her to experience symptoms similar to that of a concussion or traumatic brain injury.
It was apparent to the SBPT that the patient believed that the PT’s conduct caused her harm. The SBPT examined the patient’s medical records, the PT’s treatment notes for the patient, and interviewed the patient and the PT. The PT was able to produce treatment notes indicating that prior to initiating neurofeedback therapy, she had reviewed with the patient the nature of the neurofeedback treatment, foreseeable risks associated with the treatment, as well as a discussion of potential alternatives to the treatment. The PT also produced a copy of an informed consent form, signed by the patient, indicating that the patient verified understanding of this discussion.
Based on their review of all of the evidence, the SBPT did not believe that there was probable cause that the insured PT’s conduct violated the Physical Therapy Practice Act or the Board’s rules. The SBPT concluded that there was no clear connection between neurofeedback and physical therapy, and the PT did not indicate to the patient that she would be providing her with a physical therapy treatment. However, the SBPT did conclude that it was appropriate to issue a warning letter, advising the PT that, in the future, she should take greater care to make sure her use of neurofeedback was totally unrelated to physical therapy, and that the distinction was made clear to patients.
While a warning letter is not considered disciplinary action against the PT’s license in her state, a copy of the letter and complaint are a matter of public record in the PT’s licensure file.
The defense of this matter required approximately 18 months, which encompassed the time from when the first claim was filed until the final decision by the SBPT. The total incurred to defend the PT in this matter exceeded $18,500
(Note: Monetary amounts represent solely the legal defense expenses paid on behalf of the insured physical therapist.)
Risk Control Recommendations
Below are some proactive concepts and behaviors to include in your practice to help mitigate the risk of SBPT complaints:
For Physical Therapists:
For Physical Therapist Business Owners:
- Ensure that clinical practices comply with professional standards endorsed by physical therapy and other professional associations, state practice acts and facility/employer protocols.
- Document your patient care assessments, observations, communications and actions in an objective, timely, accurate, complete, and appropriate manner. Documentation should support the treatment plan and satisfy board regulatory and third-party billing requirements. When more than one requirement applies, adhere to the most stringent policy.
- Adopt an informed consent process that includes discussion and teach-back from the patient and demonstrate that the patient understands the risks associated with the treatment. For more information on the informed consent process, as well as informed refusal, refer to the CNA Healthcare Alert Bulletin® Informed Consent and Refusal: A Guide to the Fundamentals as well as the APTA resource, Informed Consent: What PTs Need To Know.
- Respond immediately to any signs or symptoms of a possible patient injury by determining the need for additional medical evaluation.
- Maintain files that can be helpful with respect to your competence as a provider and your character. Retain copies of letters of recommendation, performance evaluations, thank-you letters from patients, awards, records of volunteer work and continuing education certificates.
- Immediately contact your professional liability insurer if you:
- Become aware of a filed or potential professional liability matter against you.
- Receive a subpoena to testify in a deposition or trial.
- Have any reason to believe that there may be a potential threat to your license to practice.
- Emphasize to staff 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.
- Respond promptly to all allegations of incompetent or questionable care, whether initiated by patients or staff. Comprehensively investigate allegations, recommend options for correction, and follow up on recommended actions
- 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.
- For information regarding error disclosures and apologies, refer to the CNA and HPSO publication, Medical Error Disclosure: Acknowledging Mistakes Can Help Promote Optimal Resolution.
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.