Medical malpractice claims may be asserted against any healthcare provider, including physical therapists (PTs), physical therapy assistants (PTAs) and the firms that employ them. This case study involves a privately-owned physical therapy outpatient clinic, a PT and a PTA. The insured physical therapy (PT) business owner had been practicing for approximately 25 years and had owned the clinic for ten years. The PTA was a new employee and had been working at the clinic for three months. The PT was a per diem employee and had been working intermittently at the clinic for approximately one year to cover staffing shortages.
Summary
This case involves a 30-year-old female patient with a past history of osteosarcoma of the left lower extremity. Oncology treatment included chemotherapy, radiation and an above-the-knee amputation. The patient was subsequently fitted for a prosthesis, and PT was ordered for gait training. The patient was progressing well with PT. She had advanced from using a walker, to using two crutches and then completed two PT sessions using one crutch.
At the next PT session, the patient arrived at the clinic using two crutches. Although she had been introduced to the technique of ambulating with one crutch, the patient informed the PTA upon arrival that she did not yet feel confident with this technique and had been using two crutches at home. The PTA assisted her onto the exercise bicycle for a ten-minute warm-up and advised the patient that he would return when the warm-up was completed. Notably, in all previous sessions, the patient had been accompanied by a PTA when transitioning between stations. The PTA left one crutch beside the bicycle, as the plan for the day was to practice ambulating with one crutch. When the warm-up was completed, the PTA did not immediately return, and the patient did not see him in the vicinity. The patient did not know which PT was assigned to her, as the PT staffing had been inconsistent. She had been assigned a different PT at every visit and was frequently given varied instructions about the exercises and overall PT plan. The patient called out to a PT who was working in the room with another patient to inform her that she was ready to move to the next station located approximately 30 feet away. The PT summoned her with a hand signal, directing the patient to proceed to the parallel bars independently. As the patient began walking towards the parallel bars using one crutch, she had to navigate around an area of torn carpet and tripped and fell forcefully onto her left side, hitting an exercise machine. The patient reported that she had severe hip pain (10/10) and was assisted to an exam table by the PT, who then applied ice and electrostimulation. She was transported by a family member to the hospital and diagnosed with a left femoral neck fracture and dislocation.
The following day, a left hemiarthroplasty and surgical fixation of the fracture was performed on the patient. During the hospital admission, the prosthesis was evaluated, and it was determined that the device was functioning properly with an appropriate fit. The orthopedic surgeon concluded that the fall was unrelated to the functioning of the prosthesis.
The patient’s postoperative course was complicated by the development of bony protrusions and a neuroma at the amputated limb site. A surgical revision of the distal femur, excision of the neuroma and a sciatic nerve transposition were performed. As a result of the fall and related complications, the patient’s rehabilitation was delayed. Due to her fear of falling and chronic limb numbness and pain, her ability to successfully ambulate using the prosthesis was limited.
Several months following the incident, a lawsuit was filed naming the PT clinic, PT business owner, treating PT and PTA. Allegations included:
- Failure to monitor and supervise a patient with a new prosthetic device resulting in a fall;
- Failure to provide a safe environment;
- Failure to document pertinent patient information in the healthcare information record;
- Failure to have appropriate policies and procedures for supervision of staff;
- Vicarious liability for employees’/supervisees’ actions.
Risk Management Comments
The plaintiff (patient) asserted that the PT and the PTA failed to follow appropriate fall prevention protocols for a lower-extremity amputee and that the PT business owner failed to institute policies and staff training regarding patient monitoring. The plaintiff also noted environmental safety issues related to the clinic’s carpeting, asserting that the presence of adverse surface conditions probably contributed to her fall.
The patient testified that she only had two opportunities to practice walking with one crutch prior to the fall, and that she did not feel ready to ambulate independently with one crutch. She asserted that the PT improperly advised her to ambulate to the next station without assistance. When asked why she did not wait or request additional assistance, the plaintiff testified that she did not want to bother the staff because the PTA told her that the clinic was short-staffed that day. The plaintiff further noted that there was a lack of continuity of assigned therapists due to ongoing staffing shortages, and that she would often receive conflicting instructions from different therapists. The PT and PTA assigned to her care on the date of the fall had not worked with her previously and were not conversant with her routine.
The plaintiff’s PT expert opined that the patient should have been assisted with ambulation, as she had limited practice with using a single crutch. He testified that fall prevention techniques, such as stand-by assist, contact guard or a wheelchair-follow should have been considered for practicing one-crutch ambulation. The expert also noted that the PT should have assessed the patient’s balance before assuming she was capable to ambulate independently. Further criticism alluded to the PTA’s lack of experience in working with amputees and the fact that he failed to monitor the patient. The PTA testified that he was distracted by a personal phone call and admitted, in retrospect, that he should have asked a coworker to cover for him in his absence. He also stated that he did not receive training specific to amputee patients.
The patient’s treating prosthetist provided expert testimony in support of the plaintiff’s case. She was present in the clinic on the day of the fall to assess the patient’s prosthesis and was sitting at the front desk (15 feet away) when the fall occurred. She did not see the patient fall, but testified that when she went to assist the patient after the fall, she observed that the carpeting was in disrepair. The prosthetist testified that the prosthesis was well-fitting and functioning properly. In her view, the patient was not stable enough to ambulate independently with one crutch.
The PT testified that she did not recall whether or not she signaled to the patient to dismount from the bicycle independently. She had not been assigned previously to this patient, and, although her customary practice was to review new patients’ PT plans before each session, she could not recall if she was aware of the patient’s mobility status and balance assessment. As the PT did not have a detailed recollection of the incident, there were factual disputes about the events preceding the fall.
The PT expert for the defense opined that falls are not always preventable for amputees during the gait training process. However, the defense was unable to find an expert to support the standard of care for the PT treatment provided on the day of her fall. An additional defense challenge was related to the lack of documentation related to the fall. Although an incident report was completed, the daily note for this session did not mention the fall and was an exact copy of the daily note from the previous appointment. The PTA explained that the usual practice for documentation was to “clone” or “copy and paste” the note from the previous appointment and then update it after the session. In this case, the previous note had already been cloned prior to the patient’s fall, but the PT and PTA failed to update it.
Resolution
Defense counsel believed that the plaintiff’s expert’s criticisms could be compelling to a jury and that it would be plausible for jurors to conclude that the fall was preventable. Based upon this, the lack of expert support for the defense and the potential sympathy factor for the plaintiff, defense counsel believed that there was a limited chance for a successful jury verdict. The parties agreed to mediation, and the claim was settled on behalf of the PT clinic, the primary PT, the PT business owner and the PTA.
Total Incurred: Greater than $500,000
(Monetary amounts represent the payments made on behalf of the employed PT and PTA, the clinic and the PT business owner.)
Risk Management Recommendations for Physical Therapy Business Owners:
- Develop written policies and procedures that align with the APTA Standards of Practice. Review them regularly and revise, as necessary.
- Implement a written plan for continuous performance improvement for all physical therapy services.
- Perform, at a minimum, annual performance reviews for each employee, including a review of errors, “near misses,” and documentation, as well as directly observed competencies.
- Ensure that clinical practices comply with standards endorsed by physical therapy professional associations, state practice acts and clinic protocols. Physical therapy business owners, as employers, are vicariously liable for the conduct of employees who are acting within the scope of their employment. The professional conduct of employees should be considered as extensions of the business, and PT business owners must ensure that staff also view their actions in this manner.
- Provide ongoing education for physical therapists and physical therapy assistants, upon hire and on an ongoing basis thereafter. Tailor education to the clinical needs of the patient population.
- Ensure a safe environment of care, including ongoing inspections of equipment and floor surfaces.
- Implement steps to limit staff turnover, ensure safe staffing levels and promote continuity of staff assignments for patients. Consider new approaches to maximize efficiency and address staffing deficits, while ensuring that all staff members work within their competency and legally authorized scope of practice parameters.
- Be knowledgeable about the levels of supervisory responsibility of a physical therapist, and know when it is acceptable for a physical therapist to have general, direct or direct personal supervision of physical therapy assistants, physical therapy aides, physical therapy students and any other clinical providers working at your place of business.
- Verify that supervisors/managers are exercising due diligence to ensure that PT staff perform only those tasks that are appropriate, within their training, and within their jurisdictional and designated scope of practice. The PT business owner should confirm that monitoring by a PT is mandatory when delegating any therapy-related tasks to PTAs or other staff members.
Risk Management Recommendations for Physical Therapists:
- Be vigilant about protecting patients from the most common types of injuries. Before establishing a treatment plan, be aware of the patient’s pre- and post-surgical diagnoses, which can significantly affect the likelihood of a re-injury.
- Conduct a brief check (“screening”) of a patient’s fall risk. If the screening shows that a patient is at risk, perform a comprehensive evaluation for risk of falling, utilizing a fall assessment tool/template that considers the following factors, including:
- Review of medical history, including a check of the patient’s heart rate and blood pressure measurements at rest and while the patient changes positions (from sitting/lying to standing).
- Previous fall history and associated injuries.
- Gait, balance, strength, and walking ability assessment.
- Foot and leg problems, including a foot and footwear assessment.
- Simple vision test.
- Problem-solving, safety considerations and cognitive ability.
- Medications that increase fall risk.
- Need for mechanical and/or human assistance.
- Safety assessment for environmental hazards.
- Monitor all services provided by physical therapy assistants, physical therapy aides or physical therapy students, supervising the treatment plan, progress and outcomes.
- Document all pertinent patient information, including unexpected incidents, in the patient healthcare information record in an objective, concise manner. Maintaining consistent, thorough, and timely documentation of services provided is one of the physical therapist’s primary professional responsibilities, as noted in Principle 7E of the American Physical Therapy Association’s Code of Ethics for the Physical Therapist. Consider the following when documenting in the patient healthcare information record:
- Document patient assessments, communications and actions to support the treatment plan and satisfy board, regulatory and third-party billing requirements.
- Refrain from documenting subjective opinions or conclusions, as well as derogatory statements about patients or other members of the healthcare team.
- Include the patient’s acknowledgement of agreement to the treatment plan and awareness of the expected outcome. In addition to informed consent, document informed refusal of services.
- Note the use of an interpreter, when indicated.
- Maintain a copy of written materials provided to patients.
- Limit the use of copy and paste or cloning, which may result in erroneous documentation. The copy and paste feature in electronic healthcare records can be a time saver, but errors, including errors of omission, can easily occur and may adversely affect the record’s reliability and usefulness.
Risk Management Recommendations for Physical Therapy Assistants:
- Never leave the therapy area without notifying the PT team when patients are actively engaged in an exercise.
- Consult with the supervising physical therapist when treating new patients or those with conditions with which you are unfamiliar.
Disclaimers
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. This material is for illustrative purposes and is not intended to constitute a contract. 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.
This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. This information is provided for general informational purposes only and is not intended to provide individualized guidance. All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. Any references to non-Aon, AIS, NSO, HPSO websites are provided solely for convenience, and Aon, AIS, NSO and HPSO disclaims any responsibility with respect to such websites. This information is not intended to offer legal advice or to establish appropriate or acceptable standards of professional conduct. Readers should consult with a lawyer if they have specific concerns. Neither Affinity Insurance Services, Inc., HPSO, nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information.
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