Allegations: Inappropriate application of ice resulting in a burn; failure to supervise a physical therapy (PT) aide; failure to have appropriate policies and to provide staff education and vicarious liability for the PT clinic.
Medical malpractice claims may be asserted against any healthcare provider, including physical therapists (PTs), PT aides and the clinics that employ them. This case study involves a privately owned PT outpatient clinic, a PT owner, a primary PT, a secondary PT and a PT aide. The primary PT and PT aide were both employed by the clinic.
Summary
The patient in this case was a 50-year-old female who underwent a total knee arthroplasty (TKA). She had a history of five prior knee surgeries, including the insertion of a tibial tubercle staple at age fourteen. The orthopedic operative report for the TKA revealed that the staple was embedded and had to be surgically removed. The day after surgery, the patient was discharged home with instructions to schedule postoperative physical therapy. She scheduled an initial evaluation with the insured clinic and also scheduled follow-up physical therapy sessions with a secondary PT, who typically treated her when she was residing at her vacation home.
On the third postoperative day, the patient presented to the clinic for the initial PT evaluation. She complained of a 9 out of 10 pain level and difficulty ambulating. The primary PT noted significant swelling, as well as fracture blisters at the lateral aspect of the femur and tibia, but neglected to document these findings. He consulted with the PT business owner, who also examined the skin, and agreed with the primary PT’s determination that fracture blisters were present. A few gentle exercises were performed, followed by the application of ice. The primary PT applied a standard hospital-grade ice bag (non-gel) for fifteen minutes. The ice bag was wrapped in a towel and applied to the patient’s anterior knee. The primary PT was present for the entire session.
The following day, the patient returned to the clinic with continued complaints of pain and swelling of the affected knee. The primary PT evaluated the patient and then directed the PT aide to guide the patient through the exercise program and apply ice. After the patient completed the exercises, the PT aide applied ice using the hospital-grade ice bag. However, he failed to wrap it in a towel. The PT was present in the clinic, but did not return to see the patient again during this session. The patient had no complaints and left the clinic in stable condition. However, shortly after leaving the clinic, she noted several blisters on the side of her knee where the ice bag had been placed and immediately called the clinic to speak with the PT. The PT was not available when the patient called and did not return the call. This prompted the patient to seek advice from her secondary PT. The patient took a photograph of the affected area and sent it to the secondary PT, who informed her that she had suffered a “frostbite” burn caused by the application of ice by the PT aide.
The patient did not return to the primary PT for further treatment. One week later, she was evaluated by the orthopedic surgeon who documented that the patient suffered a burn due to excessive icing during physical therapy. He referred the patient to a burn center for follow-up treatment. The patient presented to the burn center where she was examined by a nurse practitioner (NP). Based upon the subjective information provided to her by the patient, the NP concluded that the wound was an “ice burn”. The NP did not review the patient’s hospital records nor did she contact the primary PT or the orthopedic surgeon to obtain additional clinical information about the TKA procedure or physical therapy treatment. The NP debrided the wound, applied dressings and treated the patient for a four-week course, at which time the wound was determined to be completely healed.
Risk Management Comments
Three months after she was discharged from the burn center, the patient (plaintiff) filed a lawsuit asserting that she suffered a third degree burn as a result of inappropriate ice application by the PT aide. The complaint specifically noted that, during the second therapy visit, the ice pack was left on the patient’s knee for a prolonged period of time and was applied directly to the skin without a cloth barrier. The patient testified that she had no complaints regarding the care provided by the primary PT during the initial session, but was critical of the PT for failing to supervise the PT aide during the second session and for not returning her call. The patient stated that her motivation to file a lawsuit was altruistic, testifying that she wanted to “fix the broken system” and that she planned to donate the settlement money to a national burn center.
During the discovery process, the primary PT was deposed and testified that he had identified the fracture blisters before the application of ice during the initial evaluation and that he had attributed the blisters to the patient’s recent surgery. The primary PT was questioned extensively as to why he failed to contemporaneously document these findings in the healthcare information record and, instead, entered an addendum months later. The primary PT testified that he documented the late entry when he learned that the patient was undergoing treatment for a burn because he wanted to ensure that the documentation was complete. In response to questions about the patient’s attempt to reach him, the primary PT testified that he had been made aware of the patient’s message and admitted that he should have returned the patient’s call. (Notably, the plaintiff’s attorney attempted to amend the complaint to add a fraudulent/willful misconduct cause of action for the medical record addendum. However, the court denied the request to amend the complaint).
The primary PT testified that it was his customary practice to apply the ice bag himself, but that he would occasionally delegate this task to the PT aide, which aligned with professional standards for delegation.There was a clinic policy in place at the time of this incident regarding the process for ice application. The PT testified that he did not feel that direct supervision was necessary because he assumed that the PT aide was conversant with the clinic policy and was competent to perform this task. The clinic held annual staff training sessions for PT aides which included a review of policies and procedures for common tasks. The PT aide who treated the patient testified that he was not familiar with the clinic policy regarding ice application and also was not aware that ice should not be placed directly on the skin of a patient who had blisters or other types of skin breakdown.
The defense PT expert supported the primary PT and believed that the application of ice did not cause the fracture blisters. He also noted that the type of ice bag used in this case had a built-in protective cloth exterior. He stated, however, that placing the ice bag directly on fracture blisters may have exacerbated the skin damage. The primary PT could not recall whether or not he instructed the PT aide to avoid placing the ice directly on the fracture blisters.
The orthopedic surgery expert for the defense agreed that the injury was not related to the use of an ice bag. He stated that fracture blisters are a known complication of orthopedic surgery, caused by swelling and compromised blood flow, and that the patient’s history of multiple orthopedic surgeries predisposed her to this complication. In addition, the timeframe within which the wound developed was consistent with the course of a fracture blister, rather than a burn. One would expect the skin to immediately appear white after an ice burn. The plaintiff’s skin did not appear white in the photograph that the patient took immediately after the second PT session when she noticed the blisters. The orthopedic surgery expert concurred that postoperative fracture blisters typically do not result in the extensive tissue damage seen in this case and opined that the scar tissue associated with the five previous orthopedic surgeries may have been a causative factor. The orthopedic and PT defense experts explained that the ecchymosis seen in another photograph, taken by the patient shortly after the surgery and prior to the initiation of physical therapy, was in the same area as the “burn.” Both experts believed that the standard of care was not breached. However, they were critical that the primary PT did not document his initial skin assessment contemporaneously.
The PT business owner was also deposed and testified that he examined the patient’s skin during the initial evaluation and concluded that the patient had fracture blisters from the orthopedic surgery. He was questioned regarding prior lawsuits against the clinic and testified that there was a similar prior lawsuit involving a burn injury related to the application of an ice pack by a PT aide. The PT business owner clarified that the ice pack utilized in the previous lawsuit was a gel-pack and not the same type of ice bag used in this case.
The defense team summarized the strengths of the case as follows:
- Discovery that the patient had also taken a photograph postoperatively supporting the position that fracture blisters were present prior to the initiation of physical therapy.
- During the initial PT evaluation, the primary PT and PT business owner assessed the skin and noted fracture blisters prior to the application of ice.
- The orthopedic surgery expert confirmed that the timeline of the wound progression aligned with what would be expected for fracture blisters.
- The picture of the wound taken by the patient after the second PT session did not depict a white appearance as would be expected with an ice burn.
Although the defense experts supported the care rendered by the primary PT and opined that the ice application was not likely the cause of the wound, they were critical of the PT for failing to return the patient’s call and also failing to document a comprehensive assessment regarding the pre-existing fracture blisters. The lack of documentation would limit the defense team’s ability to demonstrate to a jury that the blisters were present before the initiation of physical therapy and that the application of ice did not cause a burn. The late documentation after the lawsuit was filed also was viewed as a defense challenge. The defense experts were critical of the PT business owner’s laxity with policy updates and staff education, which they believed would be highlighted by the plaintiff’s counsel during a trial.
Resolution
In view of the strong defense position on causation and the fact that the focus of the case was on the PT aide, the plaintiff agreed to dismiss the primary PT from the lawsuit in exchange for an agreement to pursue settlement via mediation. Based upon the defense team’s assessment of a low likelihood of a defense verdict, settlement discussions were initiated, and the case was settled in mediation. The PT business owner updated the clinic’s policies after the case was settled, requiring skin integrity checks before, during, and after ice or heat therapy is applied. In addition, the PT business owner enhanced the staff education curriculum and also now required that a licensed provider return patient calls related to clinical issues.
Total Incurred: Greater than $97,000
(Monetary amounts represent the payments made on behalf of the PT firm and the employed PT aide.)
Risk Management Recommendations
For Physical Therapy Business Owners:
- Provide ongoing education for PTs, PT aides and PT assistants, and tailor education to the clinical needs of the patient population.
- 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.
- At a minimum, perform 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 clinical protocols. PT 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.
- 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 and students 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 staff members.
- Inspect and/or test equipment prior to putting into use, documenting safety checks and preventive maintenance for all equipment per manufacturer guidelines and facility policies.
- Remove any equipment that appears broken, unreliable, or unsafe. Immediately sequester any equipment that is involved in a patient injury.
For Physical Therapists:
- Be vigilant about protecting patients from the most common types of injuries, including burns. Before establishing a treatment plan, be aware of the patient’s pre- and post-surgical diagnoses, which can affect the likelihood of a re-injury.
- Monitor all services provided by physical therapy assistants, physical therapy aides or physical therapy students, in compliance with the APTA guidelines, 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, comprehensive, 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 Code of Ethics for the Physical Therapist.
- Recognize patients’ medical conditions, co-morbidities and any additional specific risk factors that may affect therapy, including:
- Diabetes
- Sensory loss involving heat/cold sensitivity, hearing, vision, speech, or proprioception
- Neurological impairments, dementia, or behavioral health concerns
- Cardiac problems
- Coagulation disorders
- Pulmonary disease
- Side effects of medications or dietary supplements
- Evaluate and document each patient’s skin integrity, neurological status, and ability to perceive pain prior to the course of treatment and periodically thereafter, and communicate the findings to the physical therapy team.
- Warn patients of potential treatment-related discomfort. Assist the patient in recognizing the difference between discomfort and pain and ensure that the patient understands the need to report pain levels.
- Closely supervise and/or monitor patients during treatment, including frequent skin checks. Arrange for someone to stay with the patient if it is necessary to leave temporarily for any reason.
- Cease treatment/procedure immediately if the patient expresses discomfort or states that the therapy seems excessive, painful or inappropriate in any way.
- Discuss any perceived alterations in skin integrity with the referring practitioner and healthcare team.
For Physical Therapy Aides:
- Consult with the supervising physical therapist when treating new patients or those with conditions with which you are unfamiliar.
- Participate in educational programs offered, and be conversant with all policies applicable to the position of a physical therapy aide.
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.
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