Physical Therapist and Medical Malpractice Case Study with Risk Management Strategies
Presented by HPSO and CNA
Medical malpractice claims may be asserted against any healthcare provider, including physical therapists. This case study involves a supervising physical therapist/physical therapy business owner of a private outpatient office and a physical therapy student.
The patient was a 45-year-old male who injured his left shoulder while using a nail gun. Six weeks prior to coming to the physical therapy practice, the patient, who was performing some work at his house, felt a pop in his shoulder while using a nail gun.
The patient initially scheduled his evaluation with the insured physical therapist (PT) on April 7th but, for reasons unknown, he cancelled the April 7th appointment and was not seen until May 19th. During his evaluation, he complained of a burning sensation in the left arm, as well as numbness in his left fourth and 5th fingers. His history included a prior complex traumatic fracture to his left proximal forearm due to a motorcycle accident.
On examination, he exhibited tenderness over the anterior shoulder and pain while attempting to lift his arm up from his side. The exam notes indicated that he seemed to have full strength of the upper extremity and a negative Tinel’s in his ulnar nerve. Neither following the incident nor prior to the physical therapy evaluation, the patient did not undergo diagnostic imaging. After the evaluation, the PT suggested that the patient go to the adjacent urgent care clinic for x-rays. The x-rays, which included his cervical spine and left shoulder, were unremarkable. The urgent care provider then referred the patient to an orthopedic surgeon for a possible rotator cuff tear.
The surgeon ordered an electromyography (EMG) to evaluate upper extremity numbness and an MRI to evaluate a rotator cuff tear. His EMG indicated some ulnar nerve swelling across the left elbow and some changes of the radial nerve that was considered to be related to the patient’s prior fracture. The MRI revealed evidence of rotator cuff tendonitis, rather than a definitive tear with evidence of impingement. The surgeon provided an intramuscular injection of steroids and instructed the patient to return in four weeks.
Four weeks later, the patient returned to see the surgeon, stating that the injection had provided relief for a short period of time. However, he reported that his pain had returned. In discussions with the patient, he revealed that he had gone fishing frequently during the past four weeks and had noticed pain when casting his reel. Examination demonstrated that he had full range of motion but was experiencing continued tenderness over the anterior shoulder and pain with impingement. The patient stated that he was not interested in any additional conservative treatment options and wished to proceed with a shoulder arthroscopy.
On August 2nd, the patient underwent arthroscopic surgery. During the procedure, surgical repair of his rotator cuff was performed due to a subacromial decompression and a near full thickness rotator cuff tear. His initial recovery was uncomplicated, and he was referred to the insured PT’s physical therapy clinic two-weeks post-surgical repair.
At his eight-week post-surgical follow up appointment, the surgeon noted that the patient was healing and progressing as expected. He had good range of motion to the elbow with some limitations in motion of the shoulder secondary to pain and stiffness. The surgeon believed that the patient was progressing on schedule and recommended continuing with passive range of motion exercises at home and in therapy.
The following day, a physical therapy student was assisting the patient with his rehabilitation during the physical therapy session. The student was attempting to increase the patient’s extension through a thoracic extension exercise by using a foam roller placed under the patient’s shoulders. Lying supine, the patient was resting his left hand on his forehead and his right hand on the back of his head. While the patient was performing slow extension exercises, the physical therapy student placed his hand on the patient’s left elbow to help increase the shoulder range. After about two repetitions, the patient verbalized that he experienced a very loud pop and had increased pain and weakness in his left arm.
Following the incident, the insured PT assessed the patient and noted soreness with range of motion at the neck, full active abduction of the left shoulder but pain with drop arm tests. The patient reported tenderness over the anterior shoulder with some weakness of his cuff, despite completing the remainder of his exercises. The PT was concerned that the patient may have disrupted his cuff and contacted the surgeon while the patient was in the clinic. After the PT explained the exercise and patient’s injury, the surgeon believed that the student’s actions may have simply torn some post-surgical adhesions. The surgeon prescribed a steroid dose pack and pain medication, instructing that further physical therapy should be halted until he could evaluate the patient.
During the next follow-up appointment with the surgeon, the patient stated that he was feeling better, but that his back was sore because he had slipped out of his boat over the weekend. He verbalized that his shoulder was improving, and that he was not experiencing the pain that he previously had during therapy. On examination, the patient had excellent active abduction, fluid motion, a negative drop arm test, but continued to experience some weakness. The surgeon recommended that the patient continue therapy. One week later, however, the patient informed the surgeon that he had not returned to therapy due to shoulder pain. Upon examination, the patient demonstrated approximately 130 degrees of abduction but with increased pain. He also had weakness with the drop arm test. He was referred for an MRI.
The MRI was normal, but the patient continued to complain of pain in follow-up visits to the surgeon. The surgeon reported that the patient had very good range of motion but noted some edema in the acromioclavicular joint and pain with abduction. The surgeon ordered a joint injection.
At the next appointment with the surgeon, the patient reported that he noticed a few days of improvement following the joint injection but stated that the pain had recurred such that he was unable to complete a round of darts with his friends. At this point, the patient was five months post-op, and the patient noted continued pain, expressing that it had worsened due to physical therapy. At the patient’s request, the surgeon proceeded with a repeat arthroscopy, which revealed evidence of a small partial tear that required repeat rotator cuff repair.
The patient returned to physical therapy after his second repair with no further complaints. However, the PT documented that the patient was non-compliant with restrictions, such as not wearing a sling, fishing and playing darts. The PT was unaware that the patient continued to have problems after his second repair until he received a call and letter from the patient’s attorney. The patient/plaintiff filed a lawsuit against the insured PT as the treating therapist and business owner, the physical therapy student and the university that the physical therapy student attended. Allegations against the insured PT included: Improper management over the course of treatment; failure to refer patient to a higher level of care or contact referring practitioner; and failure to supervise and monitor patient.
The patient asserted that the PT was not properly supervising the physical therapy student during therapy. The patient believed that the physical therapy student had applied too much pressure to his injured shoulder and overextended his arm during therapy, which re-tore the rotator cuff. After the patient’s second rotator cuff was repaired, he re-tore it a third time, requiring his shoulder to be plated. The patient is now permanently injured and unable to fully use his arm. He had previously worked as a building contractor and could not return to work due to his injury.
Risk Management Comments
The patient’s (plaintiff) expert witness reported that in his professional opinion, the physical therapy student applied forceful manipulation to the plaintiff’s shoulder, which caused a re-tear to his rotator cuff. In the expert’s view, the forceful manipulation was much greater than a Grade 1 mobilization and inappropriate for the patient at the time of his recovery.
The defense experts reviewed the case, reflecting an overall favorable review of the PT’s actions and documentation. The healthcare documentation, in the records of both the orthopedic surgeon and the PT, clearly noted that the patient was non-compliant with therapy and engaged in activities against the advice of his orthopedic surgeon and the PT.
During the claim investigation, the defense attorney determined that there were occasions when physical therapy students would be left unsupervised. Typically, when the insured PT left a physical therapy student or physical therapist technician unsupervised, he would be away for less than 20-30 minutes. However, on the day that the patient stated that he was injured, the insured PT recalled that he had an appointment which ran long and reported that he had arrived shortly before the plaintiff’s appointment was finished. Once the insured spoke to the physical therapy student, the PT assessed the patient and contacted the patient’s orthopedic surgeon about a potential re-tear. The defense experts believed that the insured PT was lax regarding his supervision of the physical therapy student. Therefore, defense experts were cautious about taking the case to a jury trial. The defense also was concerned that the university’s agreement with the insured PT required that he supervise physical therapy students at all times that the students were with patients.
Defense counsel assessed the potential exposure/claim value of the case as being between $200,000 and $250,000. Due to the defense’s concerns about taking the case to a jury trial, the insured PT agreed to pursue mediation. The university and the physical therapy student were dismissed from the case prior to mediation, leaving only the insured as treating PT and physical therapy business owner as the named defendant(s). A settlement between the plaintiff and the insured PT was reached during mediation.
The case settled on behalf of the PT and his practice for a total incurred of greater than $150,000.
(Note: Monetary amounts represent the payments made solely on behalf of the physical therapist.
Risk Management Recommendations
- Be vigilant about protecting patients from the most common types of injuries.
- Patients may be more or less prone to re-injure themselves based upon their condition prior to physical therapy.
- Before 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), as this can significantly affect the likelihood of a re-injury.
- Never leave the therapy area when the patient is receiving services from another level of staff.
- Student oversight: Providing physical therapy student oversight can be an excellent means of training future PTs and may help to recruit qualified employees upon graduation and licensure. The following recommendations can help reduce the risk of patient injury and potential liability when serving as a preceptor for a PT or PTA student:
- Meet with the student prior to any patient contact, in order to review the facility’s policies and procedures and establish clear expectations and boundaries regarding patient care.
- Maintain a clinical agreement with the student and/or school that delineates, subject to advice of legal counsel:
- Roles and responsibilities of the preceptor and student.
- Professional liability requirements and proof of coverage of the school and/or student.
- School expectations (e.g., weekly report from the PT on the student’s progress).
- Reasonable limitations regarding patient interactions and interventions.
- Criminal background checks
- Education on state and federal regulations (e.g., patient privacy)
- When considering a contract/agreement with a school, college or university that includes the responsibility for supervising physical therapy students, ensure that the contract/agreement includes the following parameters, amongst others, subject to advice of legal counsel:
- Students have received appropriate education and training prior to beginning the clinical rotation.
- Individual who has sole and primary responsibility for patient care and treatment has been designated.
- Students agree to adhere to the policies, rules, and regulations of the clinical site.
- Mutual agreement is obtained that the clinical site, the university, their employees, agents, servants and students perform as independent contractors at all times.
- Require that all parties maintain professional liability coverage in amounts deemed adequate by all parties.