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Case Study: Alleged improper management over the course of treatment leads to over $112,000 in legal expenses​

Physical Therapist and Medical Malpractice

Case Study with Risk Management Strategies

Presented by HPSO and CNA

Summary

This case study involves a physical therapy business owner who operated a non-hospital physical therapy clinic. The patient was a 68-year-old male who presented for physical therapy at our insured’s location after he was diagnosed with two prior CVAs and left-sided weakness. Physical therapy was ordered to strengthen his left ankle and to aid with gait training. His initial evaluation was completed March 29th by a co-defendant physical therapist. 

After two appointments, another physical therapist increased the patient's leg weights while doing leg presses from 70 to 90 pounds. Patient alleges that he heard a pop in his left foot during session, but it was not documented. 

The patient subsequently complained of swelling, soreness and bruising of his foot between April 5th and April 17th to the physical therapist as well as to his spouse, who was a nurse. The patient reported that when he complained of swelling, soreness and bruising of his foot, the physical therapy practice’s staff would make statements like, “Would you like some cheese with that w(h)ine?” His spouse did not show much concern, as it is not unusual for patients to be sore after therapy. 

The patient continued to receive physical therapy at our insured’s clinic but sought a podiatrist’s treatment three weeks after incident. The podiatrist documented that the patient had a history of plantar fibromatosis and peroneal tendonitis. The podiatrist was not critical of the physical therapy but diagnosed him with a 5th metatarsal fracture and placed him in a CAM boot.

The patient continued physical therapy with our insured while he was in a CAM boot. He claimed that the physical therapy staff would make him remove his CAM boot before beginning therapy, although the staff later adamantly denied this occurred. He received physical therapy after the fracture to strengthen the left upper extremity for four more weeks.

After the patient finished his physical therapy, he subsequently sought treatment from a chiropractic clinic for the next six-months. The patient suffered on-going peripheral neuropathy pain resulting in hypoesthesia of the left foot. He also suffered from several falls over the next few months and attributed those injuries to the numbness in his left foot and toes dating back to his metatarsal fracture. While he attributed the numbness to his foot fracture, none of his physicians could tell him the cause of his neuropathy. He continues to use his cane because of the foot numbness and his balance being off. 

The patient also claimed that the fracture resulted in him being unable to do the correct physical therapy exercises during the initial stroke recovery window, which could have allowed his hip to be strong enough to support him without using a cane. 


Risk Management Comments

The patient and his wife filed a professional malpractice lawsuit against the insured physical therapy business and all physical therapists and physical therapy assistants who treated him.
  • It was alleged that the fracture caused a delay in his stroke recovery therapy and nerve damage. 
  • The patient claimed that he was limited in some of his activities and had subsequent falls as a result of the foot injury. 
  • He further alleged that the physical therapy records were incomplete or altered, as he tells a very different story about the course of his treatment than the records indicate. (There was no evidence that the healthcare records had been altered.)
  • In addition, it was alleged that surgery to treat his foot had to be delayed because of the blood thinners he was prescribed stemming from the stroke, and that as a result his foot will need corrective surgery in the future. However, there were no plaintiff experts who could support this allegation or verify that he needed surgery to his foot at all. 

The patient made a pre-suit demand of $995,000, which was rejected by the defense, who felt that the demand was excessive, and that their case was very strong. 

Further, the patient had a difficult time securing expert witnesses who could support his assertions. The patient’s physical therapy expert was barred from testifying due to being four months late in submitting his report. The patient’s podiatry expert was also barred from testifying after six failed deposition attempts. Further, the patient’s treating providers had no criticisms of the insured physical therapist or any of the co-defendants who worked at the physical therapist’s practice. 

Several attempts were made to have the case dismissed. Unfortunately, the requests were denied, but instead a judge ordered both parties to participate in mediation.  

Resolution

At mediation, the patient made a lowered demand of $310,000, which seemed to ignore the fact that all of his experts have been barred from testifying.

The defense counsel filed a second request to have the case dismissed prior to going to trial. The ruling took five-months but was successful in getting both the insured physical therapy business owner and his co-defendant employees dismissed from the case. The case lasted for more than five-years before it was finally dismissed, and cost more than $112,000 to defend. 

​Risk Management Recommendations 

The following recommendations are designed to serve as a starting point for physical therapists and healthcare business owners in reviewing their current customs and practices, in order to enhance their patient/client safety practices and protect themselves from liability. 

For Physical Therapists: 

  • Be vigilant about protecting patients from the most common types of injuries, such as re-injuries, fractures and burns.
    • Adhere to organizational treatment protocols when available. If protocols are not available, refer to the applicable state practice act and professional organization guidelines.
    • Review published evidence-based best practices.
    • Determine the level of patient compliance with any prescribed exercises.
    • Establish realistic expectations in regard to the likelihood of experiencing pain during therapy, probable outcomes and duration of treatment.
    • Document all discussions with the patient in the healthcare record.
  • Before establishing a treatment plan, be aware of the patient’s pre- and post-surgical diagnoses, including the extent of the injury (e.g., grade and percentage of tear in a shoulder) as this can significantly affect the likelihood of a re-injury.
  • Document objective facts related to patient care and refrain from using subjective opinions or conclusions.
  • Treat patients with respect and compassion during their course of therapy.
  • Treat patient as a partner when developing a plan of care and throughout the course of treatment.
  • Refrain from using potentially insulting or inappropriate humor, sarcasm or idiomatic expressions (e.g., “No pain, no gain”).
  • Respond immediately to any signs or symptoms of a possible fracture by determining the need for additional medical evaluation.
  • Contact the referring practitioner for any consistent patient complaints, such as pain or swelling.

For Physical Therapy Business Owners:
  • Emphasize to staff on a regular basis 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.
  • Review patient healthcare records regularly to assure that documentation is consistent with treatment plans and meets state and local laws, as well as professional and ethical guidelines. 



Disclaimer

The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2019 CNA. All rights reserved.


This publication is intended to inform Affinity Insurance Services, Inc., customers of potential liability in their practice. It reflects general principles only. It 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. This publication is published by Affinity Insurance Services, Inc., with headquarters at 1100 Virginia Drive, Fort Washington, PA 19034. Phone: (215) 773-4600. All world rights reserved. Reproduction without permission is prohibited.


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