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Witness for the PT

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Vol. 16 •Issue 19 • Page 27
Witness for the PT

How an expert witness can make or break your malpractice case

Compared to other health care professions, physical therapy has had it relatively easy when it comes to malpractice suits. Cases against physical therapists are not nearly as common as those against neurosurgeons and obstetricians. However, that is not to say that PTs have no need to worry at all. The number of cases against PTs seems to be on the rise.

The Healthcare Providers Services Organization (HPSO) reported in the 2005 Risk Advisor Newsletter that between December 2002 and June 2004, cases against PTs increased by 41 percent. This was according to CNA Claim Data for 2004.

Standards vs. Causation

While physical therapists get quite an education about their profession at school, there is much more to learn in the field when it comes to working with people. Some therapists have the unfortunate experience of getting this education in the courtroom.

J. Scott Stephens, MS, PT, a private practitioner in North Carolina, has done his fair share of learning in the courtroom. Fortunately, his education hasn't come from sitting in the defendant's chair. Stephens works with numerous malpractice cases both for and against physical therapists as an expert witness.

Stephens got his start when he was contacted by a law office years ago at the recommendation of a colleague. Stephens' background of PT practice experience, along with years of active participation in and numerous positions with the APTA and the Virginia PTA and as founding president of FSBPT, has made him an ideal candidate for providing an expert opinion about the standards of care in the physical therapy profession.

Today, Stephens continues to maintain his private practice services while also providing expert testimony and opinion for interested legal teams in various states.

"I am a standard-of-care witness, not a causation witness," said Stephens. "When I issue my opinion on a standard of care, it is based on my experience from a national perspective and having been in a lot of states from all of my professional association activities. I have to be very careful to express my opinions only on what the physical therapist does."

The distinction between a standard-of-care witness and a causation witness is an important one to make in malpractice cases. While an expert witness may be ideal for standard-of-care opinion, he may not have the specific knowledge required to offer an opinion on causation.

"The standard of care is based on what a reasonably prudent physical therapist would do in the application of services. Because someone violated the standard of care doesn't necessarily mean that person caused an injury. Proving that may take a witness who can discuss something like force components and strength of bone."

An example Stephens offered to clarify causation testimony was that of a case he was involved in where an individual claimed to have been burned by a hot pack prescribed by a therapist.

"They had a burn specialist testify as to the amount of time it would require for a burn to occur, and at what point in time that burn will be as bad as it's going to be," said Stephens. "As the standard-of-care witness, I'm not testifying whether or not the hot pack is generating enough heat for it to burn the person. I testify to 'what is the standard of care for a physical therapist?'"

The hot pack is a common example of the need for a standard-of-care witness. Stephens explained that the hot packs often come with a booklet that explicitly states that individuals should not lie down on the pack. However, according to Stephens, "sometimes the written documentation—not what the therapist generated, but what comes on the product—is not consistent with the standard of care for the profession. Many times, a physical therapist will have a patient lay on the hot pad because they know what kind of padding to use and how much," he said.

In a case such as this, the plaintiff's lawyer could argue that the therapist was at fault because he did not follow the instructions listed on the product. The defense, in turn, would bring in a witness like Stephens to explain the standard of care for use of the hot pack in a clinical setting.

Calling on an Expert

Typically, when Stephens is approached by a law office to review a case, the first step is an interview process. It is the responsibility of the legal team to not only establish the expertise and credentials of the witness, but also to find out the witness' position on the details of the case.

David L. Herbert, JD, a senior partner with the law firm Herbert & Benson, located in Canton, OH, has worked on a number of malpractice cases in various health care professions. Herbert has worked on both sides of these cases, representing both plaintiffs and defendants; however, for 15 years the specialty of his firm was defending providers. His experience has often put him in the position to call on an expert witness. "We look for educational background, training experience, what kind of practice [the therapist] has and whether the therapist spends a majority of time in the active clinical practice of physical therapy," he said.

Herbert added that it is important to find out where the individual is licensed, as practice acts vary from state to state. Additionally, it is important to consider potential conflicts of interest. "Do they know the people involved? Do they know the lawyers? Have they testified before, either on behalf of plaintiffs or defendants? If so, you want to get a copy of the testimony. You want to make sure no one has given an opinion on a prior issue that's contrary to what you have in your own case," said Herbert.

Stephens agreed. He admitted that he has had to remove himself from cases before because he knew a therapist involved in the case.

Case in Point

According to HPSO, the most common cases against physical therapists are brought on because of allegations such as improper therapeutic exercise, failure to monitor, improper management of therapy, improper manual therapy and use of equipment. In the first six months of 2004, there had been 1,600 claims brought against PTs. Of those cases, 13 percent resulted in injuries related to burns.

Stephens' experience with these cases falls in line with the HPSO findings, with burns and falls leading the pack in resulting incidents. "The cases that come across my desk typically involve falls or burns, or both. The ones that we typically saw at APTA doing the case reviews were also falls and burns. I'm seeing more rotator cuff repair failures during therapy for shoulder injuries, too," he said.

Stephens admitted that he has had to testify both on behalf of accused PTs and against them. In some cases, such as when a patient alleges the therapist failed to monitor, Stephens had argued that the therapist did not meet the standard of care.

"I believe there's a standard of care that says you don't abandon your patient when you're giving them an activity that challenges their skills. I've had a case where the therapist was doing stair climbing training with patients. The therapist was busy writing a note to the side of the staircase and the patient fell backward, hit his head and died," said Stephens.

In some cases, Stephens said the case won't even go to trial because the defendant is clearly without a defense. An example is one case in which he recommended the defense attorney settle the claim as soon as possible. "There was a physical therapist aide doing a functional capacity evaluation. When the patient, who was pushing a weighted sled, asked 'is this supposed to hurt?' the aide said, 'I don't know. I've never done this before.'"

According to Stephens, it is important to note that all physical therapists should have their own insurance coverage. "Even if your employer will provide you with liability insurance, my recommendation—and, I think, the recommendation of the APTA—is to still have your own liability insurance," he said.

Beware of Patient?

As anyone in the field of health care can attest, patient care is not simply diagnosis and treatment. One of the main things a patient is looking for when coming to a PT is the feeling that the therapist cares for her, treats her well and communicates with her.

"Maintaining the typically excellent patient-therapist relationships that we have with our patients [is important]," said Stephens. "We are fortunate to work as closely with people as we do. Having patients who enjoy coming to therapy and who think you truly care about what happens to them goes a long way in avoiding their desire to be litigious."

On the other hand, while the patient's personal expectations remain high these days, the professional expectations may have changed, said Stephens. "I think that consumers of health care have higher expectations of providers than they used to have, in terms of expecting perfection. If their expectations aren't met, they want to blame somebody—and it's seldom themselves," he said.

While acknolwedging that patients are obviously entitled to the best possible service, Stephens admitted that it is not easy being a PT in these litigious times. "As physical therapists, we challenge people on a day-to-day basis and that's our job. I don't believe that just the presence of an injury means there is a violation of the standard of care," he said.

Stefanie Kurtz is on staff at ADVANCE and can be reached at skurtz@merion.com

Words of Wisdom

J. Scott Stephens, MS, PT, is an established expert witness in the field of physical therapy standards of care. In his experiences in the courtroom over the past decade, he has learned a thing or two about the field of PT. He offers this advice:

Do your history, physical, evaluation and examination before you do your treatment. While it may seem obvious, Stephens said he has seen cases where this fundamental step was overlooked, resulting in an injured patient and a settlement.

Consider what might happen during a treatment and try to take whatever precautions you can against that happening. "Have your documentation paint a picture of what you're doing with the patient and what you're attempting to accomplish with the patient. Treatment should be justified by the goals you're seeking to achieve," Stephens said.

Pay attention to the patient in every way. It's one thing to talk to the patient and take a history, but it's important to know the patient's needs at all levels of treatment and accommodate them. "If you're a 100-pound therapist and you're working with a 270-pound patient, can you really protect that patient in the event that he loses his balance? If the answer is no, you're assuming a risk you might not want to assume," said Stephens.

When it comes to a jury, all bets are off. A PT can do everything from start to finish by the book, but that doesn't always mean a jury will decide in the therapist's favor.

Know what it means to be a "reasonably prudent" PT. Stephens explained the best way to know what a "reasonably prudent" therapist would do is to keep up with the profession. He recommends being active in professional organizations and staying current on the happenings throughout the PT community.

According to Stephens, it is simply a matter of always being aware of the care rendered. "Invariably, if people look at what they're doing, they will find there are ways to do it more carefully. You just want to be comfortable that whatever your treatment procedure or modality is, if something unexpected occurs, you can defend in your mind what you were doing as reasonable," Stephens said.




     

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