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Lowering Liability Risks for PTs

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As the practice of physical therapy moves closer to fulfillment of Vision 2020, the reality that physical therapists will have to face increasing numbers of liability claims and lawsuits becomes evident. Medical malpractice, liability for patient injury, has three distinct types: individual, vicarious and corporate.1 Individual liability relates to the failure of a physical therapist to care for patients in ways that comply with legal standards of care. Vicarious liability is indirect legal and financial responsibility for the conduct of another person, such as an employee or a clinic volunteer. Corporate liability involves institutions such as hospitals and health systems, and negligence in hiring, credentialing, managing and retention of key personnel.

This article is an analysis of the three most recent malpractice suits against physical therapists-with corresponding risk management techniques to reduce future liabilities for the physical therapy clinician.

A Rise in Risk
According to the National Practitioner Data Bank (NPDB) Summary for 2010, there were 1,014 malpractice claims made against PTs over the past 20 years. By comparison, physicians during this same period accrued 260,633 malpractice claims against them. Although there is quite a disparity between PTs and physicians, the trend has shown a steady rise in physical therapy malpractice claims since the early 1990s.

As PTs step out from under the wing of physicians and begin to practice in more autonomous, direct access settings, the processes of screening and differential diagnosis become critically important skills in the "tool box" of every PT practitioner. In addition, consistent utilization of best practice techniques and attention to risk management are critical for the reduction of liability exposure and safeguarding PTs' licenses, assets and reputations. With the greater scope of practice that direct access portends comes increasing professional responsibility. 

Analyzing the Trends
The following is an analysis of trends in physical therapy malpractice liability, followed by a summary of three recent malpractice cases against PTs. In the only thorough analysis of PT malpractice trends, Sandstrom in 2007 reviewed PT malpractice cases from 1991-2004 (n=635). Although there were a wide variety of causes for the claims, 77 percent of the cases involved patient treatment-related situations, most notably "improper technique."

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In terms of payouts, the median payment was between $10 to $15,000 with a range from $10 to $1.2 million. Sandstrom found no additional liabilities based upon a PT's age or experience level or between direct access and physician referral states. Sandstrom's investigation is seminal in dispelling misconceptions regarding liability surrounding direct access and clinical experience of new graduates.

In another study of PT liability claims, CNA/Healthcare Providers Service Organization (HPSO) analyzed 1,464 PT professional liability claims from 1993 to 2006. The average indemnity that was paid out was $39,857, with a range from $31,437 to $235,000. The highest claim paid was $474,000 for the alleged loss of an eye.

The five most frequent claim categories were failure to supervise (233, 15 percent), injury during manipulation (166, 11 percent), improper technique (160, 11 percent), injury by thermotherapy/hot packs (152, 10 percent) and injury during exercise/stretching (102, 7 percent). The location with the highest frequency of claims was a physical therapy office/clinic (1,122, 77 percent). The location with the highest severity of claims was nursing homes, with an average indemnity payout of $76,215 (18, 3 percent).

The trend of PT liability claims as a whole seems to be steadily increasing since 1999, with a steady rise from 45 claims to 120 in 2004. The HPSO claims study is a great tool for any PT to examine potential liability and implement risk management strategies to institute higher standards of practice to decrease the likelihood of accruing malpractice and liability claims.

The Lawsuits
In Coleman v. La Terre Physical Therapy (Louisiana, 2010), Ruby Coleman was referred to La Terre Physical Therapy and was evaluated and treated by a physical therapist following a total knee replacement (TKR). The PT placed Ms. Coleman on a continuous passive motion (CPM) machine to assist her in regaining functional passive knee flexion.

While receiving treatment on the CPM, Ms. Coleman heard a loud "pop" in her left knee and felt excruciating pain. The following day Ms. Coleman visited her doctor and it was discovered that she had a distal femoral fracture that required surgical repair.

Roughly a year later, Mrs. Coleman brought suit for professional negligence. The defendants filed a motion for pre-trial summary judgment, claiming that Ms. Coleman could not prove that the application of a CPM to her post-operative TKR was not a contraindication due to her osteoporosis. The court granted the summary motion in favor of the defendants. Ms. Coleman appealed, but lost.

In Carey v. Indiana Physical Therapy (Indiana, 2010), Mr. Carey was involved in an automobile accident and was referred by his physician for physical therapy at Indiana Physical Therapy. According to Mr. Carey, his PT performed manual therapy "compressions" on his arms that resulted in pain and popping. As in the previous case, the court ruled in favor of the PT-defendant, for a failure of proof of substandard care.

In Cox v. Oasis Physical Therapy (Washington, 2009), Ms. Cox, an employee at Oasis Physical Therapy, became a patient in the same clinic in April of 2004 for neck treatment. She subsequently sued, claiming sexual harassment during employment and treatment.

Initially the courts found that Ms. Cox's claims were time-barred by Washington's three-year statute of limitations. On appeal, however, the court allowed two non-negligence-based claims to go forward, which have not to date been retried. This case highlights the importance of the statute of limitations, or "time clock" for bringing legal actions, for both physical therapist-defendants and patient-plaintiffs, and their attorneys.

PT malpractice exposure is a reality that all practicing physical therapists should be intricately aware of. Every day that a PT practices, he or she faces liability exposure, which may result in a claim or lawsuit brought by a patient, patient's family, or by an employee. Although this reality is stark, fear should not overwhelm the practitioner (in any primary health discipline), as practical steps can be taken to minimize risk.

By understanding the Guide to Physical Therapist Practice and APTA Code of Ethics, engaging in effective quality management activities and involving practice attorneys in risk management, PTs can continue to achieve successful outcomes for themselves and their patients. As with most things in life, planning is crucial-for if you fail to plan, you are planning to fail. 

References

1. Scott, R. (2008). Physical Therapy Management. St. Louis, MO: Mosby.

2. U.S. Department of Health and Human Services, Health Resources and Services Administration. (2010). National Practitioner Data Bank, Summary Report 2010. Retrieved Feb 12, 2011, from The Data Bank: http://www.npdb-hipdb.hrsa.gov/resources/summaryReports.jsp

3. Sandstrom, R. (2007). Malpractice by Physical Therapists: Descriptive Analysis of Reports in the National Practitioner Data Bank Public Use Data File, 1991-2004. Journal of Allied Health, 36, 201-208.

4. CNA HPSO. (2006). Physical Therapy Claims Study. Chicago: CNA Health Pro.

5. Ruby "Nell" Coleman v. La Terre Physical Therapy, Inc. d/b/a Terrebonne Physical Therapy Clinic and Donald P. Kinnard PT, 2009 CA 1666 (Court of Appeal of Louisiana, First Circuit March 26, 2010).

6. J. Boudreaux v. J. Panger, D.C., 85-CA-518 (Court of Appeal of Louisiana, Fifth Circuit January 13, 1986).

7. American Physical Therapy Association. (2003). Guide to Physical Therapist Practice, 2nd Ed. Alexandria, VA.

8. O'Driscoll, S., & Giori, N. (2000). Continuous passive motion (CPM): Theory and principles of clinical application. Journal of Rehabilitation Research & Development, 37(2), 179-188.

9. Scott, R. (2009). Promoting Legal and Ethical Awareness. St. Louis, MO: Mosby.

10. Brent Carey and Stacey Carey v. Indiana Physical Therapy and Stephen Connelly, PT, 02A03-0910-CV-473 (Court of Appeals of Indiana May 28, 2010).

11. Kelly Cox v. Oasis Physical Therapy, PLLC and Lance and Mindi Irvine, and Rafat and Yvonne Shirinzadeh, 27525-6-III (Court of Appeals of Washington, Division 3 November 17, 2009).

12. Nicholson, S. (2006). Guidance in the Courtroom: Use of the Guide to Physical Therapist Practice as a tool in litigation. Retrieved Feb 12, 2011, from www.apta.org: http://www.apta.org/am/template.cfm?section=home&contentid=35848&template=/cm/htmldisplay.cfm

Joshua Trock recently graduated with a DPT from the University of Texas Health Science Center at San Antonio in 2011. He works as a home health physical therapist with Amistad Homecare in San Antonio, TX, focusing on implementing programs for treating and managing chronic lower-extremity lymphedema in the home. Ron Scott is an assistant professor in the PT department at UT Health Science Center at San Antonio. He is an attorney-mediator and consultant in private practice.


 

Yeah, at 53 years of age, I was sent to a "Work Hardening" Program @ Physical Therapy. Because of complete indifference and conscious disregard for my health and safety, and after climbing 340 floors in 140 minutes on a Stairmaster PT4000 at the instructions of my "Therapist" who hollered, "STAY ON TOP", and cycling each shoulder about 5600 times, with weights from 25-75 lbs, I required bilateral knee surgery (partial lateral release) and bilateral shoulder surgery which included 2 torn rotator cuffs.

Dean FoutesFebruary 19, 2014



Yes this has become common, Recently a patient sued for not having been given proper instruction during heat treament thus resulting into a burn.

Jessica Shiraku,  chief physiotherapist,  HospitalApril 19, 2012
Nairobi




     

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