Professional Liability Exposures for Physical Therapy - A Contemporary View

I'm happy to be with you today to present this risk information for physical therapists. HPSO and CNA, the underwriter for the HPSO program, firmly believe that knowledge is the key to enhancing patient safety and minimizing risk. Our goal is to help physical therapists enhance the quality of their care by not only making them aware of the liability risks they face in their daily practice but also providing risk management information to help mitigate those risks.

Today, we will talk about what is malpractice, what is disciplinary action; we'll discuss metrics on top areas PTs are sued for liability, and top areas for disciplinary actions; and we'll also include real case scenarios. And to make it interactive, we'll get your answers on whether you thought negligence occurred by having you answer some polls. Lastly, we'll offer some risk control recommendations that PTs can incorporate into their practice, so you'll have a few resources to help you with that as well. Hopefully, by the end of the presentation, you'll have a better understanding of the risks and challenges PTs face.

Malpractice

Definition

What is malpractice? Malpractice is a type of negligence. It's the failure to provide the degree of care required of a professional, such as a physical therapist, under the standards and scope of your license, resulting in harm. PTs can be sued for malpractice.

Elements

For malpractice lawsuits, four elements must be met in order to prove negligence: Duty, breach, cause, and harm. Duty is your responsibility as a PT to your patient, as defined by your state's scope and standards of care. Breach is that deviation from that standard of care. Cause is the direct correlation that that breach played in causing patient harm and Harm is the actual injury to the patient. In malpractice lawsuits, patients estimate and seek monetary damages to "make them whole" for the injury caused by your professional actions or failure to act to bring them back to their pre-injury status.

Patient’s Definition

In many cases, patients don't know about duty, breach, cause, and harm.  Their definition is more of the perception of wrongdoing. If a patient feels that your actions caused their harm, that patient can sue. If they ask questions of the care you provided and are not satisfied with the level of communication and/or disclosure of events, they may initiate a lawsuit to seek answers. It does not mean that a PT was negligent in care, or that they failed to connect with their patients, but just that the patient may levy allegations and let the courts decide.

Who Can Allege Malpractice?

So who can allege malpractice? Well, it can be the injured part or it can be their legal counsel.  It can also be parents or guardians of an estate in the case of a minor patient or it could be the estate of a patient in the case of a deceased patient.

What to Expect

If you are sued for malpractice, you may receive a summons or complaint letter, or legal paperwork of some kind. However, sometimes you may see paperwork delivered after a heated discussion where a patient threatened to sue. In all of these legal requests, there may be a demand for services or money stemming from the act or omission in the rendering of care which led to the injury; and so patients will seek damages.

Types of Damages

There are two types of damages: economic damages and non-economical damages.  Economical damages are more of the tangible expenses, like a medical expense after a fracture or a burn, the loss of income (if the patient was out of work) due to an injury or funeral expenses (if the resulting injury was death). Non-economic damages are the intangible monetary damages that patients will put a monetary amount on. These include mental anguish, pain, and suffering, or loss of consortium (loss of happiness of life).

For example, a woman who was an avid skier came to physical therapy for treatment after a fall. The PT's treatment was deemed too aggressive, and the woman ended up re-injuring her leg, which in fact was the same leg she was originally seeking treatment for. This re-injury ended the woman's skiing career and she sought damages for loss of happiness of life. As you see, skiing was her passion, and she was no longer able to participate in this activity after her treatment.

Regulatory Board Complaint

If someone were to bring a complaint against you to your state licensing or regulatory board, you would want to defend your actions against the board. All complaints against the licensing board must be investigated. They can have dire consequences. As you know, the board is there to protect the public, and therefore, we may see cases with everything from allegations related to treatment and care to professional conduct.  Professional conduct may include DUI charges, for example.  If the board deems that you did not act as a professional, they could take action.  That action could be anything ranging from a warning to continuing education courses to license suspension or revocation. One of the biggest differences from a malpractice case is that anyone can file a complaint against with the board. It could be a friend, a neighbor, a colleague, or even your employer.

Key Terms

There are a few key terms that will be referenced throughout the presentation.

Indemnity Payments

Indemnity payments are the monies paid on behalf of the physical therapist in the settlement or judgment of a claim. This may be money paid on behalf of the PTA or PT practice in this case as well.

Expense Payments

Expense payments are monies paid in the investigation, management, or defense of a claim. It might include expert witness fees, court costs, etc. You will see these terms represented in the charts today.

Defendant

The defendant is the party against whom the claim is being brought. In the cases discussed it will be the PT, the PTA, or the private practice.

Plaintiff

The plaintiff is the party who brings the suit in court. Plaintiff is the injured party or the representative of that injured party.

PT Claim Report

The findings from the 2016 Physical Therapy Claim Report is the third report published by HPSO and CNA. The report focuses on claims in three areas.  The first area is professional liability claims. This is a quantitative analysis taken directly from the CNA claim database, and represents physical therapists, PTAs, and PT private practices that are insured under the HPSO-CNA program. Since the program insures upwards of 70,000 individual PT professionals and over 10,000 PT practices nationwide, the data is considered reliable and statistically significant. Part two focuses on complaints and allegations made against a PT, PTA, or an employee of a private practice to their state license or regulatory board.  The third area focuses on questions we ask physical therapists via a qualitative work profile survey. These questions focused on workplace and demographic factors we couldn't consistently get to in the claim file themselves. For example, "How many years had the PT been in practice "at the time of the incident?"

Inclusion Material

We are going to focus on Part One (professional liability) and Part Two (board claims) in the report. The claims analyzed in the report were driven by inclusion criteria. The claims represent a five-year view of closed claims, meaning that we had an outcome. The claim might have been initiated a few years back, but closed between January 1st, 2010 and December 31st, 2014.  We also looked at claims that were above the $10,000 indemnity payment mark. We focused on these claims because claims above $10,000 offer more detailed insight into the actions, treatment, and care of the PT, PTA, or practice which led to the patient injury. It highlights where those deviations from the standard of care may have occurred. So in applying these criteria, the resulting pool of claims were 443 closed professional liability claims for in-depth analysis. Additionally, where we could, we also compared the previous PT reports data set to this current data set to draw comparisons and identify any potential trends. The previous data set was 477 closed professional liability claims, so the two data sets are very similar in size, and so we can draw those comparisons.

Case Study

A 77-year-old man with a history of Parkinson's, osteoporosis, and a recent CVA, stroke received physical therapy at a physical therapist's PT practice. He suffered from significant postural deficits, creating a severe forward bent posture. Due to right-sided weakness caused by the CVA, he was using a cane for mobility assistance. Prior to his stroke, the patient was living at home alone with minimal assistance. The patient had been seen on and off at our physical therapist's office for several years, so after his CVA, he began therapy again due to his inability to get out of bed and his frequent falls. The patient had a referral to attend therapy three times a week for eight weeks to provide transfer, balance, and flexibility training intended to improve his range of motion. Toward the end of the eight weeks, the patient was allowed to perform his exercises under the supervision of a PTA. While standing using exercise bands, he performed scapula retraction exercises and balancing on his own. After a few minutes of performing this exercise, he lost his balance and began to fall. The PTA, who was across the gym assisting another patient, rushed over to keep the patient from falling. The patient landed on his buttocks on top of the PTA's feet.  When the PTA assisted the patient back to the standing position, he immediately complained of right hip pain. The PTA encouraged the patient to be evaluated by a practitioner, so an ambulance was called to transport the patient to the local emergency department. While in the emergency department, the patient was diagnosed with a fracture, which was surgically repaired. He was hospitalized for six weeks, and after discharge was sent to a long-term care facility for rehabilitation. When the patient was able to return home, he required a full-time home health aide to assist with activities of daily living.

Thoughts?

How are we feeling about this case? When we discuss negligence occurring, think about you as a professional. Would you have acted in a similar manner, given a similar situation?  The patient has been unable to walk since the accident, and now requires a wheelchair or one-on-one assistance while ambulating.

Allegations

The patient has brought a lawsuit against our physical therapist and the PT practice alleging failure to monitor the patient and failure to supervise the PTA. Now you'll see here that it was the PTA who was delivering the care, but the patient sued our physical therapist, again, as the physical therapist was responsible, vicariously responsible, for the actions of the PTA. So, a few questions to think about: 

1) Did you believe the PT was negligent?

2) Do you think any of the other practitioners were negligent, like the PTA or the practice itself?

3) Did you believe that any indemnity payment or expense payment was made on behalf of the PT? Remember that indemnity payment is the payment made to the injured third party in the result of an injury. And if yes, how much?

Expert Opinion

During the initial review, our PT recalled that the patient had performed these exercises hundreds of times before without incident and without assistance, and knew how to properly perform them. Although the PT was not on site at the time of the patient's fall, he believed that one-on-one supervision of the patient was not necessary. Several of the defense experts were asked to review the claim and offer an opinion. Most were supportive of the original plan of care, but a little concerned that the patient with posture and balance issues was allowed to exercise without supervision throughout the course of his physical therapy. The experts agreed that the PT did not have to be in the gym, or in the therapy session directly to supervise the PT, but needed to be on site. So we estimated the possibility of a successful defense verdict was less than 20%, and that the value of a potential claim in this case was between $225,000 and $350,000.

Resolution

In the end, the injured third party received just over $185,000, and we spent an additional $40,000 in the defense and management of the claim by the expert witness fees and the like to defend this physical therapist. Remember, these figures only represent the payment made on behalf of the physical therapist. If there was a payment made on behalf of the PTA, it is not known. We do know that the PTA was called in as a co-defendant.

Risk Control Recommendations for the Treating PT

1. Provide clinical support and supervision for PTAs, aides, and students in compliance with standards of practice for physical therapy
2. Delegate therapy services only to appropriate level of staff and to provide appropriate supervision for all delegated patient services.
3. Recognize patients' medical conditions, comorbidities and any additional risk factors that may affect therapy.
4. Utilize appropriate safety devices. In this case, the patient was not wearing a gait belt, and so utilizing such a safety device may have mitigated some of the injuries here.
5. Never leaving the therapy area when a patient is receiving services from another level of staff. 
6. Observe high-risk patients closely to prevent falls and never leaving them unattended.

Risk Control Recommendation for PT Practice Owners

We also have risk control recommendations here for the PT practice owner.

1. Knowing the current scope and practice parameters for a physical therapist, a physical therapist assistant, physical therapy aides, and physical therapy students. 
2. Ensure that clinical practices comply with standards that are endorsed by professional associations, state practice acts, and facility protocols.  Remembering that if the organization differs in some way from the practice act or association standards, use the most stringent.
3.  Be knowledgeable of the levels of supervisory responsibility of a PT. Know when it's acceptable for a PT to have general, direct or direct personal supervision of physical therapist assistants, aides, and students.