Arizona associate degree physical therapy

PT presents recent malpractice case reports and commentary on their outcomes and impact.

This column summarizes three recently reported physical therapy malpractice legal cases. The cases address the management of patients and clients who are receiving care as a result of a workers' compensation claim and the processing of litigation documents by physical therapist-- defendants in health care malpractice lawsuits. Legal terms are highlighted in italics and defined or described in tay terms in parentheses.

By way of brief review, the legitimate legal bases for imposition of health care/physical therapy malpractice liability include:

professional negligence (objectively substandard care),

intentional wrongful conduct (eg, sexual battery committed upon a patient or client),

breach of an express contractual therapeutic promise made to a patient or client, and

absolute or strict liability (without regard for culpability) for patient injuries emanating from dangerously defective care-related products (strict product liability) or abnormally dangerous clinical intervention activities.

To date, there have been approximately 30 physical therapy malpractice civil cases reported in the legal literature since 1960.1,2 One reported physical therapy-related civil case dealt, not with alleged PT malpractice, but with legal discovery (the turning over of information to a party in a legal case) of a PT-initiated incident report by a product manufacturer in a case brought against the manufacturer by a patient under the therapist's care.3

In virtually every reported physical therapy malpractice case, the charges lodged against PTs by patients were grounded exclusively in alleged professional negligence, to the exclusion of all other potential bases of liability Appellate courts ruled in patients' favor in half of these cases, either by affirming trial court judgments or by remanding cases to trial courts for further proceedings. No one knows the precise number of physical therapy malpractice legal cases, because the vast majority are settled, not appealed, or abandoned by plaintiff/patients prior to trial. Thus, the information is not disseminated to the general public.

The following section briefly summarizes three of the most recently reported physical therapy malpractice appellate cases and offers commentary on suggested clinical risk-management strategies and tactics to limit malpractice exposure based on the case holdings.

Moretto v Samaritan Health Systems. In this case,4 a patient who had knee surgery after an industrial injury fell from a wheeled stool while undergoing physical therapy. The patient's PT allegedly directed him to sit on the stool while the therapist applied a knee brace and shoe to his involved leg. As a result of the fall, the patient sustained a lumbar disk herniation. He filed suit, claiming professional negligence on the part of the PT.

The attorney for the hospital where the PT worked won dismissal of the case at the pretrial stage of adjudication, successfully arguing that the patient failed to obtain assignment (ownership) of his potential claim against the therapist and hospital from his employer's workers' compensation insurance carrier, which was required because the back injury was part of a compensable workers' compensation claim (ie, the knee injury). The attorney also argued that the patient had failed to file his lawsuit in a timely manner under the state's statute of limitations (time frame for filing a formal lawsuit). The patient appealed.

The appellate court reversed the award of summary judgment in favor of the PT and hospital, concluding that a shortened statute of limitations for secondary injuries related to industrial injuries that are the subject of workers' compensation claims did not apply to this case. The shorter time clock was inapplicable, the court ruled, because the back injury did not aggravate the work-related knee injury, and the patient did not need to obtain permission from his employer to sue the PT and hospital for their independent alleged health care malpractice. The case was remanded (sent back) to the trial court for further proceedings.

This case raises the following practice issues: the nature of workers' compensation claims and attendant risks of liability exposure associated with caring for such clients; health care malpractice legal procedures, especially concerning summary judgment; and the statute of limitations for initiating legal action against a PT for alleged malpractice.

Greenberg v Orthosport Inc. In this case,5 a patient who sustained a lumbar spine injury at work was undergoing a functional capacity evaluation for possible return to work.The patient claimed that she sustained a neck injury from the test and sued her PT for malpractice. The trial-level court awarded pre-trial summary judgment in favor of the PT on the grounds that the state workers' compensation system provided the exclusive remedy for patient's alleged evaluation-related neck injury.

The patient appealed the adverse decision against her. The appellate court reversed, opining that summary judgment is a drastic measure depriving a plaintiff of her right to redress at trial. The appeals court ruled that, because the alleged physical therapy malpractice was non-work-related, it could be pursued judicially by the plaintiff outside of the workers' compensation system.

Like the first case, this case raises concern about the management of a patient receiving care as a result of a workers' compensation claim or other litigation. Because the patient is involved in pursuing a claim, the PT has to be especially diligent with documentation. Oral statements made by such patients to professional and support personnel that typically would not be recorded should be documented in the patient's file.

Hebebrand v Arrien In this case,6 which involved an unspecified health care malpractice action brought by a patient against multiple primary care providers, including a PT, the patient asked the trial court to strike (remove from the case) the defenses pleaded by the PT for the alleged failure of the defendants to respond to the plaintiff's notice of intent to initiate litigation, a response required by the state's medical malpractice statute-The appellate court refused to strike the defendants' defenses to the plaintiffs case, as requested. However, the court did underscore the trial court's authority to strike the PT's response in the case and determined that the PT failed to comply with the requirement to conduct a "reasonable investigation" (prior to litigation) of the patient's claim.

This case illustrates the need to apprise attorneys immediately of possible legal claims, and to be responsive to legal documents, as required by law. Whenever a PT receives any legal document, he or she must carefully review it and consult with legal counsel to proceed. One cannot merely ignore legal papers.

Discussion

Although the number of reported and nonreported physical therapy malpractice cases remains relatively small compared to medical malpractice cases involving physicians and to civil litigation cases in general, it is still imperative for PTs'-and patients'-physical, mental, and financial well-being that prudent clinical risk management be practiced to limit malpractice exposure to the degree feasible. Effective risk-management skills must be introduced during entry-level health professional education and reinforced throughout clinicians' professional careers via continuing legal education or other appropriate means.

These recent physical therapy malpractice cases reinforce the need for PTs, physical therapist assistants, clinical managers, and facility administrators to keep abreast of case law reports and changes in the legal status quo. In particular, it may be prudent for clinicians to maintain relatively formal professional relationships with patients and clients receiving care as a result of a claim or litigation, particularly workers' compensation cases.This includes the risk-management measure of always creating and maintaining accurate, comprehensive, objective, and timely documentation. Records should include both patient intervention documentation and non-care-related office memoranda or memoranda for record, as appropriate, to record declarations against (self) interest (ie, statements that adversely affect a patient's legal, business, or other interests) made by patients or clients regarding their conditions. Similarly, physical therapist-malpractice defendants must respond appropriately; and in a timely manner, to legal process (eg, summons or complaint) initiated by patients and others against them.

Through effective liability risk management, the interests of providers, health care organizations and systems, and patients and clients are best served, as is the compelling societal interest in minimizing health care malpractice litigation, with all of its attendant costs.