heathcare providers service organization risk advisor for ......the course of a patient’s...

HPSO Risk Advisor 2014

Heathcare Providers Service Organization

Risk Advisor for Physical Therapists

HPS

O R

isk

Adv

isor

Keep referring practitioners informed to protect against legal action

A surgeon refers a 55-year-old man for physical therapy following a hip arthroplasty The man only showed up for therapy intermittently and did his ex-ercises poorly but the physical therapist (PT) failed to notify the surgeon Subsequently the man re-turned to his surgeon with complaints of pain and it was discovered the patient had dislocated his hip Unfortunately the PT ended up being named in a successful lawsuit because he did not keep the surgeon informed of the patientrsquos progress

The referring practitionerrsquos role in the care of the patient doesnrsquot end with the referral to the PT The PT is responsible not only for following the practitionerrsquos instructions but also for keeping the practitioner informed of changes in the patientrsquos condition Failure to do so could leave a PT vul-nerable to litigation

The cost of failed managementAllegations related to improper management over the course of a patientrsquos treatment can result in high payments according to Physical Therapy Liability 2001-2010 a claim report from CNA HealthPro and HPSO The average paid indem-nity of $119618 for closed claims was 50 per-cent higher than the average paid indemnity of $79471 for all PT closed claims in all the catego-ries examined

Failure to report changes in the patientrsquos condi-tion to the referring practitioner represented the highest average paid indemnity ($279425) and failure to cease treatment when the patient experi-enced excessive or unexpected pain represented the highest total paid indemnity ($2649500) Alle-gations in the areas of improper management over the course of treatment comprised 113 percent of

total closed claims Most claims (296) stemmed from failure to cease treatment with excessive or unexpected pain followed by failure to follow the referring practitionerrsquos orders (204) improper management of the surgical patient (167) and failure to complete a proper patient assessment (148) Other allegations included failure to report a patientrsquos condition to the referring practitioner injury during training for assistive devices or equip-ment and failure to refer or seek consultation

Here are strategies you can use to ensure you manage patients appropriately and collaborate effectively with referring practitioners

Follow the rulesFollowing standards guidelines laws and regula-tions will help ensure patients receive the best possible care and help you avoid legal action Itrsquos standard practice for the PT to keep the referring practitioner informed of the patientrsquos progress and condition This expectation is noted in the Code of Ethics for the Physical Therapists from the American Physical Therapy Association (APTA) For example principle 3C states that PTs ldquohellipshall communicate with collaborate with or refer to peers or other healthcare professionals when necessaryrdquo APTA standards of practice reflect the need to keep referring practitioners informed in the section on communication coordination and documentation Finally the APTA position on referral relationships states ldquoWhen admission to a physical therapy service has been originated via a referral this relationship places a shared responsibility (emphasis added) on the referring source and on the physical therapist to exchange all necessary informationrdquo Communication with

nsonurses service organization


appropriate healthcare professionals is important whether patients are referred to physical therapy or are seen via direct access

Record your actionsThe most important source your defense attorney has to validate what you did is the patientrsquos health record Although finding time to document is a challenge for busy PTs itrsquos an essential step to defend yourself successfully should you be named in a lawsuit

Here are specific items related to managing a pa-tient over the course of treatment that you should be sure to document your conversations with referring practitioners

about changes in the patient status and outcomes from the discussions

clarifications about the treatment order the details of any adverse events including patient

signs and symptoms who was notified and action taken (you should also complete an incident report but do not place it in the patientrsquos health record)

assessment findings and notification of the refer-ring practitioner as needed

the fact that if you did not reach the referring practitioner you followed the chain of command to inform an appropriate practitioner

referrals to other practitioners or therapists as warranted

Of course you should also follow basic documen-tation principles such as dating timing and signing each entry and following the organizationrsquos policy if you have to make a correction

In the loopManaging the patient appropriately and keeping the referring practitioner informed of changes facilitate optimal care for patients An APTA position state-ment notes that characteristics of autonomous PT practice include the ldquoability to refer to and collabo-rate with healthcare providers and othersrdquo and rec-ognizing when the PT needs to request consultation Using good professional judgment in your practice can help you avoid litigation

RESOURCES

American Physical Therapy Association Autonomous physical therapist practice httpwwwaptaorguploadedFilesAPTAorgAbout_UsPoliciesPracticeAutonomousPTPracticeDefinitionsPrivilegespdf

American Physical Therapy Association Code of ethics for the physical therapist httpwwwaptaorguploadedFilesAPTAorgAbout_USPoliciesHODEthicsCodeofethicspdf

American Physical Therapy Association Referral relationships httpwwwaptaorguploadedFilesAPTAorgAbout_UsPoliciesReferralReferralRelationshipspdfsearch=rdquoreferrdquo

CNA HealthPro HPSO Physical therapy liability 2001-2010 httpwwwhpsocomresourcesclaim-studiesjsp

Texas Occupations Code Title 3 Health professions Subtitle H Professions related to certain types of therapy Chapter 453 Physical therapists Subchapter A General provisions nd httpwwwstatuteslegisstatetxusDocsOChtmOC453htm

Wisconsin Subchapter III Physical therapy examining board 44856 Practice requirements httpsdocslegiswisconsingovdocumentstatutes44857(2)(f)

Tips for patient managementFollow these tips to ensure you keep referring practitioners informed Contact the referring practitioner if you have

any questions or need clarification regarding - the patientrsquos medical or postsurgical status - the requested treatment - signs and symptoms Notify the practitioner of any findings from your

examination that concern you Stop treatment immediately if the patient has

an adverse event and notify the referring practitioner

Report lack of expected improvement or nega-tive changes in status to the referring practitio-ner If necessary refer the patient back to the practitioner or to a practitioner with the appro-priate expertise

Follow up with the practitioner if you fail to re-ceive a response to your concerns If you still do not receive a response follow the chain of command to notify the appropriate person

Send a copy of the plan of care and discharge summary to the referring practitioner

In the patientrsquos health record document noti-fications and conversations with the referring practitioner


As a physical therapist (PT) you have to make many decisions on therapeutic interventions every day You also have to face the need to practice effective-ly in the face of limited resources Basing your ac-tions on the latest evidence is essential to ensuring optimal patient outcomes while protecting yourself from litigation should an untoward event occur

Evidence-based practice (EBP) is a problem-solving approach that encompasses research clinical exper-tise and patient values and circumstances Physical therapists should use information from these three components to make informed decisions

Advantages of EBP include the ability to obtain an accurate assessment of the risks and benefits of various therapeutic approaches Evidence-based practice also facilitates decision-making in situations where there are limited resources (for instance the patient with no or little insurance) and in supporting your recommendations to other clinicians Integrat-ing EBP with your practice will improve the quality of your decisions and reduce your risk for legal action

The gold standardEvidence-based practice is accepted as the gold standard because it improves patient outcomes For example the 2003 Institute of Medicine (IOM) report Health Professionals Education A Bridge to Qual-ity states EBP is a core competency for healthcare professionals

Additional support comes from a professional as-sociation such as the American Physical Therapy Association (APTA) An APTA position statement says the organization ldquohellipsupports and promotes the

development and utilization of evidence-based prac-tice that includes the integration of best available research clinical expertise and patient values and circumstances related to patientclient management practice management and health policy decision makingrdquo The organizationrsquos Vision Statement for the Physical Therapy Profession integrates EBP in several of its guiding principles For example the quality principle includes the following ldquohellipgener-ate validate and disseminate evidence and quality indicatorshelliprdquo

All this adds up to a consensus that EBP is a vital part of the profession In a court case an attorney will stress this fact while attempting to prove that you failed to engage in EBP Thatrsquos why your practice must be based on evidence even though doing so can be challenging

Barriers to EBPA 2003 survey of PTs found that most respondents agreed or strongly agreed that EBP is necessary improves the quality of patient care and helps in decision-making but they also identified time as the primary barrier According to APTA a more recent survey found that time is the greatest barrier to using research in practice And a study in 2013 found that although PTs support EBP many feel they lack the needed time knowledge and skills to engage in it

Like other healthcare professionals PTs also face barriers such as lack of mentors to help learn the EBP process and resistance from colleagues and managers Fortunately you can take steps to remove these barriers

Evidence-based practice protects against litigation


Overcoming the time barrierMany resources are available to break this barrier particularly when it comes to collecting and evalu-ating the evidence You can save a lot of time by letting others do the work for you through clinical practice guidelines and systematic reviews The first step is to check to see if there are current clini-cal practice guidelines on the topic then look for systematic reviews Herersquos where you can find these time-saving resources Cochrane Database of Systematic Reviews (www

cochraneorg) which provides analysis of avail-able literature related to a topic (some information available for free)

National Guideline Clearinghouse (wwwguidelinegov) which provides summaries of clinical prac-tice guidelines and has a tool that allows you to compare multiple guidelines (free access)

PubMed which has a feature that allows you to limit your search to systematic reviews or meta-analysis articles (free access)

Trip (wwwtripdatabasecom) a clinical search engine where you can quickly find high-quality research evidence (free access)

Joanna Briggs Institute (joannabriggsorg) which provides evidence reviews (some information available for free)

General physical therapy journals and journals related to your specialty area of practice (requires subscription)

Tools to help in critically appraising the evidence including those from the Centre for Evidence Based Medicine (wwwcebmnet) and the University of Minnesota (httphsllibumnedubiomedhelplevels-evidence-and-grades-recommendations) You might also want to review CONSORT (Consoli-dated Standards of Reporting Trials) an evidence-based tool to help assess the quality of the reports of trials and PRISMA (Preferred Reporting Items for Systematic Reviews and Meta-Analyses)

Download useful apps and databases on your smartphone or tablet so you can access them more easily Consider joining APTA to gain access to members-only evidence-based practice resources such as PTNow (wwwptnoworg) APTArsquos evidence based portal that includes evidence-based clinical summaries access to evidence-based tests and measures links to close to 400 relevant clinical

practice guidelines and access to full text articles from many scientific journals The time you save will be worth the cost

An often overlooked but highly valuable resource is the medical librarian A medical librarian at your facility local university or health center can guide you through the process of conducting a literature search so itrsquos more efficient

Overcoming resistanceOvercoming resistance can be challenging You can start by serving as a role model for others Take the lead in suggesting practices that could benefit from a re-examination

If you are also a manager you might want to con-sider building EPB projects into physical therapistsrsquo job descriptions and evaluations Another option is to partner with a faculty member at a local university

Overcoming a lack of knowledgeYou donrsquot need a large budget to gain knowl-edge about EBP You can access free self-study programs online For example staff at Duke Uni-versity Medical Center Library and the Health Sciences Library at the University of North Caro-

Steps of evidence-based practiceHere are the basic steps of EBP 1 Cultivate a spirit of inquiry2 Ask the clinical question in PICOT (Patient

population Intervention or Issue of interest Comparison intervention or group Outcome and Time frame) format

3 Search for and collect the most relevant best evidence This includes searching for system-atic reviews and meta-analyses

4 Critically appraise the evidence for its validity reliability and applicability

5 Integrate the best evidence with onersquos clinical expertise and patient preferences and values in making a practice decision or change

6 Evaluate outcomes of the practice decision or change based on evidence

7 Disseminate the outcomes of the EBP deci-sion or changeSource Melnyk BM Fienout-Overholdt E Evidence-Based Practice in Nursing amp Healthcare A Guide to Best Practice 2nd ed Philadelphia Lippincott Williams amp Wilkins 2010


lina at Chapel Hill developed an ldquoIntroduction to Evidence-Based Practicerdquo tutorial available on-line at httpguidesmclibrarydukeeducontentphppid=431451ampsid=3529491

For tips on interpreting the information you find access the ldquoHow to read a paperrdquo section of the BMJ website which contains article on how to read and interpret different types of studies and includes two articles related to statistics (wwwbmjcomabout-bmjresources-readerspublicationshow-read-paper)

Another resource is the World Confederation for Physical Therapy which provides links to helpful education information related to EBP (wwwwcptorgnode29661) One of the listed resources is the PEDro tutorial which uses some physiotherapy examples

If your organization provides educational reim-bursement consider attending a workshop on EBP Retain documentation of courses you complete so you can show evidence of your efforts should you be involved in a lawsuit The evidence will also be help-ful for career advancement

Keeping upStaying on top of developments in your field helps en-sure you are aware of the latest research You can use technology to make the process easier For example services such as Feedly (wwwfeedlycom) let you customize feeds of news stories related to your interest areas You can easily scan the headlines and short de-scriptions to determine if you want to learn more You can also sign up for news feeds from APTA

Other options you might want to try Sign up to receive electronic tables of content from

journals you are interested in You can scan the

table of contents to determine whatrsquos of interest Subscribe to electronic newsletters such as those

provided by Medscape and JournalWatch Listen to podcasts as you exercise or drive to work Download an app such as Mendeley (www

mendeleycom) that lets you capture articles as PDFs and organize them according to keywords and other parameters

Taking just these few steps can ensure that you are current in your knowledge

Practicing effectivelyBasing your practice on evidence will benefit pa-tients by ensuring optimal outcomes and will benefit you by providing support for your decisions should you find yourself in the uncomfortable position of be-ing named in a legal action

RESOURCES

American Physical Therapy Association Evidence-based practice 2012 httpwwwaptaorgevidenceresearch

American Physical Therapy Association Vision Statement for the Physical Therapy Profession httpwwwaptaorgVision

Institute of Medicine Health Professions Education A Bridge to Quality April 18 2003 httpwwwiomedureports2003health-professions-education-a-bridge-to-qualityaspx

Jette DU Bacon K Batty C Carlson M Ferland A Hemingway RD Hill JC Ogilvie L Volk D Evidence-based practice Beliefs attitudes knowledge and behaviors of physical therapists Phys Ther 200385(9)786-805

Melnyk BM Fienout-Overholdt E Evidence-Based Practice in Nursing amp Healthcare A Guide to Best Practice 2nd ed Philadelphia Lippincott Williams amp Wilkins 2010

Saver C Keeping practice knowledge current Part 1 Nurse Pract 201237(12)1-5

Weng Y-H Kuo KN Yang C-Y Lo H-L Chen C Chiu Y-W Implementation of evidence-based practice across medical nursing pharmacological and allied healthcare professionals a questionnaire survey in nationwide hospital settings Implement Sci 20138 httpwwwimplementationsciencecomcontent81112

Resistance exercises and stretching are common interventions used by physical therapists (PTs) that have tremendous potential for enhancing patientsrsquo lives Because resistance exercises and stretching are basic treatments however itrsquos easy to forget that patient injury can occur Unfortunately that injury could put a PT at risk for a lawsuit

By understanding possible consequences and taking a few simple steps you can protect your

patient from harm and protect yourself from litigation

Possible negative consequencesImproper prescription instruction progression and modification as well as resistance or stretching exercises can have serious consequences both clinically and financially A claim report from CNA HealthPro and HPSO Physical Therapy Liability

Keeping resistance exercises safe


2001-2010 which analyzed claims with an indem-nity payment of $10000 or more against PTs found that ldquoimproper performance of therapeutic exer-ciserdquo accounted for the highest total paid indemnity ($10600774) for all categories of allegations It also accounted for the most closed claims (265) Im-proper technique accounted for more than one-third (354) of closed claims for improper performance of therapeutic exercise followed by injury during resistance exercise or stretching (173) and injury during active resistance or assistive range-of-motion exercises (15)

Resistance exercises and stretching also played a role in injury Injury during resistance exercise or stretching ($357251 total paid indemnity) and injury during active resistance or assistive range of motion exercise ($413412 total paid indemnity) accounted for 94 and 75 respectively of closed claims the third and fourth highest in the reinjury category Be sure you take precautions so you donrsquot have a claim that ends up as one of these statistics

Patient evaluationBefore beginning resistance exercises evaluate patients for comorbidities and other factors that may affect their ability to exercise Examples include de-conditioning after extended hospitalization or recent surgery cardiac conditions side effects of medica-tions such as impaired balance pulmonary disease and osteoporosis And of course be sure that any ex-ercise equipment the patient is going to use such as bikes or resistance bands are in good working order

Effective patient educationGive patients clear specific instructions about exercises that they are to perform at home Have the patient demonstrate the exercise and provide written instructions and illustrations that patients can refer to later Be sure to provide specific details about frequency intensity repetitions and duration of exercises

Tell patients what kind of clothing and footwear is appropriate and when they should cease the exer-cise (for example when their pain reaches a cer-tain level) and when they should seek help from a practitioner Emphasize that exercises must be done correctly to avoid injury Document the patientrsquos un-derstanding of the information in the health record

Keep in mind that communication is perhaps the most effective tool for establishing a partnership with the patient Strong partnerships including participa-tion in setting goals make it more likely that patients will follow instructions

Direction and supervisionIf you delegate resistance exercises or stretching to a physical therapist assistant (PTA) follow general direction and supervision guidelines (See Delegat-ing properly) Remember that you have primary responsibility for the patient Interestingly the Physi-cal Therapy Liability claim study found that like PTs PTAs have experienced allegations related to these tasks Injury during resistance exercise or training accounted for 41 of PTA closed claims with a to-tal paid indemnity of $45000 Injury during passive range of motion accounted for 102 of claims with a total paid indemnity of $30000

Be sure to provide appropriate direction and su-pervision to anyone involved in providing care and document this supervision in the patientrsquos health record including instructions given and your own evaluations Physical therapist assistants should also document the care that they provide in accor-dance with your statersquos practice act Itrsquos also a good idea to routinely assess the PTArsquos knowledge skills and abilities to ensure that he or she knows when to stop treatment and consult a PT should unantici-pated pain or other adverse events occur

Delegating properlyConsider the following when directing a PTA to provide specific interventions under your super-vision Ensure that assigned interventions are within

the PTArsquos scope of work and that he or she is competent to perform them

Establish a process for ongoing communica-tion about the patientrsquos progress and response to treatment

Follow your organizationrsquos policies and proce-dures related to delegation

Understand that as the PT you have primary responsibility for the patient

Monitor the patientrsquos response to therapy including assessing progress and outcomes


Paying attention to the basicsBy focusing on the basics of proper patient evalua-tion and education along with appropriate delega-tion you can reduce the likelihood that you will be named in a lawsuit related to improper resistance exercises or stretching and help your patient gain maximum benefit from therapy

RESOURCES

CNA HealthPro HPSO Physical Therapy Liability 2001-2010 httpwwwhpsocomresourcesclaim-studiesjsp

Kietrys D Galantino ML Can progressive resistive exercise improve weight limb girth and strength of individuals with HIV Phys Ther 201494(3)

HPSO Risk Advisor 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 Risk Advisor nor CNA assumes any liability for how this information is applied in practice or for the accuracy of this information The professional liability insurance policy is underwritten by American Casualty Company of Reading Pennsylvania a CNA company Coverages rates and limits may differ or may not be available in all States All products and services are subject to change without notice This material is for illustrative purposes only and is not a contract It is intended to provide a general overview of the products and services offered Only the policy can provide the actual terms coverages amounts conditions and exclusions CNA is a service mark and trade name registered with the USPatent and Trademark Office Healthcare Providers Service Organization is a division of Affinity Insurance Services Inc in CA (License 0795465) MN and OK AIS Affinity Insurance Agency Inc and in NY AIS Affinity Insurance Agency HPSO Risk Advisor is published by Affinity Insurance Services Inc with headquarters at 159 East County Line Road Hatboro PA 19040-1218 Phone (215) 773-4600 copy2014 Affinity Insurance Services Inc All world rights reserved Reproduction without permission is prohibited


PTs PTAs and Medical Malpractice

Presented by HPSO and CNA

Settlement mid-six-figure range Legal Expenses low four-figure range

The patient (plaintiff) was a 68-year old chronically ill femalewith a history of diabetes severe ankylosing spondylitisneuropathy myopathy chronic obstructive pulmonary diseaseobesity and falls The physical therapist and the defendantphysical therapist assistant (PTA) were employed by a homehealth agency and were providing home based physical therapycare to the patient following a recent hospitalization

The physical therapist evaluated the patient and her residenceand initiated the prescribed home based physical therapytreatment which included wall slide exercises The defendantphysical therapist assistant found the walls to be uneven andchanged the wall slide exercise location to the hallwaybathroom door On one occasion the patientrsquos daughterrequested that wall slides against the door be removed from hermotherrsquos therapy regimen because of her physical instabilityDespite that request on the day of the incident the patientcompleted three successful slides using the bathroom doorDuring the fourth slide the door suddenly opened thrustingthe patient to the tiled bathroom floor

The defendant PTA cautioned the patient to remain still andcalled 911 for assistance The defendant PTA also notified heremployer and the patientrsquos physician of the patientrsquos fall Priorto EMS arrival and despite the physical therapist assistantrsquoscaution the patient repositioned herself to a sitting positionThe patient stated she had no pain or discomfort from the falland was assisted to a standing position by EMS staff Sheambulated with assistance approximately ten feet sat in herchair stated she was fine and refused multiplerecommendations for transport to the hospital for furtherevaluation Because of the patientrsquos refusal to be transportedand because she was home alone the insured attempted

(unsuccessfully) to contact family members to come and staywith her When the defendant PTA left the patientrsquos homethe patient appeared to be in stable condition had nocomplaints and stated she would be fine alone The physicaltherapist assistant does not know when the husband or anyother family member returned but she later learned that thefamily was upset that she had left the patient alone

Later that day the patient was transported to the hospital byher family with complaints of pain and the inability to moveher lower extremities She was admitted to the intensive careunit for five weeks where she continued to suffer pain and postinjury paraplegia secondary to fracture of the third thoracicvertebrae with an extensive spinal hematoma When it wasdetermined that her condition would not improve and nolonger required acute hospital care she was discharged homewith 24-hour home care assistance Her condition continuedto deteriorate and she died two days after arriving home

The family expressed anger because the physical therapistassistant left the patient alone after her fall and ignored thedaughterrsquos prior request to cease the wall slide exercises Thefamily requested that the home health agency take punitiveaction against the defendant PTA The PTArsquos employer carriedout an investigation of the incident and performed directsupervision to assess the quality of her work Her techniquesand practices were evaluated as being excellent and she wasnot terminated Any actions by the employer to investigate thephysical therapist are unknown

The patientrsquos husband sued the home health agency thephysical therapist and the PTA for damages resulting in hiswifersquos pain and suffering paraplegia and death and for his ownloss when she died

CASE STUDY WITH RISK MANAGEMENT STRATEGIES

Case Study Improper treatment resulting in patient death

Note There were multiple co-defendants in this claim who are not discussed in this scenario Monetary amounts represent only thepayments made on behalf of the physical therapist assistant Any amounts paid on behalf of the co-defendants are not available Whilethere may have been errorsnegligent acts on the part of other defendants the case comments and recommendations are limited to theactions of the defendant the physical therapist assistant

Summary

continuedhellip

Medical malpractice claims can be asserted against any healthcare provider including physical therapists amp physicaltherapist assistants Although there may be a perception that physicians are held responsible for the majority of

lawsuits the reality is that physical therapy professionals are more frequently finding themselves defending the carethey provide to patients In fact over $44 million was paid for malpractice claims involving physical therapyprofessionals according to the most recent CNA HealthPro 10-year study

CNA HealthPro Physical Therapy Liability 2001-2010 CNA Insurance Company December 2011 To read the complete study along with risk management recommendations visitwwwhpsocomptclaimreport2011The 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 adviceCNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel andor other professional advisors before applying thismaterial 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 forillustrative 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 foran insured Use of the term ldquopartnershiprdquo andor ldquopartnerrdquo should not be construed to represent a legally binding partnership All products and services may not be available in all states and may besubject to change without notice CNA is a registered trademark of CNA Financial Corporation Copyright copy 2014 CNA All rights reservedThis 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 toestablish 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 CNAassumes 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 159 EastCounty Line Road Hatboro PA 19040-1218 Phone (215) 773-4600 All world rights reserved Reproduction without permission is prohibitedHealthcare Providers Service Organization is a registered trade name of Affinity Insurance Services Inc (AR 244489) in CA amp MN AIS Affinity Insurance Agency Inc (CA 0795465) in OK AIS AffinityInsurance Services Inc in CA Aon Affinity Insurance Services Inc (0G94493) Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY AIS Affinity Insurance Agencycopy 2014 Affinity Insurance Services Inc X-10587-0214

Risk Management is an integral part of a healthcare professionalrsquos standard business practice Risk management activitiesinclude identifying and evaluating risks followed by implementing the most advantageous methods of reducing or eliminatingthese risks - A good Risk Management Plan will help you perform these steps quickly and easily

Visit wwwhpsocomrisktemplate to access the Risk Management plan created by HPSO and CNA We encourage you to usethis as a guide to develop your own risk management plan to meet the specific needs of your healthcare practice

Guide to Sample Risk Management Plan

Risk Management Recommendationsbull Know and practice within your state-specific scope of practice and standard of care

bull Evaluate the safety of the physical environment in relation to the patientrsquos condition and therapy needs prior to eachtreatment

bull Cease any treatment deemed to present a safety risk to the patient and contact the supervising physical therapist andorphysician to make necessary adjustments to the treatment regimen

bull Immediately report and document any patient fall injury or adverse event and remain with the patient until medicalassistance arrives and transports the patient provides direct treatment or declares the patient is not injured

bull Document all refusals of recommended care and treatment and ask the patient to sign that they refuse treatment and areaware of the risks of that refusal If witnesses to the patientrsquos refusal are present document their names and contactinformation for future reference

bull Document all interactions with the patient authorized family members and professional staff

bull Document all attempts to obtain supervision for a patient who has been injured but who refuses treatmentunderstanding that it may be necessary to remain with the patient until an alternative person can be located

It would have been prudent for the physical therapist assistant to have arranged for someone to remain with the patient beforeleaving If she was unable to reach family members and was unable to stay herself she might have contacted her employer to arrangefor another staff member to remain with the patient until the family returned and to observe the patient for changes in her condition

Risk Management Comments

ResolutionNo expert witness could support the therapy provided by the defendant physical therapist assistant The PTA was deemed negligentin the following areas bull Failure to notify the physical therapist regarding uneven wall surfaces and her decision to move the patient to the

bathroom door for wall slide exercises The decision to modify the therapy regimen was outside her scope of practice bull Failure to notify the physical therapist that the patientrsquos daughter requested discontinuation of wall slide exercises

due to her motherrsquos instability

Based on the findings of negligence the decision was made to proceed to mediation After several failed mediation attemptssettlement was achieved during jury selection

Physical Therapists and Medical Malpractice


Medical malpractice extends to every aspect of the medical field including physical therapy While commonperception maybe that doctors bear the brunt of lawsuits the reality is that physical therapists are

increasingly finding themselves defending the very care they provide ndash and it can be costly In fact $44 millionwas paid for malpractice claims involving physical therapists according to the most recent CNA HealthpPro10-year study

Settlement in excess of $200000 Legal Expenses in excess of $90000

The patient (plaintiff) was a nine year old child with cerebralpalsy who had undergone extensive surgery for correction ofbilateral ankle contractures He was referred back to physicaltherapy following removal of the casts from both legs Inaddition to his surgery the patient had a history of balanceproblems as well as pain and weakness on his right side Hewas well known to the physical therapist (defendant) who hadprovided his strengthening and balance therapy prior tosurgery

The defendant physical therapist applied specialized orthoticsas ordered by the surgeon and that were designed to maintainthe patientrsquos proper ankle position during therapy Thedefendant physical therapist selected a therapeutic exercisethat was well known to the patient and placed the patient ina seated position on a therapy ball which was stabilized againstthe wall behind him and with chairs on both sides of him The

patient was directed by the defendant physical therapist to holdthe therapy ball handle with his left hand and with his righthand to toss small beanbags into a basket in front of him Thedefendant physical therapist remained with the patientcontinuously standing on his left side during the exercise

The patient suddenly slipped to his right and was momentarilyunable to reach out to stabilize himself The defendant physicaltherapist reached him and eased him to the floor The patientimmediately complained of pain in the back of his right kneeand emergency services were called to take him to the hospitalAt the hospital he was diagnosed with a non-displaced fractureof the right tibia and an over-the-knee cast was applied Thechild remained in the cast for two months and the fracturehealed without deformity

The childrsquos parents sued the physical therapist on behalf oftheir child for negligence resulting in a tibia fracture


Case Study Improper Performance Using Therapeutic Exercise

ResolutionExperts deemed that the orthotic acted as the fulcrum point of the fracture and that the fracture was a direct result of the fallExperts agreed with the defendant physical therapistrsquos application of the orthotics and the physical therapistrsquos choice of the exercisefor the patientrsquos weakened right hand and side However experts were critical of the defendant physical therapistrsquos choice to standto the left of the patient during the exercise since it was his right side that was known to be weaker and the therapist could haveanticipated that any fall would most likely happen to the right

Given the facts of the case and the very sympathetic presentation of the child the decision was made to settle the claim

While the defendant physical therapist knew the patient well this was the first therapy session after a long period of timeand the therapist may have overestimated the patientrsquos ability to safely perform exercises that he had performed prior to thesurgery Additionally the orthotics were new to the patient and may have affected his ability to maintain his balance on thetherapy ball


continuedhellip

CNA HealthPro Physical Therapy Liability 2001-2010 CNA Insurance Company December 2011 To read the complete study along with risk management recommendations visitwwwhpsocomptclaimreport2011This publication is for educational purposes It is not legal professional or medical advice CNA makes no representations as to its correctness or completeness and accepts no liability for any injury ordamage that may arise from its use Specific legal or medical questions should be referred to a competent attorney or medical professional before applying this material in any particular factualsituations This material may address and discuss matters for which your policy does not provide coverage and the material does not create or imply the existence of coverage Please consult yourinsurance policy for the specific terms coverages amounts conditions and exclusions of coverage All products and services may not be available in all states and may be subject to change withoutnotice CNA policies are underwritten by the propertycasualty companies of CNA Chicago IL CNA is a registered trademark of CNA Financial Corporation copy 2013 Continental Casualty Company Allrights 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 toestablish 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 CNAassumes 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 159 EastCounty Line Road Hatboro PA 19040-1218 Phone (215) 773-4600 All world rights reserved Reproduction without permission is prohibitedHealthcare Providers Service Organization is a registered trade name of Affinity Insurance Services Inc (AR 244489) in CA MN amp OK AIS Affinity Insurance Agency Inc (CA 0795465) in CA Aon AffinityInsurance Services Inc (0G94493) Aon Direct Insurance Administrator and Berkely Insurance Agency and in NY and NH AIS Affinity Insurance Agency copy 2013 Affinity Insurance Services Inc

x-10118-0113




Risk Management Recommendationsbull Assess the patientrsquos condition at the start of every therapy session and before initiating each therapeutic activity

bull Recognize that any injury illness or change in their physical or emotional condition or a significant lapse of time sincetheir prior treatments may cause the patient to respond very differently to an exercise than they have in the past

bull Consider using additional personnel to support and supervise the patient during their first several therapy sessionsafter they have been away from treatment or have had a change in condition since their last therapy treatment

bull Evaluate the effect that new patient equipment or devices such as orthotics braces or splints could have on the patientduring exercises While such devices may provide additional support to one part of the body their effect on the patientrsquosmovement and potential risks to other body areas should be specifically evaluated

bull Provide support and supervision at the location where the patientrsquos known disability injury or pain is more likely tomake them vulnerable to falls or injury during the performance of therapeutic exercises

Physical Therapists Medical Malpractice

Case Study with Risk Management Strategies

Case Study Failure to properly monitor the patient during therapy failure to provide support in the event of a fall and failure to use the proper equipment for the exercise being performed

Indemnity Payment $175000Legal Expenses $17023

Medical malpractice claims can be asserted against any healthcare provider including physical therapists In fact $44 million was paid for malpractice claims involving physical therapists according to the most recent CNA HealthPro 10-year study

This case involves a self-employed contract physical therapist working at a rehabilitation facility

Summary Note There were multiple co-defendants in this claim who are not discussed in this scenario Monetary amounts represent only the payments made on behalf of the physical therapist Any amounts paid on behalf of the co-defendants are not available While there may have been errorsnegligent acts on the part of other defendants the case comments and recommendations are limited to the actions of the defendant the physical therapist

The patient was a 49-year old female recovering from a hit and run motorcycle accident in which she sustained a fracture of the fourth cervical vertebrae crushed spine and a fractured right wrist Following a 95-day in-patient hospitalization where she underwent multiple surgeries and was in a coma for several days she was admitted to a rehabilitation facility to receive extensive physical and occupational therapy On admission to the rehabilitation facility she did not complain of any pain but was only able to ambulate using a rolling walker due to muscle tightness weakness and sensory deficit to her lower extremities The defendant physical therapist examined the patient upon admission and made note that the patient was morbidly obese and had a long history of both heavy smoking (two packs of cigarettes a day) and prednisone steroid use He recommended a therapy plan based on the patientrsquos limitations and goals

Five months into her therapy the patient was performing an exercise that she had performed many times during her therapy treatments She held onto the bars from two machines one with each hand stood on her left leg and

had her right foot placed on a round exercise ball With her right foot on the round exercise ball she would move her foot back and forward in order to engage the muscle of her left hip and improve her strength and range of motion The defendant physical therapist positioned a non-moving chair behind the patient in the event that she needed to sit down at any time and he sat on the floor in front of her to assist in ensuring the ball did not roll away During the exercise the patient felt weak on her right leg and moved to sit down however her weight was such that she transferred weight very heavily onto her standing leg and in doing so fractured metatarsal bones at the top of her left foot She never fell to the ground but she immediately sat down and complained of pain in her foot

The patient continued to recover at the rehabilitation facility participate in physical therapy and was discharged five weeks after to the fall

continued

Presented by

HPSO and CNA

Risk Management CommentsThe patientrsquos experts made several claims against the defendant physical therapist which included the following

bull The equipment the physical therapist used to have the patient hold onto was at different heights which created a hazardous environment

bull The physical therapist was on the floor in front of the patient and not behind to stabilize with a patient who is weak and overweight

bull The parallel bars could have been used for the same exercise which would have created handholds of the same height which would have led to a more solid foundation and equal distribution of weight

bull The physical therapist should have been guarding the patient by standing behind her for guidance

bull A gait belt should have been used to prevent a fall The defending attorney asked several experts to review this claim and received mixed opinions as far as support for the exercise our insured had the patient perform when she fell

Based on the findings of causation and the mixed reviews the decision was made to proceed to mediation

Additional Risk Management ConcernsThe defendant physical therapist was evasive and also untruthful in his answers to some questions that the defense attorney posed to him during the discovery phase We learned that while he claimed he did not have any ldquopolicies and proceduresrdquo manuals he actually had three volumes in his

clinic We also learned that the defendant physical therapist leaves his clinic open for patients to self-exercise when no licensed physical therapist is present which is against regulations The insured was also unable to meaningfully explain how the exercise was being performed this may only be due to a language barrier The initial demand was $363000 in damages The case went into mediation however the settlement value determined at mediation was rejected by the patient The case was set for trial Eventually both sides were able to negotiate settlement before trial It was felt that if this case went to trial the language barrier would have a negative impact on the jury

Risk Management Recommendationsbull Know and practice within your state-specific scope of

practice and standard of carebull Evaluate the safety of the physical environment in

relation to the patientrsquos condition and therapy needs prior to each treatment

bull Cease any treatment deemed to present a safety risk to the patient and contact the supervising physical therapist andor physician to make necessary adjustments to the treatment regimen

bull Immediately report and document any patient fall injury or adverse event and remain with the patient until medical assistance arrives and transports the patient provides direct treatment or declares the patient is not injured

CNA HealthPro Physical Therapy Liability 2001-2010 CNA Insurance Company December 2011 To read the complete study along with risk management recommendations visit wwwhpsocomptclaimreport2011The 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 andor 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 ldquopartnershiprdquo andor ldquopartnerrdquo 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 copy 2015 CNA All rights reservedThis 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 159 East County Line Road Hatboro PA 19040-1218 Phone (215) 773-4600 All world rights reserved Reproduction without permission is prohibitedHealthcare Providers Service Organization is a registered trade name of Affinity Insurance Services Inc (TX 13695) (AR 100106022) in CA MN AIS Affinity Insurance Agency Inc (CA 0795465) in OK AIS Affinity Insurance Services Inc in CA Aon Affinity Insurance Services Inc (CA 0G94493) Aon Direct Insurance Administrators and Berkely Insurance Agency and in NY AIS Affinity Insurance Agencycopy 2015 Affinity Insurance Services Inc X-11319-0315

Guide to Sample Risk Management PlanRisk Management is an integral part of a healthcare professionalrsquos standard business practice Risk management activities include identifying and evaluating risks followed by implementing the most advantageous methods of reducing or eliminating these risksmdash A good Risk Management Plan will help you perform these steps quickly and easilyVisit wwwhpsocomrisktemplate to access the Risk Management plan created by HPSO and CNA We encourage you to use this as a guide to develop your own risk management plan to meet the specific needs of your healthcare practice



Case Study Therapy for Back Pain caused Injury



This case involves a Physical Therapist and owner of the Private Practice

Summary Note Monetary amounts represent only the payments made on behalf of the physical therapist and his private practice Any amounts paid on behalf of the co-defendants are not available While there may have been errorsnegligent acts on the part of other defendants the case comments and recommendations are limited to the actions of the defendants the physical therapist and his private practice

The defendant physical therapist owns a private practice whose specialty is treatment of orthopedic conditions Initially the patient (plaintiff) a 55 year-old male received physical therapy from the defendant physical therapist following his total knee replacement A year later the patient was referred to the defendant physical therapist for treatment of his back pain Approximately two years later the patient contacted the defendant physical therapist to request consultation for his on-going back pain The patient did not have a physician referral but in light of their past relationship the defendant physical therapist agreed to see the patient for a consultation

The patient denied any history of trauma but advised he had been experiencing severe pain that had been increasing rapidly over the past several days He said ldquohe felt like something needs to poprdquo The patient could hardly lift his arms However he denied any dizziness or numbness The defendant physical therapist began a very basic spinal examination by having the patient lay flat on a physical therapy board The exam took about 2-3 minutes and the PT recalled palpating from the T-8 to T-4 levels He began the process of oscillating the facet joints and when he reached the T-4 level began a grade 3-4 test of range of motion At this point the patient complained of electrical shock brief and short The patient was then placed in the prone position and upon palpation it was noted the patient had severe muscle spasms and reported a tingling shooting all the way to his legs At this point the defendant physical therapist quickly stopped the exam and informed the patient he could not continue further examination because the muscles were too tight He recommended that the patient stand up and go to the massage table where the defendant physical therapist would try a light massage to loosen the muscles and then continue the evaluation The patient was placed

on a massage table with a low setting of 8 pounds After 15 minutes the defendant physical therapist assisted the patient off the table when the patient began complaining of tingling in his legs The defendant physical therapist determined that the patient had a serious neurological issue recommended emergent treatment and called an ambulance The patient claims to have lost function of his legs by the time the ambulance arrived about 15 minutes later

The patient was transported to a nearby medical center where an MRI of the thoracic spine showed multilevel degenerative disc disease with mixed protrusions causing various degrees of central canal stenosis The patient was then transported to a hospital where an MRI of the cervical spine determined the patient had a large disc herniation at the C6-C7 level The next day an anterior cervical discectomy and spinal fusion was performed Following surgery the patient was left with paralysis in his lower extremities After an extensive stay in a rehabilitation facility and subsequent physical therapy the patient has limited feeling in his legs and is confined to a wheelchair

continued

Presented by

HPSO and CNA

Risk Management CommentsThrough a mutual friend the defendant physical therapist learned that the patient may have been less than candid during their consultation Specifically the defendant physical therapist learned that the patient had been experiencing neck and back problems for approximately three weeks and had apparently been in some sort of accident However despite an exhaustive search we were unable to confirm proof of this accident

PT expert witnesses for the defense were supportive that the defendant physical therapist met his standard of care in light of the direct access provisions in this state However two expert neurosurgeons were unsupportive and advised that the defendant physical therapistrsquos actions caused the paraplegia A suit was filed alleging negligent treatment and failure to take a thorough patient history ultimately resulting in paralysis To compensate for medical bills pain and suffering and lost wages a demand in excess of $5000000 was sought Without expert support and in consideration of the patientrsquos paralysis this was a claim to resolve The matter was ultimately settled prior to trial


practice and standard of carebull Elicit the patientrsquos concerns and reasons for the visit and

address those concernsbull Gather document and utilize an appropriate patient

clinical history as well as relevant social and family history A new patient clinical history must be performed at the beginning of each ldquonew problemrdquo visit

bull Adopt an informed consent process that includes discussion and teach-back from the patient and demonstrate that the patient understands the risks associated with treatment



bull Factually and thoroughly document any unusual occurrences that arise during the patientrsquos treatment of care


Guide to Sample Risk Management PlanRisk Management is an integral part of a healthcare professionalrsquos standard business practice Risk Management activities include identifying and evaluating risks followed by implementing the most advantageous methods of reducing or eliminating these risks ndash a good Risk Management Plan will help you perform these steps quickly and easilyVisit wwwhpsocomrisktemplate to access the Risk Management Plan created by HPSO and CNA We encourage you to use this as a guide to develop your own Risk Management Plan to meet the specific needs of your healthcare practice


appropriate healthcare professionals is important whether patients are referred to physical therapy or are seen via direct access

Record your actionsThe most important source your defense attorney has to validate what you did is the patientrsquos health record Although finding time to document is a challenge for busy PTs itrsquos an essential step to defend yourself successfully should you be named in a lawsuit

Here are specific items related to managing a pa-tient over the course of treatment that you should be sure to document your conversations with referring practitioners

about changes in the patient status and outcomes from the discussions

clarifications about the treatment order the details of any adverse events including patient

signs and symptoms who was notified and action taken (you should also complete an incident report but do not place it in the patientrsquos health record)

assessment findings and notification of the refer-ring practitioner as needed

the fact that if you did not reach the referring practitioner you followed the chain of command to inform an appropriate practitioner

referrals to other practitioners or therapists as warranted

Of course you should also follow basic documen-tation principles such as dating timing and signing each entry and following the organizationrsquos policy if you have to make a correction

In the loopManaging the patient appropriately and keeping the referring practitioner informed of changes facilitate optimal care for patients An APTA position state-ment notes that characteristics of autonomous PT practice include the ldquoability to refer to and collabo-rate with healthcare providers and othersrdquo and rec-ognizing when the PT needs to request consultation Using good professional judgment in your practice can help you avoid litigation

RESOURCES

American Physical Therapy Association Autonomous physical therapist practice httpwwwaptaorguploadedFilesAPTAorgAbout_UsPoliciesPracticeAutonomousPTPracticeDefinitionsPrivilegespdf

American Physical Therapy Association Code of ethics for the physical therapist httpwwwaptaorguploadedFilesAPTAorgAbout_USPoliciesHODEthicsCodeofethicspdf

American Physical Therapy Association Referral relationships httpwwwaptaorguploadedFilesAPTAorgAbout_UsPoliciesReferralReferralRelationshipspdfsearch=rdquoreferrdquo

CNA HealthPro HPSO Physical therapy liability 2001-2010 httpwwwhpsocomresourcesclaim-studiesjsp

Texas Occupations Code Title 3 Health professions Subtitle H Professions related to certain types of therapy Chapter 453 Physical therapists Subchapter A General provisions nd httpwwwstatuteslegisstatetxusDocsOChtmOC453htm

Wisconsin Subchapter III Physical therapy examining board 44856 Practice requirements httpsdocslegiswisconsingovdocumentstatutes44857(2)(f)

Tips for patient managementFollow these tips to ensure you keep referring practitioners informed Contact the referring practitioner if you have

any questions or need clarification regarding - the patientrsquos medical or postsurgical status - the requested treatment - signs and symptoms Notify the practitioner of any findings from your

examination that concern you Stop treatment immediately if the patient has

an adverse event and notify the referring practitioner

Report lack of expected improvement or nega-tive changes in status to the referring practitio-ner If necessary refer the patient back to the practitioner or to a practitioner with the appro-priate expertise

Follow up with the practitioner if you fail to re-ceive a response to your concerns If you still do not receive a response follow the chain of command to notify the appropriate person

Send a copy of the plan of care and discharge summary to the referring practitioner

In the patientrsquos health record document noti-fications and conversations with the referring practitioner















































RESOURCES






























RESOURCES


















Summary

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continued

Presented by

HPSO and CNA




























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HPSO and CNA



























































RESOURCES






























RESOURCES


















Summary

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continuedhellip


x-10118-0113




















continued

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HPSO and CNA




























continued

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HPSO and CNA






























RESOURCES


















Summary

continuedhellip




































continuedhellip


x-10118-0113




















continued

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HPSO and CNA




























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HPSO and CNA


























Summary

continuedhellip




































continuedhellip


x-10118-0113




















continued

Presented by

HPSO and CNA




























continued

Presented by

HPSO and CNA














































continuedhellip


x-10118-0113




















continued

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HPSO and CNA




























continued

Presented by

HPSO and CNA














x-10118-0113




















continued

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HPSO and CNA




























continued

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HPSO and CNA
























continued

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HPSO and CNA




























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HPSO and CNA













heathcare providers service organization risk advisor for ......the course of a patient’s...

Documents