Physical Therapy Malpractice: Do PTs Really Get Sued?

As one of the 228,600 physical therapists in the U.S., you’re an expert in movement, recovery, and compassion. While you often work with at-risk individuals, you help all your patients optimize their safety and quality of life through prescribed exercise, hands-on care, and education. And because your patients offer a varied and often challenging list of ailments, injuries, ages, and capabilities, the simple truth is that you’re a potential target for lawsuits if things go wrong.

The good news is, relative to other malpractice lawsuits, there’s not currently a high volume of lawsuits against PTs in the U.S. However, the American Physical Therapy Association (APTA) reports that the cost of claims is growing. A 10-year study, from 2001 to 2011, revealed that $44 million in malpractice payments had been made during that time. A subsequent study that covered 2011 to 2015 found that payouts reached $42 million — and keep in mind that that was only within the span of five years, as opposed to 10.

Top Claims Filed Against Physical Therapists

Wondering what PTs get sued for most? Here’s a roundup of top claims made against Physical Therapists:

• Improper management: This is a sort of catch-all category and includes issues like failure to:
  • Do a proper assessment
  • Follow doctors’ orders
  • Stop treatment if there is pain
  • Obtain informed consent
  • Refer and report patient symptoms
• Manual therapy (i.e., hands-on) errors
• Failure to supervise or monitor
• Improper use of therapeutic exercise
• Improper use of a biophysical agent (i.e., ultrasound, electrical stimulation, oxygen therapy)

The Difference Between Negligence & Malpractice in Physical Therapy

You’ll often hear of claims filed as either “negligence,” “malpractice,” or “negligence and malpractice.” Attorney Dena Operman of Wilson Elser Moskowitz Edelman & Dicker breaks down the difference between these types of claims.

“Negligence is when the PT fails to exercise the care that a reasonably prudent PT would use under similar circumstances,” she says. “For example, the PT leaves items like weights and mats on the floor and a patient trips and falls.”

Operman goes on to explain that medical malpractice can be viewed as a subgroup of negligence.

“The definition [of malpractice] includes ‘failure to provide the degree of care or conform to the standard of care required by a like [practitioner] PT in the same community, under similar circumstances, causing actual injury to the patient,’” Operman says.

For example, persisting with a particular exercise despite observance of the patient’s inability to continue might be considered malpractice for a PT.

Operman says the standard of care required for PTs varies from state to state, depending on the rules, regulations, and guidelines in that state.

The Elements of a Successful Malpractice Claim

Four main elements must exist together in order to establish malpractice against a practitioner:

1. A “duty of care” must exist: In other words, it’s a legal, contracted relationship, as a PT must protect patients from unreasonable risk of harm at all times during treatment.
2. The duty of care is breached: You failed in some way during the course of the care. For example, a patient breaks his hip when you use improper techniques while moving him.
3. The PT’s error must be the actual cause of the harm: Just because you made a mistake and the patient got hurt doesn’t mean one caused the other. The injury cannot be the result of some independent cause.
4. There must be damages: The harm caused must be enough to result in some form of measurable damages. For example, if the patient must now have surgery to repair the fractured hip, which is an unexpected outcome, the expense of the additional surgery — and all that goes with it — is part of the quantifiable damages.

Food for Thought: 3 Real Physical Therapy Malpractice Case Studies

Case Study #1: Walker v. Segura Jr. and Athletico Physical Therapy

• Source: Cook County Circuit Court Case Number 2015-L0-09725
• Claims: Negligence and malpractice
• Facts: On Oct. 29, 2013, a patient received physical therapy at Athletico for back and foot pain. Treatment included spinal compression. She sustained a compression fracture and required surgery and other future medical needs/expenses.
• Allegation: The PT caused or worsened her injury because she had a history of osteopenia, making her more susceptible to injury. Plaintiff sought $50,000, plus court costs.
• Result: On Feb. 25, 2016, the patient filed a motion to dismiss the claim.

Case Study #2: Hough v. Sports Pro Physical Therapy LLC

• Source: Maryland Health Claims Arbitration, Feb. 7, 2017
• Claims: Negligence and malpractice
• Facts: Female patient was in a car accident, injuring her right foot/ankle and lower back. She had three months of physical therapy as part of her treatment for the accident, then had surgery done on her right ankle. After her procedure, she went back to Sports Pro Physical Therapy for rehab of the right ankle. About three months later, her surgeon discovered a non-displaced fracture of her right ankle. She had to undergo an open reduction and internal fixation of the new fracture, which required a lengthy rehabilitation.
• Allegation: It was the opinion of the surgeon that the therapist caused the fracture because they used a balance board as part of therapy “against medical advice.”
• Result: Nothing as of publication of this article.

Case Study #3: Balser v. Providence Health and Services

• Source: Justia US Law
• Charge: Negligence and malpractice
• Facts: A female patient was in physical therapy for “tennis elbow,” for which her therapist provided electrical muscle stimulation (EMS) treatment. He used the Russian Electrical Stimulation method, which, when done properly, uses electricity to stimulate muscle contractions along certain muscles, causing the shoulder to lift or shrug. During the 30-minute treatment, the PT left the room, and the patient started feeling dizzy and her heart started racing. When the PT returned, her pulse rate was at 152 beats per minute and she had high blood pressure. While those initial symptoms improved, the patient had recurring instances of dry mouth, breathlessness, and anxiety.
• Allegation: Plaintiffs sued for more than $1.2 million, claiming that the electrodes were incorrectly put on her neck and affected the stellate ganglion, which damaged nerves that serve her salivary glands and heart.
• Result: After a seven-day trial with four expert witnesses, the jury ruled in favor of the physical therapy practice. The patient and her husband appealed, saying that this placement was experimental — it’s typically placed on the deltoid — and that the PT’s “research” was not disclosed to the patient. They were granted a new trial and won.

Do PTs Buy Individual Malpractice Insurance Policies or Get Insured by Their Workplace?

While many practice owners buy a group policy to cover the PTs and other healthcare professionals in their practice — such as personal trainers, massage therapists, and acupuncturists — many therapists choose to get a supplemental malpractice insurance policy for some professional backup.

This helps if:

• A fellow employee files a claim against you.
• You’ve changed jobs and a claim is filed against you for your actions while you were with your previous employer.
• You have to take unpaid time off while you attend legal proceedings.
• The claim filed against you includes a number of coworkers, and your employer’s policy may not have adequate limits to protect you and your fellow employees entirely.
• Your employer or coworkers are at fault and you want to clear your name.

If you ever have questions about your medical malpractice insurance, don’t hesitate to speak with your employer or insurance provider. It’s important that you’re aware of what’s covered (and what’s not) so you know exactly where you stand if you ever have to use it.

 

Image courtesy of iStock.com/Moyo Studio

 

Last updated on Jul 24, 2024.
Originally published on Feb 21, 2020.

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The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice. Click here to read our full disclaimer