Legal Review & Commentary
$1 million awarded to paralyzed dentist
News: A 68-year-old paraplegic male was undergoing occupational therapy to increase his level of independence following a spinal cord injury. The patient's primary goal was to complete toilet transfers independently to avoid the need for a colostomy. During a therapy session in February 2007, the patient sustained a femur fracture when pressure was applied to his leg during therapy. The patient claimed that the femur fracture was a result of negligence, and a jury agreed. The jury awarded him more than $1 million in damages.
Background: In 2006, a 68-year-old man fell while trimming his trees, which rendered him a paraplegic. The patient underwent therapy and medical treatment in the hospital and in the hospital's rehabilitation facility.
Six months after the initial injury, the patient continued treatment at the hospital's rehabilitation center for bowel control issues and toilet and transfer training in an effort to avoid the need for a colostomy. The patient had a history of heterotopic ossification, or bone growth in the muscle adjacent to the femur, which his therapists were aware of.
In February 2007, the patient was being treated by an occupational therapist, who was an employee of the hospital. During therapy, pressure was applied to the patient's femur, and a fracture resulted. The patient underwent surgery to repair the fracture; however, the patient was unable to continue or later resume therapy due to the new injury. Subsequently, the patient was never able to perform his own wheelchair transfers or continue other toilet training. The patient was required to have a permanent colostomy placed after the femur injury.
In court, the patient and his experts claimed that the therapist was negligent. Experts testified that because the therapist knew of that the patient suffered from heterotopic ossification, it was negligent for him to apply pressure to the patient's leg in such a way that would result in a fracture that required surgery to repair. The plaintiff's expert claimed that the injury was avoidable and there were no previous femur fractures. The hospital and therapist argued that they did not violate the standard of care and the injury was unavoidable.
The jury sided with the paraplegic patient and awarded him $1 million in damages.
What this means to you: Gaining and maintaining independence is an ongoing goal of those with a disability. In this situation, a patient was undergoing rehab to meet that goal when the event occurred that would prevent the patient being able to attain that goal forever. While many people have permanent colostomies and live a quality life, this man was undergoing rehab to avoid that eventuality. The jury awarded this patient a considerable amount of money to compensate for the injury after hearing the facts of this incident. However, the money will never be able to replace this patient's lost independence.
Lack of exercise and weight bearing, along with wasting of muscle mass, are factors that can influence bone strength. These potential factors and the other co-morbidities mentioned should have been flags that this patient was at risk for fracture. Occupational and physical therapists undergo education and training to understand this concept as it relates to therapy and patient care. We have no further information as to the type of and reason for the pressure applied to the femur.
Therapists, in private practice and in the hospital setting, participate in research and play a key role in optimizing wellness, fitness, and quality of life by enhancing movement, strength, and physical health. Physical therapists often are called upon to assist patients in regaining the mobility and strength they need to return to work or school, as well as normal life activities, after surgery, debilitating illness, or traumatic injury. However, when a patient is injured while engaging in therapy, the therapists (and their employers) become vulnerable to professional liability claims. To prevent patient injury and adverse outcomes, and to minimize risk and liability, therapists must incorporate effective quality improvement, risk management, infection control, and patient safety strategies into their clinical practice.
Competency evaluations by the facility of all clinical staff members, including those assigned to the physical therapy department, should be undertaken annually. Some physical therapy departments employ physical and occupational therapy techs to assist the therapists. In this case we do not know if that employment situation was in place. In any department where therapy assistants are utilized, parameters of function and supervision of their therapy work with patients should be a policy and practice. Likewise, therapists should be educated on the importance of reading through patient charts and related documentation to gain a full understanding of the patient's issues before making clinical determinations about course of treatment.
Conditions of Participation for physical therapists are found in the Code of Federal Regulations; "Title 42: Public Health Part 485 Conditions of Participation: Specialized Providers; Subpart H Conditions of Participation for Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services." Contained therein are certain requirements governing a physical therapy patient's plan of care and physician involvement. Specifically, a plan of care is required to be established by a physician or by the physical therapist who furnishes the services. The plan of care anticipates goals and specifies type, amount, frequency, and duration of services. This plan and the results of treatment are reviewed by the physician or the individual who established the plan at least as often as the patient's condition requires. If there is an attending physician, the physical therapist must promptly notify the physician of any change in the patient's condition or in the plan of care.
The therapist's specified scope of practice is critical to determine whether liability may attach or potential allegations may result in malpractice litigation. It also forms the context within which a court can determine whether negligent conduct occurred. Facilities that employ or contract with therapists should be familiar with these requirements and ensure that personnel receive training regarding any limitations. Likewise, scopes of practice for each therapist should be maintained in the personnel files of the therapist and reviewed and revised as necessary. Ultimately, the conditions and the facility's documentation regarding the therapist's scope of practice give juries the information they need. They must decide whether the therapist adhered to or breached the standard of a reasonable and prudent therapist in the same or similar circumstances in a specific liability claim. There is no information given regarding whether a physician was involved in the treatment plan of this particular patient and whether any limitations were placed on the extent of the therapy services to be provided. The ability of the hospital to prove that the therapist acted outside his or her scope can sometimes mitigate a portion of the liability faced by the facility-employer.
Not only should a root cause analysis be undertaken to identify why and how this incident happened, but a Failure Mode and Effects Analysis (FMEA) also should be undertaken to identify proactively the steps of the process that are risk-prone. Loss control measures should be the focus of the risk management interventions to prevent such incidents from recurring.
Reference
Circuit Court of Michigan, Oakland County, Docket Number 2009102704NH.
A 68-year-old paraplegic male was undergoing occupational therapy to increase his level of independence following a spinal cord injury.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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