An investment in professional liability insurance is a must for anyone in the rehabilitation industry regardless of whether you work independently in private practice, a group setting, or a hospital/health care facility. You should have an appropriate professional liability policy in place to provide adequate protection for the potential liability exposure.

In this article, we will cover key liabilities PTs might face so you can better understand your exposures and why you should have professional liability insurance to protect you. We offer information on how to get the full benefit of your coverage should a claim or lawsuit be filed against you. Also covered are some risk management practices to help reduce the likelihood of patient injury and financial loss, as well as examples of relevant cases so you can learn how your investment in professional liability insurance can work with you.

TYPES OF CLAIMS

According to data from a physical therapy claims study conducted by CNA Insurance, Chicago, fractures, burns, and delays in recovery were the most frequent types of patient injuries while claims with permanent total disability had the greatest severity. The most frequent allegations PTs faced were failure to supervise treatment or procedure, injury during manual therapy, improper technique, and injury during heat therapy or hot packs. The most severe claims involved the PT's alleged failure to report the patient's condition to a physician or other licensed independent practitioner responsible for the patient's overall medical care. Also among the claims with the highest severity were:

• Failure to complete a proper patient assessment;
• Failure to follow an established policy;
• Improper positioning; and
• Failure to refer the patient and/or seek a consultation.

COSTS

The amount of dollars it actually costs to purchase a great amount of insurance is very, very low for the PT.

"A high-risk OB/GYN, for example, might spend $150,000 a year on liability insurance. A PT is going to spend $350 or $400 a year, or whatever the current rate is for the same amount of coverage—$1,000,000/incidence and $3,000,000/aggregate," says Jonathan Cooperman, PT, DPT, MS, JD, a supervisor at Sports Medicine and Physical Therapy at The Akron General Health and Wellness Center in Stow, Ohio.

Cooperman is immediate past president of the Ohio Physical Therapy Association and has been a practicing PT for 30 years. Cooperman has faculty appointments at several universities where he teaches courses on legal and ethical issues in health care and human resource management. He is past chair, Ethics and Judicial Committee of the American Physical Therapy Association, and is past member of the Ohio Occupational Therapy, Physical Therapy and Athletic Trainers License Board.

CASE STUDIES

The following case information (#1 and #2) was presented in the CNA Health-Pro Physical Therapy Claims Study and reprinted here with permission of CNA Insurance Companies. The cases appeared in the section of the study titled, "The Legal and Regulatory Environment," in the subsection on "Relevant Case Law."

CASE STUDY #1—HOW GOOD NOTE-TAKING SKILLS CAN SAVE YOU

"Richey v Turocy. The lawsuit was brought against the hospital, defendant orthopedic surgeon and the physical therapist. The plaintiff alleged that the defendant's physical therapy treatment caused a subsequent heart attack. The defendant hospital maintained that the defendant physical therapist was experienced, properly trained, and should not be expected to make a referral outside the scope of the therapy. The verdict was rendered in favor of all defendants."¹

Regis Turocy, DHCE, PT, ECS, who is currently the volunteer director of physical therapy for Catholic Charities' free health center in Pittsburgh, was treating Richey in the above-mentioned case for back pain.

"He was admitted to the hospital several weeks before, and while there, his EKG was very abnormal," Turocy explains. "But nobody said anything about it nor did they do anything." Turocy says that during this time, Richey missed a couple of physical therapy sessions because he was home with the flu and had recently noticed that as he was walking in the store to get some bread, he had horrible chest pain. "I asked him if he had this before, and he said no," Turocy says. "I referred him to his family physician to get checked out, and his family physician never did anything about it." Richey then suddenly passed away of a massive stroke and heart attack at home.

"One of my notes basically said the patient was complaining of chest pain and I referred him to his family
physician," Turocy continues. "The lawyers assumed he was complaining of chest pain in my presence and I should have taken him to emergency, which was not the case at all."

Here's where you can make a case for taking notes. As an expert witness now in cases such as these, Turocy says that is one of the biggest things he sees—the lack of thoroughness of note taking. "It can save you a lot of problems," he stresses. The key is to keep notes of every session, explaining what you did and on what dates. Record these notes as soon as you can, while the details are fresh in your mind.

"I think documentation has always been important," Cooperman adds. "It is included under the broader heading of communication. Communication problems get people in trouble, either between the PT and the referral source or the PT and the patient."

"If you go out of your way to communicate well, which is what we should be doing anyway, that is probably your best risk-management tip," he says. "It is really about meeting the proper expectations for the patient."

Cooperman starts out each session with, "Here's what my expectations are; here's what we're going to do today." He finishes each session with, "We did a, b, and c. How are you doing? When are you coming back next? That kind of thing."

"Another thing that will get people in trouble is practicing outside their personal scope of practice," Cooperman says. "A physical therapy scope of practice is pretty large, and in most cases I've dealt with, it's not that somebody did something outside of their scope of practice by law, it's that they either made a really poor decision in terms of what exercise they chose or how they set the patient up, or in not protecting the patient," he says. "The question from a legal standpoint is would an ordinary and reasonable PT do the same for similar exercises under similar circumstances? If you think that you are doing what anyone else would do, then you're usually OK."

CASE STUDY #2—THE IMPORTANCE OF EDUCATING YOUR ATTORNEY ON PHYSICAL THERAPY

"Carlos v CNA Insurance Company. The plaintiff was unable to provide a causal connection between the acts of the physical therapist and the plaintiff's alleged injuries. The court went on to indicate that although this is a medical malpractice suit, none of the parties mentions a medical review panel. We are unable to determine whether the Medical Malpractice Act applies in this case, because we cannot determine whether the defendants were qualified for the status of healthcare providers under the Act. If not, it is unclear whether the burden of proof set forth in La.R.S. would apply. A healthcare provider who fails to qualify under the Medical Malpractice Act is not covered by its provisions and is subject to liability under the law without regard to the Act's provisions, except for the provisions with respect to the suspension and running of prescription of actions. In this case, however, the applicable standard of care became immaterial, because the defense presented uncontroverted medical evidence that the alleged acts of the defendant were not the cause of plaintiff's injuries and subsequent surgery."²

Bryan Soulie, PT, at River Region Rehab in Luling, La, was very involved with his case, as noted above. This was a workers' compensation situation, and the patient was an off-shore worker. River Region Rehab saw him following his initial back surgery. "He had a legitimate injury," Soulie says. "We treated him, and he claimed he got reinjured participating in his physical therapy and had to have subsequent back surgery. We were working with him in an attempt to get him back to his previous job, and in the course of exercising he said he reinjured himself," Soulie states. Although the physician testified that it was due to the extent of his injuries and that the first surgery might not help, he was told initially that he might need further surgery if it wasn't successful. "The claim was that he was hurt with us," Soulie says.

"You have to provide adequate assistance to the attorney to [properly] defend yourself," he explains. "I worked closely with the attorney assigned to me. We met many times," he adds. "I was able to provide the attorney with the clinical knowledge and combine this with his legal expertise. I provided all the specific aspects of the physical therapy practice, and we discussed the different scenarios of how things happen from a pathophysiological standpoint. The attorney really had a good grip on physical therapy as it related to what was going on with my patient," he says.

Soulie feels that it is really critical for therapists to be proactive. "Don't sell yourself out," he says, "especially if you didn't do anything wrong." Soulie says it's a two-way street. The insurance company provides the coverage, you have the resources of their legal team, but then you have a role in providing the clinical knowledge and background for the case. "If you have these and documentation, your chances are better," he concludes.

REDUCE YOUR RISK

	ON THE WEB: The complete CNA physical therapy claims study can be found on the CNA Web site at www.cna.com.
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By identifying areas where you are most at risk for professional liability claims, you can better understand your risks. By concentrating your risk-management efforts on areas of high claim frequency and severity, you can help reduce the likelihood of patient injury and financial loss.

Whether you are in solo practice, group practice, or employed by a larger entity, you must proactively incorporate effective quality improvement, risk management, infection control and patient safety principles and activities into your daily practice. You should know, understand, and annually review your state-specific scope of practice statutes and practice only within that defined scope, and if you are named in a professional liability lawsuit, you should have an appropriate professional liability policy in place to provide adequate protection for the potential liability exposure.

Nina Silberstein is a contributing writer for Physical Therapy Products. For more information, contact .