Jon Smith* is every therapist's nightmare.

It all started as a routine therapy session for this 49-year-old West Chester, Pa.-based chemical engineer. And over time, Smith says, he developed quite a positive therapist-patient relationship with his clinician. But something went terribly wrong over the course of his four-month care plan.

After falling from a ladder in 2002 and twisting his ankle, Smith says he experienced “sharp pain, [which the ER physician] said was only a hairline fracture and would heal on its own.” Although he described his pain to a physician, he says, “The X-ray never showed anything [of concern] and they never did an MRI.”

Because the pain persisted, Smith went to a foot and ankle specialist who also “didn’t see a big deal,” he says. When his physician prescribed physical therapy, Smith complied despite the increased pain. “I was doing the board where you rotate your ankle and basically just ripping up my ankle [without realizing it],” he explains. “They sent me to therapy and basically it never should have been because the bones were healing all wrong and scar tissue was forming around them.”

After four months of intense pain from exercising on a broken ankle, Smith visited an orthopedic surgeon who immediately recommended surgery. Now, despite the surgery, Smith experiences chronic pain with activity. The pain is now caused by deformed anklebones that healed incorrectly.

“I can walk on [the ankle], but it hurts and I can’t run on it,” he says. “I can bike, but don’t have any side-to-side mobility. I should have had surgery right away. I had it four months later; when scar tissue was already healed. The orthopedic [surgeon] said they didn’t do it right,” Smith says.

Despite the pain he now experiences on a daily basis, Smith says he’s still pleased with the care he received from physical therapists. “All the PT people were doing a good job.” He continues, “When I got my other CT scan and MRI because of the severe pain, I kept going to the therapist. The PTs were very caring and very helpful. I liked them a lot; they were great… [they were] just following orders.”

In hindsight, Smith says he would have requested an MRI immediately after his accident. “I probably should have complained about the pain more, but the PT said ‘if you can tolerate it, then it’s good.’ Who is to know what pain is good and what is not good?”

Ted Schaer, of Philadelphia-based law firm, Zarwin-Baum-Devito-Kaplan-Schaer-Toddy, says in his experience, therapists are rarely targeted in malpractice claims. He does, however, emphasize effective communication, accurate charting and a sense of personal responsibility as key in preventing patient injuries that could lead to a malpractice claim.

Although rare, malpractice suits against therapists generally occur when an accident happens during therapy. For example, Schaer says, “When a patient [is] recovering from, say, rotator cuff surgery, overexerts [themselves] during therapy and does too much in too short of a time period and re-injures the affected part of the body, they might file a claim,” he says.

For both large institutions and small private practices, there should be policies in place that every employee can refer to simply by opening a carefully laid-out policy and procedure manual. Below are some key points to keep in mind when creating your facility’s policy.

Communication

Therapists are trained to build a rapport with their patients to facilitate effective communication and create a healthy, working therapist-patient relationship. In order to provide the best care possible, this relationship serves as a base from which the therapist can both encourage patients and push them to accomplish difficult exercises.

Establishing a foundation of trust between a patient and therapist also sets the stage for open communication. A patient who feels comfortable with their therapist is more likely to discuss any challenges they are experiencing in therapy, including increased pain, instead of thinking that they must push through any and all pain associated with therapy. This is important because, as most therapists know, a significant increase in pain or change of symptoms may be a sign of trouble and should to be re-evaluated by a physician before continuing therapy.

According to Schaer, “Where there is a relationship with the healthcare provider, the patient will go out of their way not to sue them so long as that person was straightforward with the therapist.”

In cases where patients seek help from a lawyer, Schaer says, most often, it is because a patient experienced a lack of communication and something has gone wrong, such as a therapy result that was not planned by the physician, therapist or patient. “Generally the patient that comes to see me hasn’t gotten better despite intensive therapy or has even gotten worse,” Schaer says. “That kind of patient comes to a lawyer because of a lack of communication by the healthcare provider or [the patient] feels that the provider has kept information from them.”

Schaer says, in general, the therapy-related malpractice cases he sees involve a patient injured from excessively hasty or aggressive interventions, or because a therapist misinterprets a physician’s orders.

One thing that therapists do naturally – building a rapport with patients – goes a long way in creating effective communication and a patient-caregiver relationship. This results in a patient-therapist relationship that facilitates effective communication, helping to prevent miscommunication that could result in a malpractice suit.

Documentation

One mistake that can land a therapist in court is failing to keep accurate records. “If it is not charted, it didn’t happen,” Schaer says. Although a patient may downplay an increase in pain, it is important to contact the referring physician before proceeding to prevent any further damage to a healing knee, for example. “Do not rely on the patient to report to the physician and chart it,” Schaer says.

In some cases, the therapist is sued along with the physician. For example, if a patient is experiencing an increase in pain, checking patient records to ascertain the level of pain when they began the therapy regime and contacting the physician is important. If the unexpected occurs and a therapist is summoned to court for a malpractice case, referring to exact notes detailing a patient’s case serves as insurance against a successful suit, Schaer says.

According to Schaer, a jury takes documentation seriously and presenting any “evidence” in court that is not documented, or at least noted, in patient records will be thrown out. Schaer explains, “The jury will say, ‘they told me this was important,’ but because they didn’t chart [the important event or incident], it is as if it didn’t happen.”

Rare as they are, Schaer says one reason malpractice suits against therapists occur is a lack of evidence documenting that the therapist did their job. “When a lawyer analyzes a case for acceptance they interview patients, but they want to see the medical records,” Schaer says.

Negligence

As with any job, getting “too comfortable” and letting little things slide can be a slippery slope to a series of small mistakes that can lead to a malpractice suit. Schaer says that while cases of therapist neglect are rare, they do occur. There is not much protection for a therapist when neglect, if only for a few seconds, results in a patient’s injury.

Schaer says one case he worked with involved a client whose patient was exercising on a treadmill. When the phone rang and the therapist turned for a second to answer it, the patient fell and broke his leg. “In that case, there is little evidence to protect the therapist,” he says. “And what therapist could argue against that?”

Insurance

The general consensus among therapists and lawyers is that malpractice insurance is worth the cost. Because many therapists can purchase insurance through their organization and therapists are rarely the targets of malpractice suits, the cost is generally low when compared to the tens of thousands of dollars physicians spend on insurance each year.

“Sometimes a physician or therapist can do everything right and you an still get a bad result,” Schaer says. “Medicine is still an art, just as we tell juries … the bedside manner is really important and therapists generally have good bedside manner. In preventing these kinds of lawsuits, good communication, building relationships and documentation are the keys.”

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Kate DeBevois is the staff writer for Therapy Times. Questions or comments can be directed to editorial@TherapyTimes.com.

*Name has been changed to protect the patient's identity.