Many people assume that medical malpractice lawsuits can only be filed against someone with a l license to practice medicine: a doctor. In fact, any provider of medical care can be the defendant in a medical malpractice action: a nurse, a pharmacist, or a physical therapist. In fact, the nature of the work physical therapists do can make it more likely that they will injure a patient than some other providers might.
Physical therapists typically work with patients who have some sort of injury or physical limitation. In order for the patient to regain strength and function, the therapist often has to gently push the patient to move in a way that is uncomfortable. So just because physical therapy is difficult doesn’t mean that the physical therapist is committing malpractice. That said, it is the job of the physical therapist to constantly assess the patient’s pain level and ability, and to understand when discomfort is a sign of injury rather than of progress.
Sometimes, a physical therapist commits obvious misconduct, like sexually abusing a patient under the guise of treatment or physically abusing a frail elderly patient. Much more common than outright abuse is negligent behavior: failing to take action that is necessary for a patient’s well-being, or carelessly doing something that the therapist should have known could be harmful.
Many incidents of physical therapy malpractice arise out of insufficient supervision. Physical therapy centers and nursing homes may overbook appointments in order to cut costs or remain profitable. Unfortunately, this leads to situations in which the therapists cannot devote the time and attention to patients that they need. A therapist who is trying to supervise two (or more) patients at the same time cannot give either patient undivided attention and support. That increases the likelihood that a physically frail patient will lose their balance, fall, and be injured.
A therapist who is rushed or whose attention is divided may also fail to pay attention to cues that indicate a patient is having problems, especially if the patient is non-verbal. The therapist may overlook signs that the patient is in pain and fails to stop or modify treatment.
Physical therapy malpractice can also arise when a therapist fails to conduct therapy as the patient’s physician directed. On the flip side, a therapist may also commit malpractice by adhering to a doctor’s orders despite the fact that doing so is clearly injurious to the patient, especially if the therapist fails to report problems. Other examples of conduct that may amount to malpractice are improper use of therapeutic exercises or equipment; improper use of biophysical agents (like electrical stimulation, which is now popular); and failure to properly inform patients about the risk of treatment or obtain informed consent.
As discussed in a previous blog post about physical therapist malpractice, four things are required for a finding of malpractice: a duty to the client, a breach of that duty, an injury caused by the breach, and damages that arise from the injury. The duty is created by the therapist-patient relationship, so that is fairly simple to prove. Unless the physical therapist’s action was egregious or obvious, it can be more challenging to prove that the therapist breached their duty of care.
Let’s take a moment to talk about just what the duty of care is. A physical therapist, or any professional, has a duty to act as a reasonable professional with similar training and experience in the same circumstances would act. For example, a reasonable, prudent physical therapist would not let an elderly patient with osteoporosis and known balance problems perform exercises in a way that places the patient at risk for falls.
Causation can also pose a challenge in physical therapy malpractice cases. It’s not always obvious whether a patient’s difficulties stem from an injury by the therapist or the ailment that brought the patient to therapy in the first place. And if the injury wasn’t caused by the physical therapist’s breach of duty, there can be no damages arising from a breach.
All in all, it is a complex process to prove all four elements of physical therapist malpractice. These cases almost always require the testimony of expert witnesses. An experienced medical malpractice attorney is essential in gathering the evidence needed to mount a strong case.
As with other types of medical malpractice, you have only a limited amount of time in which to file a claim, and there are strict procedures which need to be followed. For that reason, it is important to consult with an experienced attorney as soon as possible. An attorney will help you determine whether you have a valid claim, and if you do, will help you to file it before it is too late.
If you have questions about physical therapy malpractice or want to file a claim against your physical therapist, we invite you to contact Huegli Fraser to schedule a consultation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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