Physical Therapy Liability 2001

2001-2010Physical Therapy Liability We firmly believe that knowledge is the key to patient safety.

Contents

PART ONE: CNA HealthPro Physical Therapy Closed Claims Analysis...... 5

Introduction...... 7

Purpose...... 7

Database and Methodology...... 7

Scope ...... 8

Terms...... 8

General Data Analysis...... 9 Analysis of Closed Claims by Insurance Source ...... 9 Severity of Physical Therapist Closed Claims by Year Closed ...... 10 Distribution of Closed Claims by Severity ...... 11 Analysis of Severity by Location ...... 12

Analysis of Severity by Allegation...... 13 Allegations by Category ...... 13 Allegations Related to Improper Management over the Course of Treatment ...... 14 Allegations Related to Failure to Monitor or Supervise...... 15 Physical Therapy Closed Claim Scenario: Failure to Properly Monitor or Supervise ...... 15 Allegations Related to Improper Performance Using Therapeutic Exercise ...... 16 Physical Therapy Closed Claim Scenario: Improper Performance Using Therapeutic Exercise...... 17 Allegations Related to Improper Performance of Manual Therapy...... 17 Allegations Related to Inappropriate Behavior by Physical Therapist ...... 18 Allegations Related to Equipment ...... 19 Allegations Related to Improper Use of a Physical Agent ...... 19 Physical Therapy Closed Claim Scenario: Improper Use of a Physical Agent...... 20

Analysis of Severity by Injury...... 20 Comparison of Re-injury Versus Other Injuries ...... 22 Analysis of Severity by Re-injury ...... 23 Analysis of Re-injury by Affected Body Part...... 23 Allegations Related to Re-injury ...... 24 Analysis of Claims Related to Burns ...... 26 Analysis of Severity Related to Burns by Body Part ...... 26 Analysis of Severity by Disability ...... 27

Summary Analysis of Physical Therapist Assistant Closed Claims ...... 28 Severity by Allegation ...... 28 PTA and PT Closed Claims: Comparison of Top Three Elements by Severity ...... 29 Physical Therapy Closed Claim Scenario: Alleged Improper Care (a Success Story)...... 30

Risk Control Recommendations...... 31

Risk Control Self-assessment Checklist for Physical Therapists ...... 36 Your Role and Responsibilities in Managing a Professional Liability Claim ...... 40 PART TWO: Healthcare Providers Service Organization Analysis of Physical Therapy License Protection Paid Claims January 1, 2001–December 31, 2010...... 41

Introduction...... 43

Scope ...... 43

Database and Methodology...... 43

License Protection Paid Claims ...... 43 Claims by Insurance Coverage Type...... 43 Claims by Licensure Type...... 44 Claims by Location ...... 44 Allegations by Class ...... 45 Allegations Related to Improper Management over the Course of Treatment ...... 46 Allegations Related to Inappropriate Behavior ...... 47 Allegations Related to Fraudulent Billing ...... 48 Licensing Board Outcomes ...... 49

Recommendations ...... 50

PART THREE: Highlights from Healthcare Providers Service Organization 2011 Qualitative Physical Therapist Work Profile Survey ...... 51

Introduction...... 53

Survey Background and Methodology...... 53

Summary of Findings ...... 55

Topic 1: Respondent Demographics ...... 56 Physical Therapy Licensure ...... 56 Gender...... 56 Age...... 56 Highest Level of Education ...... 57

Topic 2: Practice Profile ...... 58 Location of Practice ...... 58 Primary Language...... 58 Annual Continuing Education (CE) Requirements...... 59

Topic 3: About the Claim Submitted...... 60 Seeking PT Without a Referral ...... 60 Years of Practice at Time of Incident ...... 60 Patient Care Assistance ...... 61 Certified in Practicing Specialty ...... 62 Policy on Disclosure of Mistakes ...... 62 Effect of Inadequate Staffing...... 63 Number of Patient Visits Scheduled per Single Appointment Session Time...... 64 Supervision of Others...... 65

Topic 4: Facility Profile When Claim Was Submitted...... 66 Type of Medical Records ...... 66 Risk Management Plan...... 66 PART ONE CNA HealthPro Physical Therapy Closed Claims Analysis

PART ONE: Introduction Through Healthcare Providers Service Organization (HPSO), CNA continues to be the nation’s largest underwriter of professional liability insurance coverage for physical therapy professionals, with over 70,000 policies in force in 2011. In collaboration with our business partners at HPSO, we at CNA are dedicated to educating physical therapy professionals regarding professional liability risk exposures relevant to their practice. Part One of this report focuses on risks faced by physical therapists (PTs), whether they are insured as individuals or as employees of physical therapy practices. A subsection of Part One addresses the specific professional liability risk exposures for physical therapist assistants (PTAs) insured by HPSO/ CNA and other healthcare professionals providing services on behalf of a HPSO/CNA-insured physical therapy practice.

Purpose We firmly believe that knowledge is the key to enhancing patient safety and managing risk. Our goal is to help PTs enhance the quality of their patient care services by providing fact-based risk management information and guidance. The risk management information presented in this report is based upon an analysis of closed professional liability claims that resulted in sizable settlements or adverse judgments. Part One focuses on closed claims in order to identify the types of incidents most likely to have resulted in significant consequences for patients, therapists and practices. By offering data analysis, risk control recommendations and a self-assessment checklist, we strive to encourage our insureds to examine their own clinical practice and policies, discern areas of possible improvement, and dedicate themselves to maximizing patient safety and minimizing risk. We believe that physical therapy professionals in every type of practice setting will find this report a valuable educational resource.

Database and Methodology There were 3,889 professional liability closed claims and incidents attributed to CNA-insured physical therapy professionals in the HPSO program from 2001 through 2010. Professional liability claims were included in the final data set only if they - involved a licensed PT or PTA whether insured independently or through a PT practice or other healthcare professional providing services on behalf of a PT practice - resulted in a closure date between January 1, 2001 and December 31, 2010 - resulted in an indemnity payment equal to or greater than $10,000

Closed claims with an indemnity payment of less than $10,000 were excluded for the reason that they typically reflect injuries that were less severe and/or resolved without extensive litigation.

These criteria generated a data set of 552 closed claims. There were 477 closed claims asserted against PTs, 49 closed claims asserted against PTAs and 26 closed claims asserted against other healthcare professionals providing services on behalf of an insured PT practice. Findings for closed claims asserted against PTs or PTAs insured as individuals or by a PT practice, and against other healthcare professionals insured by a PT practice, are summarized in Figure 1 and Figure 2 (page 9). Findings for all closed claims meeting the criteria noted above and asserted against PTAs are summarized in Figure 23 and Figure 24 (pages 28 and 29). The methodology used in this report differs from the 2007 CNA Physical Therapy Claims Study and PT claims studies developed by other organizations. For that reason, it is not advisable for readers to compare findings in this report with those of other studies or reports.

CNA HealthPro andPART HPSO Physical Therapy Liability,ONE 2001–2010 7 Scope Claim characteristics analyzed within the report include incident location, allegation, injury, re-injury and related disability. Also included is a summary review of closed claims comparing individually insured PTs with PTs providing services as employees of insured PT practices.

Noted indemnity payments or expenses were paid by CNA on behalf of an insured and do not represent any additional amounts paid by employers, other insurers or other parties in the form of direct or insurance payments. This analysis reflects CNA data only and is not necessarily representative of all closed claims for PTs, PTAs and/or PT practices.

The process of resolving a professional liability claim may take several years. Therefore, claims included in this report may have resulted from events that occurred prior to 2001, as long as the claim closed between January 1, 2001 and December 31, 2010.

Terms For purposes of this report, please refer to the definitions below: - Allegation – An assertion that the professional or organization has done something wrong or illegal, which has not yet been proven. - Expense payment – Monies paid by CNA in the investigation, management or defense of a claim. - Incurred – Costs or financial obligations, including indemnity payments and expense payments, resulting from the management and resolution of a claim. - Indemnity payment – Monies paid by CNA to a plaintiff on behalf of an insured in the settlement or judgment of a claim. - Physical therapy practice (PT practice) – An organization insured through the HPSO/CNA physical therapy program that provides professional physical therapy services and whose employees may include PTs, PTAs, PT aides, massage therapists, athletic trainers and other healthcare providers. - Referring practitioner – A licensed independent healthcare provider other than a PT – such as a physician, dentist, advanced practice nurse, physician assistant, podiatrist or chiropractor – who is authorized to prescribe physical therapy treatments.

PART8 CNA HealthPro and ONEHPSO Physical Therapy Liability, 2001–2010 General Data Analysis Analysis of Closed Claims by Insurance Source Figure 1 provides an overview of claim results based upon the type of insurance coverage. The first row describes claim results for PTs, PTAs and other healthcare providers who received their coverage through a PT practice. The second and third rows describe claim results of PTs and PTAs who were individually insured. This is the only chart that includes all 552 claims in the database. Figure 2 provides additional detail regarding the PT practices data reported in Figure 1. - The highest average paid indemnity and the highest average paid expenses involved PT practices. This result is expected, inasmuch as the coverage provided for a PT practice is the primary source (i.e., first dollar) of insurance coverage for the corporation, its employees and independent contractors. Conversely, individually insured PTs and PTAs may share financial responsibility with an employer, healthcare facility or others. - Individually insured PTAs had an average paid indemnity similar to that of individually insured PTs. - PTs experienced 80.5 percent of the closed claims within PT practices. - The average paid indemnity for individually insured PTs (Figure 1) was $11,966 lower than for practice- insured PTs (Figure 2), while the average paid expense was $2,532 lower than for practice-insured PTs. Therefore, the average total incurred was $14,498 less for PTs with their own individual coverage than for PTs receiving coverage through a PT practice.

Claims by Insurance Source for All Physical Therapy Professionals Chart reflects closed claims with paid indemnity of ≥ $10,000 1

Percentage of Total paid Average paid Average paid Average total Insurance type closed claims indemnity indemnity expense incurred PT practice 63.0% $29,297,441 $84,188 $24,524 $108,712 (PTs, PTAs and other professional designations)

Individually insured PT 35.7% $14,272,033 $72,447 $21,612 $94,059

Individually insured PTA 1.3% $503,524 $71,932 $7,471 $79,403

Overall 100 .0% $44,072,998 $79,842 $23,268 $103,111

Claims by Providers Insured by a PT Practice Chart reflects closed claims with paid indemnity of ≥ $10,000 2

Percentage of practice-insured Total paid Average paid Average paid Average total Provider closed claims indemnity indemnity expense incurred

Athletic trainer 0.3% $350,000 $350,000 $23,521 $373,521

PT aide 6.6% $2,051,182 $89,182 $25,271 $114,453

PT 80.5% $23,635,663 $84,413 $24,144 $108,557

PTA 12.1% $3,210,596 $76,443 $26,962 $103,405

Massage therapist 0.6% $50,000 $25,000 $18,386 $43,386

Overall 100 .0% $29,297,441 $84,188 $24,524 $108,712

CNA HealthPro andPART HPSO Physical Therapy Liability,ONE 2001–2010 9 Please note that from this point forward, the analysis solely reflects PT closed claims . Data inclusion and exclusion criteria are explained on page 7 .

Severity of Physical Therapist Closed Claims by Year Closed - While average paid indemnity varied considerably from year to year, the overall trend increased approximately 4 to 5 percent annually (as represented by the trend line) over the course of the 10-year period of the analysis. - The increases in 2004 and 2009 were based on the high number of closed claims with paid indemnity equal to or greater than $200,000.

Average Paid Indemnity and Average Paid Expense by Year Closed 3 Chart reflects closed claims with paid indemnity of ≥ $10,000

Average paid by year closed 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Figure 4 displays average paid expenses for PT closed claims that closed with no indemnity payment. The data include closed claims with paid expenses of one dollar or greater for each of the 10 years included in the analysis.

A claim that resolved without an indemnity payment may incur costs associated with managing the claim. These costs, or claim expenses, include such items as attorney fees and costs incurred to investigate the claim. Claim expenses can vary due to the unique and sometimes complicated circumstances of each claim. While some individual claim expenses in these data exceeded $100,000, the 10-year average annual expense where there is no associated indemnity payment is $13,710. The claims included in this chart represent PT professional liability matters that were resolved as follows: - successfully defended on behalf of the PT, resulting in a favorable jury verdict - abandoned by the plaintiff during the investigative or discovery process - dismissed in favor of the defendant PT by the court prior to trial

PART10 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Average Paid Expenses for Closed Claims with No Indemnity Paid by Year Closed 4

Average paid expenses 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Average Paid Indemnity and Average Paid Expense by Year Closed 3 Chart reflects closed claims with paid indemnity of ≥ $10,000

Average paid by year closed 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Distribution of Closed Claims by Severity - Approximately 80 percent of the PT closed claims were resolved with an indemnity payment under $100,000. - Only 0.4 percent of the PT closed claims incurred the policy limit of $1 million. These claims reflect treatment that resulted in severe injury and irreversible harm to the patient.

Distribution of Closed Claims by Severity Chart reflects closed claims with paid indemnity of ≥ $10,000 5

Paid indemnity Percentage of closed claims

$10,000 to $99,999 Figure 4 displays average paid expenses for PT closed claims that closed with no indemnity payment. The data include closed claims with paid expenses of one dollar or greater for each of the 10 years included $100,000 to $249,999 in the analysis. $250,000 to $499,999

$500,000 to $749,999 A claim that resolved without an indemnity payment may incur costs associated with managing the claim. $750,000 to $999,999 These costs, or claim expenses, include such items as attorney fees and costs incurred to investigate $1,000,000 the claim. Claim expenses can vary due to the unique and sometimes complicated circumstances of each claim. While some individual claim expenses in these data exceeded $100,000, the 10-year average annual expense where there is no associated indemnity payment is $13,710. The claims included in this chart represent PT professional liability matters that were resolved as follows: - successfully defended on behalf of the PT, resulting in a favorable jury verdict - abandoned by the plaintiff during the investigative or discovery process - dismissed in favor of the defendant PT by the court prior to trial

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 11 Analysis of Severity by Location - The highest average paid indemnity resulted from closed claims that occurred in hospital inpatient PT areas. The high average paid indemnity for this complement of closed claims was driven by one claim that closed at the policy limit of $1 million. - The highest total paid indemnity resulted from closed claims that occurred in PT offices or clinics, followed by patient homes and hospital inpatient PT areas.

Analysis of Severity by Location 6 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Location closed claims indemnity indemnity

Hospital inpatient PT area 1.9% $1,779,000 $197,667

Fitness center 0.2% $96,500 $96,500

Aging services facility 2.3% $973,911 $88,537

Acute medical/surgical hospital inpatient 1.0% $400,471 $80,094

PT office/clinic - non-hospital 82.0% $30,764,890 $78,683

Industrial/occupational health 0.2% $75,000 $75,000

School 2.7% $921,175 $70,860

Patient home 8.4% $2,716,749 $67,919

Acute rehabilitation hospital inpatient room/area 0.2% $50,000 $50,000

Hospital outpatient area 0.8% $115,000 $28,750

Practitioner office or private clinic 0.2% $15,000 $15,000

Overall 100 .0% $37,907,696 $79,471

The highest average paid indemnity resulted from closed claims that occurred in hospital inpatient PT areas, while the highest total paid indemnity resulted from closed claims that occurred in PT offices or clinics.

PART12 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Analysis of Severity by Allegation The analysis of allegations begins with Figure 7, which includes data for allegations by category. More detailed reviews are provided for categories of allegations that accounted for 5 percent or more of the PT closed claims. These categories include - improper management over the course of treatment, Figure 8 - failure to supervise or monitor, Figure 9 - improper performance using therapeutic exercise, Figure 10 - improper performance of manual therapy, Figure 11 - inappropriate behavior by the physical therapist, Figure 12 - equipment-related, Figure 13 - improper performance using a physical agent, Figure 14

Allegations by Category - Failure to properly test or treat the patient reflected the highest average paid indemnity, but accounted for less than 1 percent of the PT closed claims. Some examples of failure to properly test or treat the patient included - using excessive weight when testing patient functional capacity - extending traction beyond acceptable traction time periods - including improper exercises in the patient’s treatment plan - advancing the patient’s treatment plan too rapidly - Examples of “environment of care” included equipment not mounted properly on the wall and cluttered treatment area resulting in patient falls. - Improper performance using therapeutic exercise had the highest total paid indemnity at $10,600,774. The total paid indemnity was driven by how often this allegation occurred. This allegation category accounts for 26.6 percent of the PT closed claims.

Severity of Allegations by Category Chart reflects closed claims with paid indemnity of ≥ $10,000 7

Percentage of Total paid Average paid Allegation category closed claims indemnity indemnity

Failure to properly test or treat 0.8% $1,893,805 $473,451

Improper management over the course of treatment 11.3% $6,459,346 $119,618

Environment of care 1.5% $636,792 $90,970

Failure to supervise or monitor 15.9% $6,508,342 $85,636

Improper performance using therapeutic exercise 26.6% $10,600,774 $83,471

Improper performance of manual therapy 14.0% $5,360,466 $80,007

Inappropriate behavior by PT 5.7% $1,537,018 $56,927

Equipment-related 6.7% $1,576,538 $49,267

Improper performance using a physical agent 17.4% $3,334,615 $40,176

Overall 100 .0% $37,907,696 $79,471

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 13 Figures 8 through 14 examine in detail the categories of allegations that accounted for 5 percent or more of all the PT closed claims . They are organized from highest to lowest average paid indemnity, as listed in Figure 7 . The percentages are based on the number of claims for the specific category .

Allegations Related to Improper Management Over the Course of Treatment - This allegation category produced the following findings: - The average paid indemnity of $119,618 for closed claims was 50 percent higher than the average paid indemnity of $79,471 for all PT closed claims. - Failure to report changes in the patient’s condition to the referring practitioner represented the highest average paid indemnity . - Failure to cease treatment when the patient experienced excessive/unexpected pain constituted the highest total paid indemnity . - Example of improper management of a surgical patient: A middle-aged man had undergone a hip arthroscopy and was referred for physical therapy by his surgeon. The patient canceled several ses- sions for vague reasons, and did not return to continue therapy. He reported to his surgeon that the PT had placed him prone, flexed his knee and extended his hip. The patient and surgeon alleged that, as a result of this therapy, the patient’s hip was dislocated, requiring additional surgery. The claim was settled for over $200,000.

Severity by Allegations Related to Improper Management over the Course of Treatment 8 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Failure to report patient’s condition to referring practitioner 9.3% $1,397,125 $279,425

Failure to cease treatment with excessive/unexpected pain 29.6% $2,649,500 $165,594

Improper management of surgical patient 16.7% $962,721 $106,969

Failure to follow referring practitioner orders 20.4% $804,500 $73,136

Failure to complete proper patient assessment 14.8% $440,500 $55,063

Injury during training for assistive devices or equipment 5.6% $140,000 $46,667

Failure to refer/seek consultation 3.7% $65,000 $32,500

Overall 100 .0% $6,459,346 $119,618

PART14 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Allegations Related to Failure to Monitor or Supervise - Failure to supervise or monitor other providers during patient care had the highest average paid indemnity in this allegation category. - Failure to monitor the patient during treatment had the highest total paid indemnity . - Example of failure to monitor or supervise: A female patient had nearly completed her course of treatment with the PT for therapy to her strained left quadriceps. In preparation for her continuing home-exercise program, she was asked to perform a leg stretch that involved putting her leg on the table. The PT was standing directly in front of the patient, but was unable to catch her when she lost balance and fell to the floor. She suffered a fractured femur requiring surgical insertion of a femoral rod. The claim was settled in excess of $350,000.

Severity by Allegations Related to Failure to Monitor or Supervise Chart reflects closed claims with paid indemnity of ≥ $10,000 9

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Failure to monitor or supervise other providers 9.2% $688,750 $98,393

Failure to monitor patient during treatment 85.5% $5,733,592 $88,209

Failure to maintain proper infection control 1.3% $27,500 $27,500

Failure to respond to patient 2.6% $40,500 $20,250

Failure to supervise patient assessment 1.3% $18,000 $18,000

Overall 100 .0% $6,508,342 $85,636

Physical Therapy Closed Claim Scenario: Failure to Properly Monitor or Supervise A 45-year-old patient was referred to physical therapy formed cardiopulmonary resuscitation. It was determined with a history of traumatic brain injury, limited use of his that he had been submerged for several minutes before extremities, and contractures of his left elbow and shoulder. the physical therapy aide rescued him. Therapy was prescribed due to his decreased ability to perform activities of daily living, decreased range of motion The patient eventually began breathing on his own and and reduced functional mobility. The patient attended was transferred to a hospital by ambulance. Acute hospi- aquatic therapy twice a week, during which time his phys- talization lasted approximately one month, while he was ical therapist would typically work with him one-on-one treated for adult respiratory distress syndrome and aspira- in the pool. The patient was occasionally permitted to walk tion pneumonia. Following hospitalization, the patient on his own alongside the pool while holding the handrail. was admitted to a rehabilitation facility, where he required high levels of oxygen until his discharge. The patient At the time of the incident, the patient was unattended in suffered permanent lung damage and functions at approx- the pool, but a lifeguard was on duty and the patient was imately 50 percent of normal lung capacity. He resides in wearing a flotation device around his chest attached to an assisted living facility, due to the level of care required a lead rope. The physical therapist was assisting another on a daily basis. The patient and his wife sued the insured client when the physical therapy aide noticed the patient PT and the owners of the pool, alleging negligence of a was completely submerged. The physical therapy aide dependent adult and failure to monitor the patient during immediately pulled the patient out of the water and per- treatment. The claim was settled in the high six-figure range.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 15 Allegations Related to Improper Performance Using Therapeutic Exercise - As noted in Figure 7, improper performance using therapeutic exercise was the category with the highest total paid indemnity . - Injury during gait or stair training accounted for the highest average paid indemnity . - Improper technique reflected the highest total paid indemnity and the highest percentage of closed claims. - Examples of claims that alleged improper performance using therapeutic exercise: - A patient with a history of balance issues performed an exercise that required her to stand on one leg without being supported or braced while moving the alternate leg over an object. - Patients suffered injuries resulting from exercises that were too advanced or aggressive, based upon their medical history. - A PT conducting a functional capacity exam (FCE) required a male patient with an injured arm and a pre-existing neck injury to lift a weight that was heavier than the lifting require- ment for the patient’s job. The patient was later diagnosed with cervical herniation and underwent spinal fusion surgery. The claim settled for an amount in excess of $200,000.

Severity by Allegations Related to Improper Performance Using Therapeutic Exercise 10 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Injury during gait or stair training 12.6% $2,296,500 $143,531

Improper positioning 3.1% $367,500 $91,875

Injury from restrictive or elastic bandage/support/brace 0.8% $90,000 $90,000

Improper technique 35.4% $3,998,564 $88,857

Injury during active resistance or assistive range of motion exercises 15.0% $1,424,859 $74,993

Injury during endurance activities 12.6% $1,046,464 $65,404

Injury during resistance exercise or stretching 17.3% $1,248,387 $56,745

Injury during aquatic exercise/therapy 3.1% $128,500 $32,125

Overall 100 .0% $10,600,774 $83,471

PART16 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Physical Therapy Closed Claim Scenario: Improper Performance Using Therapeutic Exercise A 9-year-old child with cerebral palsy, who had undergone in the back of his right knee. He was diagnosed with a extensive surgery for correction of bilateral ankle contrac- non-displaced fracture of the right tibia and placed into tures, was referred for physical therapy following removal an over-the-knee cast of the right leg. The physical thera- of the casts from both of his legs. In addition to his surgery, pist expert review was positive regarding the choice of the patient had a history of balance problems, as well as exercise and confirmed that the exercise did not require pain and weakness on his right side. The patient was well- two persons. However, the expert noted that, in view of known to the therapist, who had provided his care prior the patient’s history of right-sided weakness and pain, to surgery. The patient was correctly placed in bilateral the physical therapist could have anticipated that if the orthotics that maintained the proper position of his ankles patient were to fall, it would be to the right. Therefore, during his treatment. The physical therapist positioned the therapist would have been better positioned to the the patient on a therapy ball placed against the wall, with patient’s right during the exercise. The orthopedic expert chairs on both sides for added stabilization. The patient opined that the orthotic acted as the fulcrum point of the held the therapy ball handle with his left hand, and with fracture and that the fall was the cause of the injury. The his right hand tossed objects into a basket as instructed orthopedic expert did not believe the fracture would lead by the therapist. The physical therapist remained with the to permanent injuries or joint deformity, and the fracture patient continuously, standing on his left side during the healed successfully. Given the facts of the case and the exercise. The patient suddenly slipped to his right and was very sympathetic presentation of the child, the decision momentarily unable to reach out to the chair to stabilize was made to attempt to settle the claim. The settlement himself. The physical therapist reached him and eased him was in the low six-figure range. to the floor. The patient immediately complained of pain

Allegations Related to Improper Performance of Manual Therapy - Injury during passive range of motion had the highest average paid indemnity in this category. - Example of improper performance of manual therapy: The PT was treating a patient for lumbar arthritis and chronic sciatica by performing a piriformis stretch, which required the patient to lie on her back while the PT drew the knee upward toward the opposite shoulder. The patient had undergone right total hip replacement surgery approximately six years prior to this incident. She had a history of possible right hip instability and reported difficulty getting on and off the toilet due to right hip pain. During the exercise, the patient reported that she felt a sudden pain and experienced a “pop” in her right hip. Although the PT did not hear or feel a pop, the patient was unable to move her hip and could not sit or transfer immediately after the treatment. The patient was transferred to the hospital where she underwent a repeat right hip replacement. The claim was settled in excess of $150,000.

Severity by Allegations Related to Improper Performance of Manual Therapy Chart reflects closed claims with paid indemnity of ≥ $10,000 11

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Injury during passive range of motion 13.4% $783,000 $87,000

Injury during manual therapy - improper technique 67.2% $3,604,000 $80,089

Injury during traction 10.4% $529,125 $75,589

Injury during connective tissue manual therapy or massage 9.0% $444,341 $74,057

Overall 100 .0% $5,360,466 $80,007

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 17 Allegations Related to Inappropriate Beha vior by Physical Therapist - Failure to follow organizational policy represented the highest average paid indemnity . - Abuse or misconduct by the PT reflected the highest total paid indemnity and the highest percentage of inappropriate behavior claims. - Closed claims relating to a PT’s failure to notify the referring practitioner of the modified treatment plan involved the provision of services to patients that went beyond or differed from what the referring practitioner had prescribed. The following examples illustrate this type of allegation: - The referring practitioner ordered therapy only to the patient’s cervical spinal area, but the PT provided treatment to the cervical and lumbar spine areas without discussing this additional therapy with the referring practitioner. The PT persisted despite the patient’s complaints of severe lower back pain. The patient suffered lower back injuries requiring hospitalization and extensive rehabilitation. - The PT received an order to treat a patient’s fractured wrist twice a week for six weeks. However, the PT continued the therapy for several months without discussing the treatment with the referring practitioner. The patient suffered a permanent 40 percent loss of mobility in the treated wrist. - The referring practitioner ordered specific treatment modalities to the patient’s ankle following surgery that involved insertion of hardware. The PT added several modalities – including electrical stimulation – without discussing them with the referring practitioner. These additional treatments resulted in severe burns, which required significant additional treatment. - Allegations related to inappropriate behavior by the PT represented 5.7 percent of all PT closed claims in the analysis, as shown in Figure 7.

Severity by Allegations Related to Inappropriate Behavior by Physical Therapist 12 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Failure to follow organizational policy 11.1% $205,000 $68,333

Failure to notify referring practitioner of modified treatment plan 18.5% $296,019 $59,204

Physical, sexual, emotional abuse and/or misconduct 70.4% $1,035,999 $54,526

Overall 100 .0% $1,537,018 $56,927

PART18 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Allegations Related to Equipment - The average paid indemnity for allegations relating to equipment was lower than the overall average for all closed claims. - Equipment malfunction or failure had the highest percentage of closed claims, the highest total paid indemnity and the highest average paid indemnity in this category.

Severity by Allegations Related to Equipment Chart reflects closed claims with paid indemnity of ≥ $10,000 13

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Equipment malfunction or failure 53.1% $892,039 $52,473

Improper use of equipment 34.4% $568,499 $51,682

Failure to properly test equipment 6.3% $85,000 $42,500

Improper maintenance of equipment 6.3% $31,000 $15,500

Overall 100 .0% $1,576,538 $49,267

Allegations Related to Improper Use of a Physical Agent - The term “physical agent” is defined by the American Physical Therapy Association’s Guide to Physical Therapist Practice (Second Edition, 2001) as “various forms of energy that are applied to tissues in a systematic manner and that are intended to [promote healing and/or improve the patient’s condition].” - The average paid indemnity of $40,176 for this category was significantly less than the average paid indemnity of $79,471 for all PT closed claims in the analysis. - Average paid indemnity for claims related to the use of heat therapy or hot packs was more than twice the average paid indemnity for claims related to the use of cold packs/ice massage.

Severity by Allegations Related to Improper Use of a Physical Agent Chart reflects closed claims with paid indemnity of ≥ $10,000 14

Percentage of Total paid Average paid Allegation closed claims indemnity indemnity

Injury during heat therapy or hot packs 61.4% $2,564,167 $50,278

Injury during electrotherapy 32.5% $651,948 $24,146

Injury from cold packs/ice massage 6.0% $118,500 $23,700

Overall 100 .0% $3,334,615 $40,176

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 19 Physical Therapy Closed Claim Scenario: Improper Use of a Physical Agent A 25-year-old male was referred to physical therapy with The patient pursued a claim for pain and suffering, lost a history of diabetic neuropathy of his lower extremities. wages and lack of informed consent. The claim was difficult The patient had been undergoing heat therapy and par- to defend, due to the absence of the physical therapist’s affin baths at the PT office practice for approximately one initial evaluation. In addition, documentation failed to month when he suffered a burn to his foot. The burn demonstrate whether the physical therapist assistant – who resulted in an infection, which led to gangrene and necrosis was acting under the supervision of the physical therapist of the second toe. The patient underwent several surgical – had followed diabetic foot precautions. The claim was procedures, including insertion of a central catheter for settled in the low six-figure range. the administration of antibiotics, debridements, skin graft, amputation of the right second toe, incision and drainage of a wound, resection of the right second metatarsal and a right posterior tibial common plantar artery bypass with vein graft.

Analysis of Severity by Injury - Paralysis, physical assault, herniated disc and death reflected the highest average paid indemnity . - Fractures reflected the highest percentage of injuries and total paid indemnity . The apparent causes of fractures were patient falls, improper use of equipment, unanticipated equipment failures, slips and trips that occurred during ambulation, improperly performed treatment, improper patient assessment, and failure to provide monitoring or supervision. The risk of fracture may be higher for patients who were more debilitated, suffered from chronic illness or failed to follow directions of the PT. - Burns followed by increase or exacerbation of injury/symptoms also accounted for a high percentage of injuries. - Burns were primarily associated with allegations of improper performance using a physical agent. However, there were also claims with allegations related to equipment and a low number of claims with five other categories of allegations. Therefore, the percentage of closed claims with the injury “burns” is greater than the percentage of closed claims with the allegation “improper performance using a physical agent” (see also Figure 7). - Herniated disc was the only injury that had an average paid indemnity exceeding $175,000 while also accounting for more than 5 percent of the PT closed claims. - In two claims, paralysis allegedly was related to the PT’s failure to report the patient’s condition. - Delay in recovery resulted from the PT failing to order equipment needed to follow the physician’s orders while providing therapy in the patient’s home.

PART20 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Severity by Injury Chart reflects closed claims with paid indemnity of ≥ $10,000 15

Percentage of Total paid Average paid Injury closed claims indemnity indemnity

Paralysis 0.6% $1,230,000 $410,000

Physical injury resulting from abuse/assault 0.4% $401,000 $200,500

Herniated disc 5.5% $4,653,304 $178,973

Death 0.9% $632,125 $158,031

Traumatic brain injury 1.0% $640,288 $128,058

Loss of organ or organ function including hearing and sight 1.0% $544,000 $108,800

Increase or exacerbation of injury/symptoms 17.8% $7,611,980 $89,553

Fracture 26.4% $11,055,822 $87,745

Dislocation 2.3% $925,250 $84,114

Neurological - peripheral and all other 0.6% $247,500 $82,500

Muscle/ligament damage 9.0% $3,255,236 $75,703

Amputation 1.0% $344,492 $68,898

Infection/abscess/sepsis 0.9% $272,500 $68,125

Loss of use of limb 3.1% $1,009,000 $67,267

Bleeding/hemorrhage 0.2% $50,000 $50,000

Burn 20.1% $3,856,134 $40,168

Delay in recovery 0.2% $40,000 $40,000

Emotional distress resulting from sexual abuse/assault 3.6% $634,999 $37,353

Compartment syndrome 0.2% $35,000 $35,000

Sprain/strain 1.9% $222,000 $24,667

Cracked/broken tooth 0.9% $76,175 $19,044

Abrasion/irritation/laceration 1.3% $98,391 $16,399

Bruise or contusion 0.9% $62,500 $15,625

Cardiovascular injury 0.2% $10,000 $10,000

Overall 100 .0% $37,907,696 $79,471

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 21 Comparison of Re-injury Versus Other Injuries The data were analyzed to determine the prevalence of re-injury during physical therapy. For the purposes of this analysis, a claim was classified as a “re-injury” if the condition or body part for which the patient was seeking physical therapy was harmed again during the therapy session. An example of “re-injury” would be a patient seeking therapy subsequent to rotator cuff surgery, whose same rotator cuff was injured during therapy. - It was determined that 22.2 percent of the PT closed claims involved a re-injury. - The financial impact was significantly higher when the claim involved a re-injury. - The average paid indemnity for re-injury closed claims was $126,200, which is almost twice the average paid indemnity for other injuries ($66,120) and almost 60 percent higher than the overall average paid indemnity of $79,471.

Comparison of Re-injury Versus Other Injuries 16 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Re-injury/Injury closed claims indemnity indemnity

Re-injury 22.2% $13,377,207 $126,200

Injury (other than re-injury) 77.8% $24,530,489 $66,120

Overall 100 .0% $37,907,696 $79,471

The average paid indemnity for re-injury closed claims was $126,200, which is almost twice the average paid indemnity for other injuries ($66,120) and almost 60 percent higher than the overall average paid indemnity of $79,471.

PART22 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Analysis of Severity by Re-injur y - A claim that involved re-injury of the spine resulting in paralysis had the highest paid indemnity. - Herniated disc, physical abuse/assault, muscle/ligament damage, and increase or exacerbation of the patient’s injury or symptoms were associated with an average paid indemnity higher than the overall average paid indemnity for PT closed claims.

Severity by Re-injury Chart reflects closed claims with paid indemnity of ≥ $10,000 17

Percent of re-injury Total paid Average paid Re-injury closed claims indemnity indemnity

Paralysis 0.9% $1,000,000 $1,000,000

Herniated disc 7.5% $2,758,000 $344,750

Physical injury resulting from abuse/assault 1.9% $401,000 $200,500

Muscle/ligament damage 12.3% $1,664,166 $128,013

Increase or exacerbation of injury/symptom 74.5% $7,402,941 $93,708

Fracture 1.9% $111,600 $55,800

Sprain/strain 0.9% $39,500 $39,500

Overall 100 .0% $13,377,207 $126,200

Analysis of Re-injury by Affected Body Part - Re-injury of the lower back had significant average paid indemnity and total paid indemnity . - Re-injury of the shoulder, including rotator cuff injury, had lower average paid indemnity than lower back injury, but represented the highest percentage of re-injury closed claims. - The three most severe re-injuries each had a low percentage of re-injury closed claims.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 23 Severity of Re-injuries by Affected Body Part 18 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percent of re-injury Total paid Average paid Body part closed claims indemnity indemnity

Nerve 0.9% $1,000,000 $1,000,000

Disc (thoracic) 0.9% $385,000 $385,000

Upper back 0.9% $285,000 $285,000

Lower back 21.7% $4,847,973 $210,781

Disc (lumbar) 2.9% $510,000 $170,000

Knee 18.9% $2,580,156 $129,008

Neck 2.9% $310,000 $103,333

Toe 0.9% $100,000 $100,000

Hand 0.9% $85,000 $85,000

Upper leg 2.9% $240,000 $80,000

Shoulder 34.0% $2,431,478 $67,541

Hip 2.9% $202,000 $67,333

Ankle 0.9% $65,000 $65,000

Wrist 1.9% $120,000 $60,000

Finger 0.9% $45,000 $45,000

Arm 1.9% $61,500 $30,750

Foot 1.9% $56,600 $28,300

Abdomen 0.9% $27,500 $27,500

Pelvis 0.9% $25,000 $25,000

Overall 100 .0% $13,377,207 $126,200

Allegations Related to Re-injur y - Examples of claims with the highest average paid indemnity: - A PT allegedly failed to identify a thoracic fracture. The allegation was related to the PT’s failure to continue to communicate with the referring physician until the physician responded. - Two abandonment-related claims involved PTs leaving the building during treatment without notifying staff, and forgetting about the patient. - Improper technique represented the highest total paid indemnity and highest percentage of the re-injury closed claims.

PART24 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Severity by Allegations Related to Re-injury Chart reflects closed claims with paid indemnity of ≥ $10,000 19

Percent of re-injury Total paid Average paid Allegation closed claims indemnity indemnity

Failure to report patient’s condition to referring practitioner 0.9% $1,000,000 $1,000,000

Abandonment 2.0% $1,631,305 $815,653

Injury during gait or stair training 2.0% $1,135,000 $567,500

Improper performance of test 0.9% $250,000 $250,000

Failure to cease treatment with excessive/unexpected pain 7.5% $2,000,000 $250,000

Physical, sexual, emotional abuse and/or misconduct 2.0% $401,000 $200,500

Failure to complete proper patient assessment 2.0% $322,500 $161,250

Injury during manual therapy - improper technique 13.2% $1,687,500 $120,536

Improper technique 18.9% $2,223,166 $111,158

Failure to follow organizational policy 2.0% $185,000 $92,500

Injury from restrictive or elastic bandage/support/brace 0.9% $90,000 $90,000

Injury during traction 0.9% $78,000 $78,000

Failure to properly test equipment 0.9% $70,000 $70,000

Failure to supervise physical therapist assistant/aide 0.9% $70,000 $70,000

Failure to follow referring practitioner orders 6.6% $462,000 $66,000

Injury during training for assistive devices or equipment 0.9% $65,000 $65,000

Failure to monitor patient during treatment 3.8% $257,198 $64,300

Improper management of surgical patient 2.8% $165,000 $55,000

Failure to provide safe environment 0.9% $55,000 $55,000

Injury during active resistance or assistive range of motion exercises 7.5% $413,412 $51,677

Injury during aquatic exercise/therapy 0.9% $49,500 $49,500

Injury during endurance activities 5.7% $249,375 $41,563

Injury during resistance exercise or stretching 9.4% $357,251 $35,725

Failure to notify referring practitioner of modified treatment plan 2.0% $57,500 $28,750

Failure to refer/seek consultation 0.9% $27,500 $27,500

Equipment malfunction or failure 2.8% $62,500 $20,833

Unnecessary treatment 0.9% $12,500 $12,500

Overall 100 .0% $13,377,207 $126,200

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 25 Analysis of Claims Related to Burns

Severity by Intensity of Burn 20 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Intensity of burn closed claims indemnity indemnity

Severe: requires any type of surgery 63.5% $2,419,634 $39,666

Moderate: requires more treatment than “mild” burn but no surgery 31.3% $1,298,000 $43,267

Mild: requires only local treatment/comfort care 5.2% $138,500 $27,700

Overall 100 .0% $3,856,134 $40,168

Analysis of Severity Related to Burns by Body P art - Burns to the hip accounted for the highest average paid indemnity for closed claims related to burns. - Burns to the lower extremities accounted for both the highest total paid indemnity and the highest percentage of the closed claims related to burns. - A recurring theme in this category of closed claims was failure to properly monitor the patient during use of hot packs.

Severity of Burns by Body Part 21 Chart reflects closed claims with paid indemnity of ≥ $10,000

Percentage of Total paid Average paid Body part closed claims indemnity indemnity

Hip 3.1% $547,500 $182,500

Upper extremity 24.0% $872,448 $37,933

Lower extremity 50.0% $1,812,186 $37,754

Upper back/neck 4.2% $138,500 $34,625

Lower back 15.6% $416,500 $27,767

Face 1.0% $26,000 $26,000

Trunk 2.1% $43,000 $21,500

Overall 100 .0% $3,856,134 $40,168

PART26 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 ANALYSIS of Severity by Disability - The cost of providing immediate and future medical care, as well as compensation for economic and non-economic losses related to the injury, contributed to a higher average paid indemnity for permanent total disability. - Permanent partial disability had the highest total paid indemnity, representing 24.5 percent of closed claims. - Deaths related to care provided by physical therapists are rare, but they represented the second- highest average paid indemnity . Deaths were the result of cardiac arrest, traumatic brain injury and a post-operative cervical epidural abscess.

Severity by Disability Chart reflects closed claims with paid indemnity of ≥ $10,000 22

Percentage of Total paid Average paid Disability closed claims indemnity indemnity

Permanent total disability from injury/illness 2.3% $3,242,195 $294,745

Death 0.8% $632,125 $158,031

Permanent partial disability from injury/illness 24.5% $14,737,208 $125,959

Temporary total disability from injury/illness 13.2% $5,533,548 $87,834

Temporary partial disability from injury/illness 59.1% $13,762,620 $48,804

Overall 100 .0% $37,907,696 $79,471

Deaths related to care provided by physical therapists are rare, but they represented the second-highest average paid indemnity. Deaths were the result of cardiac arrest, traumatic brain injury and a post- operative cervical epidural abscess.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 27 Summary Analysis of Physical Therapist Assistant Closed Claims Figures 23 and 24 include both individually insured PTAs and PTA employees of PT practices.

Severity by Allegation - The average paid indemnity for PTA and PT closed claims was similar. The associated medical costs and economic losses were similar, regardless of who was involved in the patient’s care. - Improper use of equipment represented the highest average paid indemnity in PTA closed claims. The patient sustained a back injury allegedly resulting from the PTA’s failure to properly use equipment. There was no documentation to support the appropriateness of the PTA’s care. - Failure to monitor the patient during treatment accounted for the highest percentage of PTA claims. - Common themes in these claims included failure to take responsibility for the patient’s care, lack of communication with the healthcare team, improper assessment, failure to follow practitioner orders and improper monitoring of patients during treatment.

Severity by Allegation Related to Physical Therapist Assistants 23 Chart reflects PTA closed claims with paid indemnity of ≥ $10,000

Percentage of PTA closed Total paid Average paid Allegation claims indemnity indemnity

Improper use of equipment 2.0% $650,000 $650,000

Failure to report patient’s condition to referring practitioner 2.0% $525,000 $262,500

Failure to complete proper patient assessment 4.1% $175,000 $175,000

Failure to follow practitioner orders 2.0% $427,500 $106,875

Improper positioning 8.2% $90,000 $90,000

Equipment malfunction or failure 2.0% $177,500 $88,750

Injury during manual therapy - improper technique 4.1% $243,335 $81,112

Injury during heat therapy or hot packs 6.2% $394,500 $65,750

Improper management of surgical patient 12.3% $55,000 $55,000

Injury during gait or stair training 2.0% $92,000 $46,000

Injury during resistance exercise or stretching 4.1% $45,000 $45,000

Failure to monitor patient during treatment 2.0% $403,006 $40,301

Failure to provide safe environment 20.5% $35,000 $35,000

PTA functioning outside accepted scope of practice 2.0% $158,689 $31,738

Improper technique 10.2% $155,937 $31,187

Injury during passive range of motion 10.2% $30,000 $30,000

Failure to cease treatment with excessive/unexpected pain 2.0% $25,000 $25,000

Injury during active resistance or assistive range of motion exercises 2.0% $16,653 $16,653

Injury during electrotherapy 2.0% $15,000 $15,000

Overall 100 .0% $3,714,120 $75,798

PART28 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 PTA and PT Closed Claims: Comparison of Top Three Elements by Severity - Locations with the highest average paid indemnity differed for PTA and PT closed claims. - Improper management over the course of treatment (e.g., failure to report patient’s condition to the referring practitioner or failure to refer/seek consultation) was one of the top three allegations with the highest average paid indemnity for both PTAs and PTs. The other allegations differed. - Injuries with the highest average paid indemnity differed for PTA and PT closed claims, with the exception of herniated disc. - Causes of death with the highest average paid indemnity differed for PTAs and PTs.

PTA and PT Claim Comparison of Top Three Elements by Severity Chart reflects closed claims with paid indemnity of ≥ $10,000 24

Topic PTA PT

Percent of claims 9.3% 90.7%

Average paid indemnity $75,798 $79,471

■ Physical therapy office/clinic - non-hospital ■ Hospital inpatient physical therapy area

Location ■ Aging services facility ■ Fitness center

■ Acute medical-surgical hospital inpatient ■ Aging services facility

■ Improper use of equipment ■ Failure to test/treat

■ Improper management over the course of ■ Improper management over the course of Allegations treatment treatment

■ Improper performance of manual therapy ■ Environment of care

■ Herniated disc ■ Paralysis

Injury ■ Death ■ Physical injury resulting from abuse/assault

■ Muscle/ligament damage ■ Herniated disc

■ Cardiopulmonary arrest ■ Paralysis

Cause of death ■ Burns ■ Traumatic brain injury

■ Pneumonia/respiratory infection ■ Cardiopulmonary arrest

■ Death ■ Permanent total disability

Disability ■ Permanent partial disability ■ Death

■ Permanent total disability ■ Permanent partial disability

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 29 Physical Therapy Closed Claim: Alleged Improper Care (a Success Story) A 65-year-old male was referred to physical therapy for The defense expert supported the care provided by the treatment of work-related injuries that resulted in pain PT as being within the standard of care. The expert further between his shoulder blades radiating to his lower back, noted that the PT’s documentation was complete and numbness and tingling of both arms and left leg, and appropriate, confirming the PT’s testimony and providing muscle spasms radiating from the spine. MRI had con- a solid basis for defending the claim. firmed degenerative lumbar disc disease and possible herniated thoracic discs. The physical therapy treatment The plaintiff’s orthopedic surgeon testified only that the plan included joint mobilization, electrical stimulation, patient’s shoulder surgery interrupted his back treatment. aquatic and therapeutic exercises, posture exercises and The patient’s neurosurgeon refused to attend his deposi- ultrasound therapy. The PT discussed the plan of care, tion and legal counsel was unable to secure a PT expert including joint mobilization, with the patient, who provided witness to support the patient’s allegations. his written consent. Five therapy treatments were com- No indemnity payment was offered and the court issued pleted, with joint mobilization performed only on the fifth a summary judgment dismissing the action against the visit. The patient offered no complaint at any time and insured PT. Significant legal and related expenses were admitted to feeling better at the time of his final treatment. paid to successfully defend this claim. While settlement The PT received a letter of legal representation alleging may have been less costly, the PT’s appropriate treatment that during joint mobilization, the PT had forcefully and and careful documentation led to an aggressive and suc- repeatedly bent the patient’s arms and shoulders, despite cessful defense of the claim. his complaints of intense pain resulting in a torn rotator cuff. The patient also alleged interruption of his back therapy to attend to his shoulder, including two surgeries and a referral to a neurosurgeon.

While settlement may have been less costly, the PT’s appropriate treatment and careful documentation led to an aggressive and successful defense of the claim.

PART30 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Risk Control Recommendations While rare events may be difficult to foresee, analysis of the PT closed claims data suggests that many errors are both predictable and preventable. In order to protect patients and minimize liability, it is necessary to ensure that services meet established standards of care and that documentation practices are thorough and consistent. The following strategies can help both individual therapists and practices enhance safety while minimizing risk:

Communicate effectively with patients, families and colleagues . The following measures can help strengthen key relationships: - Consider the best method and form of communication, e.g., written versus spoken, words versus pictures, in person versus by telephone. - Utilize translation/interpreter services when necessary, following organizational guidelines. - Obtain the patient’s permission before sharing information with family members or significant others. - Request that the patient and family members repeat back key information. - Encourage questions from and open discussion with patients and family members. - Recognize nonverbal cues from the patient, such as grimacing or flinching, as well as physical distress signs, such as pallor or diaphoresis. - Notify the appropriate practitioner(s) and healthcare team members of the patient’s clinical responses to therapy, and swiftly convey any signs or symptoms of physiological or psychological changes that could indicate a new pathological condition or a change in an existing condition. - Actively solicit feedback from the patient, and document the patient’s statements in the health information record. - Employ effective handoff communication techniques whenever the therapist of record transfers the care of the patient to another therapist or provider. - Actively involve the patient, family and/or caregiver in setting goals for therapy.

Delegate patient therapy services only to the appropriate level of staff and provide appropriate supervision for all delegated patient services . - It may be acceptable to delegate certain patient services to licensed/certified therapy personnel in accordance with the state scope of practice for each level of staff. - Delegate only those services that can be legally and safely provided by another level of staff and only when the patient is stable and his/her ability to tolerate the service is known to the physical therapist. - Never leave the therapy area when the patient is receiving services from another level of staff. - Periodically assess the staff member’s technique and the patient’s response to the delegated service throughout the session, and document supervisory findings. - Cease the delegated services and directly evaluate the patient in the event of patient complaints of unanticipated pain, fatigue, or other signs and symptoms that demand the physical therapist’s direct attention.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 31 Adopt an informed consent process that includes discussion and teach-back from the patient, and demonstrates that the patient understands the risks associated with treatment . Before engaging in treatments or interventions, the PT must obtain the patient’s informed consent, with all discussions carefully documented. At a minimum, informed consent discussions should include - known risks and benefits of the treatment plan, alternative treatment options and the likely consequences of declining the suggested therapy - disclosure of clinically indicated touching and/or potential discomfort during treatment - answers to patient and family questions - repetition of important information by the patient to ensure understanding - written confirmation that the patient agrees to the proposed treatment - provision of pertinent patient education materials and corresponding documentation

Ensure that clinical documentation practices comply with the standards promulgated by physical therapy professional associations, state practice acts and facility protocols . The importance of complete, appropriate, timely, legible and accurate documentation cannot be over- stated, whether records are in electronic or handwritten form. At a minimum, records should include - date, time and signature for each entry - patient complaints, statements and ongoing concerns related to the treatment plan, such as progress and pain levels - findings of initial and ongoing patient assessments - results of diagnostic procedures - patient responses to therapy - discussions regarding diagnosis, treatment options and expected outcomes with the patient, family and healthcare team members - patient education and discharge instructions, including assessment of the patient’s ability to demonstrate self-care and correctly repeat instructions - objective facts related to any patient accident, injury or adverse outcome

Avoid documentation errors that may weaken legal defense efforts in the event of litigation . The following documentation missteps can seriously compromise defensibility: - Refrain from documenting subjective opinions or conclusions, as well as making any derogatory statement about patients or other providers in the record. - Never remove any page or section from a health information record or alter a written or electronic medical record. - If it is necessary to correct documentation errors or make a late entry, ensure that alterations conform to organizational policies and procedures. - Contact your manager, risk manager or legal counsel for assistance with documentation concerns or questions related to regulatory compliance or potential liability.

PART32 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Maintain clinical competencies specific to the relevant patient population . If the practice does not offer continuing education opportunities, contact the appropriate regulatory agency or professional association to obtain information about classes, seminars and resources necessary to maintain competencies.

Be vigilant about protecting patients from the most common types of injuries . Our analysis of closed claims indicates that re-injuries, burns and fractures should be a serious concern for all physical therapists and practices. The following guidelines can help minimize liability and increase defensibility in case of an adverse occurrence: - Re-injuries - Adhere to organizational treatment protocols when available. If protocols are not available, refer to the applicable state practice act and professional organization guidelines, such as those of the American Physical Therapy Association. - Review published evidence-based best practices. - Cease treatment immediately if there are complaints of unexpected, sudden and/or severe pain, swelling or discoloration. - Arrange emergency transportation to the nearest emergency room following any suspected injury. - Determine the level of patient compliance with any prescribed exercise program. - Discuss suspected noncompliance with the patient, emphasizing that it presents a risk of injury. Notify the referring practitioner of any noncompliance, and document both the notification and the practitioner’s response. - Routinely monitor and document vital signs. - Burns - Be aware of the high risk of burns from certain commonly used treatments and interventions, such as whirlpool therapy, hot packs, paraffin, cold/ice packs and electrotherapy. Ensure that each of these treatments is clinically appropriate and that there are no clinical contraindications for their use. - Evaluate and document each patient’s skin integrity, neurological status, and ability to perceive pain or discomfort, and convey problems to staff. Evaluation should be performed prior to the course of treatment and periodically thereafter. - Closely supervise and/or monitor patients during treatment, including frequent skin checks. - Discuss any perceived alterations in skin integrity with the referring practitioner and healthcare team. - Routinely test, monitor and log temperatures of whirlpool water, hot-pack warmers, paraffin tanks and other equipment in accordance with organizational policies.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 33 - Fractures - Maintain a safe environment of care with dry, level and unobstructed walkways and therapy spaces. - Assess patients initially and periodically thereafter for fall and fracture risk in light of underlying medical conditions. - Evaluate patients’ ability to use equipment in a safe manner and participate in physical therapy treatments. - Respond immediately to any signs or symptoms of a possible fracture by determining the need for additional medical evaluation and obtaining emergency medical services as needed. - Observe high-risk patients closely to prevent falls and/or fractures, and never leave them unattended. - Utilize appropriate safety devices, such as gait belts, floor and treatment table pads, and equipment alarms. - Conduct and document regular equipment maintenance and check equipment for proper functioning before each patient use. Immediately remove and sequester any equipment that has malfunctioned or that does not meet safety standards. - Always ensure that patients are correctly and securely positioned on treatment tables or equipment. - Train staff and patients in the proper use of equipment and require an initial demonstration of competency to avoid injury. - Educate patients regarding the appropriate clothing and footwear that should be worn during treatment/intervention, and do not permit use of equipment without proper apparel and shoes.

Recognize patients’ medical conditions, co-morbidities and any additional specific risk factors that may affect therapy . Examples of pre-existing conditions include - de-conditioning following extended hospitalization or recent surgery - osteopenia and osteoporosis - cardiac problems - coagulation disorders requiring anticoagulant therapy - diabetes - pulmonary disease - neurological impairments, dementia or behavioral health issues - sensory loss involving heat/cold sensitivity, hearing, vision, speech or proprioception - vestibular/balance disorders and fall risk - side effects of medications

PART34 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Treat patients with respect and compassion during their course of therapy . The following measures can help reduce conflict and maintain appropriate boundaries: - Warn patients of potential treatment-related discomfort. Assist the patient in recognizing the difference between discomfort and pain, and ensure that the patient understands the need to communicate about pain levels. - When needed or requested by the patient, have a second staff member present during treatments or procedures involving therapeutic touching. - Cease treatment/procedure immediately if the patient expresses emotional discomfort or states that the touching seems excessive, painful, abusive or inappropriate in any way. - Arrange for someone to stay with the patient if it is necessary to leave temporarily for any reason. - Do not discourage patients from asking questions, expressing their concerns, speaking with a super- visor or requesting another therapist. - Report any patient allegations immediately to a manager and the referring practitioner. - Prohibit inappropriate or questionable behavior between patients. - Refrain from developing relationships with patients or family members that may result in a conflict of interest. - If questions arise relating to professional behavior or ethics, refer to the resources provided by the American Physical Therapy Association at http://www .apta .org.

Monitor the environment of care to maximize patient safety, being careful to implement the following measures: - Secure entrances and exits. - Maintain unobstructed hallways and treatment areas. - Restrict access to areas where patient care is not provided. - Exercise and document preventive maintenance for all equipment, per manufacturer guidelines. - Inspect and/or test equipment prior to patient use, removing any equipment that appears to be broken, unreliable or unsafe. - Regularly replace therabands and other equipment that is known to have a short life expectancy. - Ensure that equipment needed for each patient is readily available and checked before each use. - Sequester any equipment that is involved in patient injury.

Know and comply with state laws regarding scope of practice . PTs are responsible for knowing and understanding the regulations governing the practice of physical therapy in each state where they practice, as well as the policies and protocols of their employers and the organizations where they provide services. The following guidelines can help prevent scope of practice irregularities: - If regulatory requirements and scope of practice differ from organizational policies or expectations, comply with the most stringent of the applicable regulations or policies. - If a job description, contract, or set of policies and procedures appears to violate the state’s regulations, bring this discrepancy to the organization’s attention. If there is a discrepancy, contact your State Board of Physical Therapy and your state or national professional organization for clarification.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 35 Risk Control Self-assessment Checklist for Physical Therapists

Self-assessment criteria Yes No Actions needed to reduce risks

Scope of practice I refer to my state’s physical therapy practice act to ensure that I understand my legal scope of practice. If a job description, contract, or set of policies and procedures appears to violate my state’s laws and regulations, I bring this discrepancy to the organization’s attention and refuse to practice in violation of these laws and regulations. If necessary, I use the chain of command or the legal department regarding patient care or practice issues. If I am unsure about physical therapy scope of practice, I contact the state board and request an opinion or position statement.

I refer to the profession’s standards of practice and code of ethics.

Clinical specialty and competencies

I practice or work in an area that is consistent with my education and experience. My competencies (including experience, training, education and skills) are consistent with the needs of my patients. When I am asked to work with different patient populations (e.g., when I am providing coverage to a practice area), I ensure that my competencies and experience are appropriate for patients for whom I will be providing care or I refer the care to those more qualified. I receive an orientation or skills check-off whenever I am covering a different patient care area or specialty. I obtain continuing education and training to maintain and further my competence and professional development. I decline an assignment or request to treat a patient, or refer the patient to another therapist, if my competencies are not suited to the patient’s needs.

Communication with patients and families

I consider the best means of communication (e.g., written versus spoken, words versus pictures, in person versus by telephone) when interacting with practitioners, patients and family members. When transferring care to another therapist, I provide handoff communication to the receiving therapist and provide an avenue for questioning (e.g., telephone, pager, etc.). I follow organizational protocols for obtaining translation/interpreter services, when necessary. I follow organizational protocols and HIPAA regulations/requirements when communicating with patients or transmitting any protected health information via e-mail or social media platform. I obtain the patient’s written permission before sharing any protected health information with family members or significant others. I request that patient and family members repeat back or paraphrase important information or demonstrate specific home treatment programs to ensure comprehension. I recognize nonverbal cues from patients, such as grimacing, flinching, pallor or diaphoresis. I notify the appropriate practitioners and healthcare team members of the patient’s clinical responses to therapy, including any adverse events, an increase or unexpected change in symptoms, or a lack of progress. I assume responsibility for obtaining ongoing feedback from the patient and document patient statements relevant to care in the patient’s health information record.

PART36 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Self-assessment criteria Yes No Actions needed to reduce risks

Informed consent process

Before providing care to a patient, I initiate an informed consent process, which includes the following elements:

■ I discuss known risks and benefits, as well as alternatives to the recommended treatment plan.

■ I address anticipated consequences of declining the proposed treatment or intervention.

■ I explain the necessity of extensive touch whenever it is a component of the clinically indicated treatment and allow the patient to request a chaperone (an extra person in the room).

■ I respond to questions from patient and family until all are satisfied and have sufficient information to give or refuse consent.

■ I confirm that the patient can repeat back the information provided and agrees to or declines the recommended treatment.

■ I provide patient education materials when appropriate.

■ I document the communications and educational material provided in the patient’s record.

Specific clinical risks associated with the patient’s condition, general health and interventions

If the patient was referred by a healthcare professional, I contact the referring practitioner to answer any questions or provide clarification regarding the patient’s medical or post-surgical status, the requested treatment, signs and symptoms, or findings from the examination that raise concerns (red flags). I document the discussion and its outcome. I cease treatment immediately if a patient has an adverse response to treatment or another adverse event/emergency situation occurs. In this situation, I also swiftly contact the referring practitioner and document the event in the patient’s health information record. Any incident reports would be completed and not placed in the patient’s record. I initiate emergency procedures, activate the emergency medical system (EMS) if indicated and arrange emergency transportation for the patient to the nearest emergency department in case of fractures, other suspected injuries or medical/psychiatric emergencies. I assess the level of the patient’s compliance with agreed-upon goals and interventions.

I make an effort to prevent burns by taking the following steps:

■ I assess a patient’s risk for burns when making a decision about including certain treatment modalities in a patient’s plan of care.

■ I examine the skin both prior to and following any treatment that may pose a risk of burns.

■ I closely supervise support personnel and students who assist in providing assigned duties related to the patient. I respond to a decline in the patient’s condition or lack of expected improvement by taking the following actions:

■ I use objective measures to determine positive or negative changes in the patient’s condition.

■ I promptly report any negative changes or findings to the referring practitioner, if there is one.

■ I continue to contact the referring practitioner until I get a response that is appropriate to the patient’s change in condition or failure to improve.

■ I use the chain of command if the referring practitioner fails to respond promptly and appropriately to my findings.

■ If the patient’s condition worsens or does not improve, I refer the patient back to the referring practitioner or to a practitioner with appropriate expertise.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 37 Self-assessment criteria Yes No Actions needed to reduce risks

Delegating patient care

Before assigning patient care services to PTAs or physical therapy aides who assist me in patient care, I ensure that the assigned services are within their scope of practice or work. I never assign patient care or related responsibilities to an individual whose training and competencies do not meet the patient’s needs or practice act requirements. I always follow the organization’s policies and procedures and the standards of practice of my profession regarding assignment of patient care to PTAs or physical therapy aides. I maintain primary responsibility for my patients because I am the Therapist of Record (refer to APTA position). If I assign care to PTAs or physical therapy aides, I monitor my patient’s condition or a failure to respond positively to treatment. I monitor services provided by PTAs or physical therapy aides, supervising the treatment plan, progress and outcome. I ensure that PTAs or physical therapy aides document the care they provide to my patients and the patient’s response to treatment as indicated, based on the state practice act. I remain on the premises and readily available at all times when a PTA or physical therapy aide provides services to my patient, if required by the state practice act.

Professional conduct

I speak to patients, families and staff in a courteous and professional manner.

I am sensitive to and respectful of cultural differences in patients/families.

I refrain at all times from inappropriate interactions and/or personal relationships with patients and family members. I explain procedures and treatments to patients; describe any touching they can anticipate during the assessment, monitoring and treatment process; and obtain their permission before proceeding.

I offer patients the option of having a chaperone during treatment.

I include a chaperone during treatments if the patient requires treatment in sensitive areas, has expressed embarrassment or fear, or has demonstrated unusual behaviors. I respect the patient’s rights throughout the episode of care and am attentive to his/her wishes and feelings. I refrain from harsh touching, movement and language with patients at all times. I monitor the environment of care to maximize patient safety, being careful to

■ secure entrances and exits

■ maintain unobstructed hallways and treatment areas

■ restrict access to hazardous substances and areas not used for patient care

■ conduct preventive maintenance and periodic safety checks on all equipment, per manufacturer guidelines and organizational policy

■ test equipment prior to patient use, removing any equipment that appears to be broken, unreliable or unsafe

■ sequester any equipment that is involved in patient injury and initiate investigation/root cause analysis

PART38 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 Self-assessment criteria Yes No Actions needed to reduce risks

Documentation

I consistently document according to organizational policies and procedures, professional standards, and all applicable laws and regulations with respect to

■ date, time, signature and credentials for each entry

■ patient complaints, statements and ongoing concerns relating to the treatment plan, such as progress and pain control

■ discussion regarding the informed consent process, and I include the organization’s signed informed consent form in the patient care record, where applicable

■ findings of initial and ongoing patient examinations

■ results of diagnostic procedures

■ patient responses to therapy

■ conversations/communication with other healthcare practitioners

■ discussions regarding diagnosis, treatment options and expected patient care outcomes with patient, family and healthcare team members

■ patient education and discharge instructions, noting the patient’s ability to return demonstration and correctly repeat instructions

■ objective clinical facts related to any patient accident, injury or adverse outcome

In addition, I consistently meet these standards for documentation:

■ I refrain from documenting inappropriate subjective opinions, conclusions or derogatory statements about patients, colleagues or other members of the patient care team.

■ I never remove any information, documentation or element from a patient health information record.

■ I never go back and alter a written or electronic health information record that was previously completed. Corrections made at the time of the documentation comply with organization policies and procedures.

■ I ensure that any correction of documentation errors and/or late entries conforms to organizational policies and procedures.

■ I contact my manager, risk management or legal department/counsel for assistance with documentation concerns or questions related to possible liability or regulatory compliance. I document concurrently and only make a late entry if it is necessary for the safe continued care of the patient, ensuring that it is appropriately labeled as a late entry. I understand that the patient’s health information record is a legal document. Therefore, I do not remove patient health information records (paper or electronic) from the patient care unit, clinic or office; make entries from home or other inappropriate locations; or access the patient’s health information record without a “need to know” and proper authorization according to HIPAA regulations. If provided with a laptop, electronic tablet or electronic PDA, I do not allow any other individual access to this equipment and never share my passwords or access codes.

CNA HealthPro andPART HPSO Physical Therapy Liability, ONE 2001–2010 39 Your Role and Responsibilities in Managing a Professional Liability Claim - If you carry your own professional liability insurance, immediately contact your carrier if - you become aware of a filed or potential professional liability claim against you - you receive a subpoena to testify in a deposition or trial - you have any reason to believe that there may be a potential threat to your license to practice physical therapy - If you carry your own professional liability insurance, report possible claims-related actions to your insurance carrier, even if your employer advises you that the organization will provide you with an attorney and/or will cover you for a professional liability settlement or verdict amount. - Refrain from discussing the matter with anyone other than your defense attorney or the claim professionals managing your claim. - Promptly return calls from your defense attorney and the claim professionals assigned by your insurance carrier. Contact your attorney or claim professional before responding to calls, e-mails or requests for documents from any other party. - When reporting a possible claim, provide your insurance carrier with as much information as you can, being sure to include contact information for the risk manager at your organization and the attorney assigned to the case by your employer. - Never testify in a deposition without first consulting your insurance carrier or, if you do not carry individual professional liability insurance, your organization’s risk manager or legal counsel. - Copy and retain the summons and complaint, subpoena and attorney letter(s) for your records. - Maintain signed and dated copies of all employment contracts.

PART40 CNA HealthPro and ONE HPSO Physical Therapy Liability, 2001–2010 PART TWO Healthcare Providers Service Organization Analysis of Physical Therapy License Protection Paid Claims January 1, 2001–December 31, 2010

PART TWO: Introduction Any complaint filed against a physical therapist’s or physical therapist assistant’s license can have career-altering consequences, including suspension, probation or revocation of license.

Scope An action taken against a physical therapist’s (PT’s) or physical therapist assistant’s (PTA’s) license to practice differs from a professional liability claim in that it may or may not involve allegations related to patient care and treatment. Also, the amounts paid pursuant to license protection claims represent the cost of providing legal representation to the PT or PTA in defending such actions, rather than indemnity or settlement payments to a plaintiff. Claim characteristics analyzed in Part Two include insurance coverage type, licensure type, location, allegation and licensing board outcome.

Database and Methodology There were 314 reported incidents or claims regarding license protection defense from 2001 through 2010 attributed to physical therapy professionals who were insured through the CNA/HPSO insurance program. The final data set included license protection defense paid claims that - closed between January 1, 2001 and December 31, 2010 - concerned a licensed PT, PTA or another healthcare professional providing services as an employee of an insured PT practice - resulted in a defense payment

License Protection Paid Claims In this analysis, a PT practice includes employees or independent contractors providing professional services on behalf of a PT practice. These PT practices are insured through the CNA/HPSO insurance program. This review included paid claims where the complaint was filed against an employee of a PT practice or a PT or PTA insured as an individual provider by the CNA/HPSO program. Average payment for an employee of a PT practice ($4,110) was higher than the overall average payment ($3,810), although the percentage of paid claims for employees was lower than for individually insured professionals.

Claims by Insurance Coverage Type

License Protection Paid Claims by Insurance Coverage Type (Claims Closed January 1, 2001 – December 31, 2010) 1

Percentage of Insured type paid claims Total paid Average paid

PT practice 30.6% $213,728 $4,110

Individually insured PT/PTA 69.4% $433,995 $3,677

Overall 100 .0% $647,723 $3,810

CNA HealthPro andPART HPSO Physical Therapy Liability,TWO 2001–2010 43 Claims by Licensure Type - The average paid for PTAs ($4,904) was higher than the overall average ($3,810) due to two large payments for PTA claims. The first large license protection (LP) claim involved an allegation of patient abandonment in a hospital setting, resulting in a defense reimbursement payment of $10,000. The second large LP claim involved allegations related to billing practices. - The percentage of paid claims for a licensing board complaint was higher for PTs than for PTAs.

2 Percentage of Closed Claims by Licensure Type

Percentage of Licensure type paid claims Total paid Average paid

Physical therapist assistant 4.1% $34,332 $4,904

Physical therapist 95.9% $613,391 $3,763

Overall 100 .0% $647,723 $3,810

Claims by Location - The average paid for a PT office/clinic setting ($3,914) was slightly higher than the overall average ($3,810). - The average paid for claims involving aging services facilities ($4,287) was higher than the overall average. The percentage of paid claims for aging services facilities represented 3.5 percent of the total paid claims. - The vast majority of claims (88.2 percent) occurred in a PT office/clinic.

3 Severity by Practice Locations

Percentage of paid claims Location by location Total paid Average paid

Aging services facility 3.5% $25,724 $4,287

PT office/clinic 88.2% $587,230 $3,914

Patient home 3.5% $15,912 $2,652

Hospital 4.1% $17,942 $2,563

School 0.6% $915 $915

Total 100 .0% $647,723 $3,810

PART44 CNA HealthPro and TWO HPSO Physical Therapy Liability, 2001–2010 Allegations by Class - The average paid for inappropriate behavior ($4,466) and fraudulent billing ($4,209) was higher than the overall average paid ($3,810). - The three most common allegation classes included improper management over the course of treatment (37.6 percent), inappropriate behavior (26.5 percent) and fraudulent billing (14.7 percent), which together accounted for 78.8 percent of the total paid claims. These three classes are described in greater detail in Exhibits 5 through 7.

Severity of Allegations by Class 4

Percentage of Allegation class paid claims Total paid Average paid

Improper performance using a physical agent or therapeutic exercise 2.9% $30,442 $6,088

Employer/employee issue 1.8% $14,229 $4,743

Inappropriate behavior 26.5% $200,999 $4,466

Fraudulent billing 14.7% $105,239 $4,209

Failure to test/treat 6.5% $39,471 $3,588

Improper management over the course of treatment 37.6% $208,597 $3,259

Failure to supervise 8.2% $40,922 $2,923

Administrative issue with license renewal 1.8% $7,824 $2,608

Overall 100 .0% $647,723 $3,810

The three most common allegation classes were improper management over the course of treatment, inappropriate behavior and fraudulent billing.

CNA HealthPro andPART HPSO Physical Therapy Liability,TWO 2001–2010 45 Exhibits 5 through 7 provide additional information regarding the most common and costly allegation classes . Allegations Related to Inappropriate Beha vior This chart highlights two key areas of risk for physical therapists and physical therapist assistants. The Note that the percentages are calculated in two ways – as a percentage of claims within the specific allegation average paid for allegations related to functioning outside the scope of practice ($6,020) was significantly class noted in the exhibit heading, and as a percentage of the total paid claims . The three allegation classes higher than the overall average paid. The average paid for patient abuse ($4,401), was also higher than analyzed in these charts represent 78 .8 percent of the total paid claims . the overall average paid, and it was the most frequent complaint (68.9 percent) in this allegation class. Two-thirds of the complaints in this class involved inappropriate touching. In some instances, the physical therapist or physical therapist assistant allegedly violated professional ethics and boundaries by initiat- ing a relationship with a patient.

Allegations Related to Improper Management Over the Course of Treatment Examples of the therapist functioning outside the scope of practice included the following: As presented in Exhibit 4, improper management over the course of treatment reflected the highest - a PTA using the athletic trainer credential of ATC without being licensed as such total paid. - - an athletic trainer performing patient assessment Failure to complete a proper assessment ($4,683), documentation issues ($3,578) and improper - a PT providing and/or advertising manual therapy treatment ($3,360) had the highest average paid. Only failure to complete proper assessment - a PTA providing services without required supervision ($4,683) was higher than the average paid for all claims ($3,810). Paid claims categorized as failure - to complete proper assessment included instances of untimely re-evaluation of the patient, using - a PT performing craniosacral therapy the identical care plan for multiple patients and deviating from the standard of care. - Within this allegation class, improper treatment (35.9 percent), documentation issues (28.1 percent) and failure to complete a proper assessment (12.5 percent) represented the highest percentages Severity by Allegations Related to Inappropriate Behavior of claims. These three allegations represented 76.5 percent of paid claims. 6

Percentage of paid Severity by Allegations Related to Improper Management over the Course of Treatment claims within Percentage of 5 Inappropriate behavior allegation class paid claims Average paid

Practitioner functioning outside of scope of practice 17.8% 4.7% $6,020 Percentage of paid Physical, sexual, emotional abuse 68.9% 18.2% $4,401 claims within Percentage of Failure to follow policy 4.4% 1.2% $2,747 Improper management over the course of treatment allegation class paid claims Average paid Breach of confidentiality or privacy 8.9% 2.4% $2,727 Failure to complete proper assessment 12.5% 4.7% $4,683 Overall 100 .0% 26 .5% $4,466 Documentation issues 28.1% 10.6% $3,578

Improper treatment 35.9% 13.5% $3,360

Failure to refer/seek consultation 1.6% 0.6% $3,180

Lack of informed consent 4.7% 1.8% $2,384

Failure to follow referring practitioner orders 6.3% 2.3% $2,143

Failure to cease treatment 10.9% 4.1% $1,508

Overall 100 .0% 37 .6% $3,259

PART46 CNA HealthPro and TWO HPSO Physical Therapy Liability, 2001–2010 Allegations Related to Inappropriate Beha vior This chart highlights two key areas of risk for physical therapists and physical therapist assistants. The average paid for allegations related to functioning outside the scope of practice ($6,020) was significantly higher than the overall average paid. The average paid for patient abuse ($4,401), was also higher than the overall average paid, and it was the most frequent complaint (68.9 percent) in this allegation class. Two-thirds of the complaints in this class involved inappropriate touching. In some instances, the physical therapist or physical therapist assistant allegedly violated professional ethics and boundaries by initiat- ing a relationship with a patient.

Examples of the therapist functioning outside the scope of practice included the following: - a PTA using the athletic trainer credential of ATC without being licensed as such - an athletic trainer performing patient assessment - a PT providing and/or advertising manual therapy - a PTA providing services without required supervision - a PT performing craniosacral therapy

Severity by Allegations Related to Inappropriate Behavior 6

Percentage of paid claims within Percentage of Inappropriate behavior allegation class paid claims Average paid

Practitioner functioning outside of scope of practice 17.8% 4.7% $6,020

Physical, sexual, emotional abuse 68.9% 18.2% $4,401

Failure to follow policy 4.4% 1.2% $2,747

Breach of confidentiality or privacy 8.9% 2.4% $2,727

Overall 100 .0% 26 .5% $4,466

The average paid for patient abuse ($4,401), was also higher than the overall average paid, and it was the most frequent complaint (68.9 percent) in this allegation class.

CNA HealthPro andPART HPSO Physical Therapy Liability,TWO 2001–2010 47 Allegations Related to Fraudulent Billing - Allegations included instances where the billed service was not performed or where billing codes were changed. - Complaints were filed by patients, patient families and former employees. - The average paid for claims related to fraudulent billing ($4,205) was higher than the average paid for all claims ($3,810).

7 Severity by Allegations Related to Fraudulent Billing

Percentage of Fraudulent billing total paid claims Total paid Average paid

Claims related to fraudulent billing 14.7% $105,239 $4,205

Claims not related to fraudulent billing 85.3% $542,484 $3,349

100 .0% $647,723 $3,810

The average paid for claims related to fraudulent billing ($4,205) was higher than the average paid for all claims ($3,810).

PART48 CNA HealthPro and TWO HPSO Physical Therapy Liability, 2001–2010 Licensing Board Outcomes - The largest proportion of license protection outcomes (44.1 percent) resulted in no action against the PT or PTA. - License revocation accounted for 1.2 percent of the paid claims. These claims involved allegations of sexual misconduct and patient abandonment/neglect.

This exhibit represents the relative distribution of license protection board outcomes. Terms used in these decisions include the following: - Censure – A public written reprimand regarding a violation of the physical therapy practice act, which does not impose any conditions on the professional license. - Consent agreement – Establishment of a condition or conditions that must be met in order for the physical therapist/physical therapist assistant to continue to practice. - Letter of concern – A communication from the board expressing concern that the physical therapist/ physical therapist assistant may have engaged in questionable conduct. - Public reproval – A disclosure that may or may not set conditions for continued practice. - Stipulation – A condition or limitation on the physical therapist’s/physical therapy assistant’s practice.

Percent of Claims by Licensing Board Outcome 8

Outcome Percentage of Total

Closed no action

Probation

Suspension

Fine

Continuing education

Stipulation

Reprimand

Letter of concern

Public reproval

Consent agreement

Advisory letter

Warning

License revocation

Letter of guidance

Censure

CNA HealthPro andPART HPSO Physical Therapy Liability,TWO 2001–2010 49 Recommendations License protection actions can have very serious consequences for physical therapists, physical therapist assistants and physical therapy practices. By understanding the most common allegations filed, professionals and practice owners can take effective action to minimize risk. The following measures, among others, can help reduce the likelihood of board complaints and increase defensibility in the event that a complaint is asserted: - Ensure that employees receive regularly scheduled refresher training on proper documentation, are properly supervised, and are competent in terms of both treatment and communication. - Continually develop and utilize sound communication and interpersonal skills with colleagues, patients and patient family members. - Accurately describe, advertise and deliver therapy within state practice act guidelines. - Adhere to organizational policies and professional standards. - Maintain skills and competencies through continuing education. - Ensure accurate documentation in the patient health information record. - Supervise staff as needed, and document this supervision. - Supervise patients and document this supervision. - Know the appropriate use of staff and accurately represent their skill set in the practice setting. In addition, assign employees properly in terms of their licensure and certification, and in conformity with the requirements of the state practice act.

PART50 CNA HealthPro and TWO HPSO Physical Therapy Liability, 2001–2010 PART THREE Highlights from Healthcare Providers Service Organization 2011 Qualitative Physical Therapist Work Profile Survey

PART THREE: Introduction Physical therapists (PTs) and physical therapist assistants (PTAs) must have an understanding of the type and number of professional liability claims brought against them, as well as strategies to mitigate risk. To help build that understanding, HPSO engaged Wolters Kluwer Health, Lippincott Williams & Wilkins to survey PTs and PTAs on the relationship between claims experience, average paid indemnity and such variables as - experience and education - the effect of annual continuing education (CE) requirements on average paid indemnity - the effect of states permitting consumers direct access to physical therapist services - characteristics of the incident such as number of patient visits scheduled per session time - presence of adequate staffing and risk management policies

Key survey findings are excerpted in the following pages. Because the charts are labeled as they appear in the full survey, numbering is not always sequential. The entire HPSO survey and results are available at www .hpso com/PTclaimreport2011. .

Survey Background and Methodology The survey examined the relationship between liability and a variety of factors, including demographic profile and workplace attributes of PTs and PTAs insured through the CNA/HPSO program who have filed a professional liability claim that resulted in financial loss compared with those who have never filed a claim.

Two similar survey instruments were distributed to HPSO customers with and without claims. The sample for those with claims consisted of 915 PTs and PTAs who were identified as having a claim filed with HPSO/CNA within the past 10 years. Conversely, the non-claims sample of HPSO customers was produced from a randomized sample of current HPSO customers that approximately matched the geographic distribution of the claims group.

A hybrid methodology was used, consisting of a printed mail survey and an e-mail invitation to complete an online version of the survey. To ensure PTs or PTAs did not take the survey twice, each recipient was sent either the print or the online invitation. Those receiving the print version were invited to take the online survey via a generic link. Each survey was labeled with a unique identifier to further avoid dupli- cate respondents.

Note that the survey findings are based on self-reported information and thus may be skewed due to the respondents’ personal perceptions and recollections of the requested information. The qualitative HPSO survey results are not comparable to the quantitative CNA physical therapy closed claims data in Part One or the physical therapy license protection closed claims data in Part Two. The HPSO survey does not represent all HPSO-insured physical therapy paid claims or physical therapy paid claims in general. The following chart summarizes the response rates for the survey:

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 53 Response Rates for the Survey

Non-claims Claims Response rates Print Online Total Print Online Total

Initial sample size 1,000 4,250 5,250 604 311 915

Undeliverable/Opt out --- 244 244 --- 32 32

Usable sample 1,000 4,006 5,006 604 279 883

Number of respondents 203 848 1,051 140 67 207

Response rate 20% 21% 21% 23% 24% 23%

Within Part Three of this document, results are reported on overall responses for HPSO customers with and without claims. The margin of error at the 95 percent confidence level for the claims portion of the survey was ± 5.2 percent. The margin of error for the non-claims portion was ± 3.4 percent. In either case, 95 percent of the time we can be confident that percentages in the actual population would not vary by more than this margin of error in either direction.

Some figures and narrative findings in Part Three include a reference to the average paid indemnity of the respondents’ closed claims. Significantly, the average paid indemnity related to the survey reflects only the average of those indemnity payments made on behalf of HPSO-insured PTs and PTAs who had a closed claim and who responded to the survey. Therefore, average paid indemnity findings in Part Three should not be compared with average paid indemnity findings in Part One or Part Two of this document.

Average paid indemnity findings in Part Three should not be compared with average paid indemnity findings in Part One or Part Two of this document.

PART54 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Summary of Findings - Most respondents who experienced claims had a bachelor’s degree. Because the bachelor’s degree in physical therapy was phased out in the late 1990s and replaced with master’s and doctorate degrees, most PTs with a bachelor’s degree are older. Typically they have been in practice longer, increasing the potential for experiencing a claim. Average paid indemnity was directly correlated with level of education, with higher levels of education experiencing a higher average paid indemnity. (See Table 8, page 57.) - A higher number of annually required continuing education (CE) credits slightly decreased the average paid indemnity. (See Table 11, page 59.) - Respondents who experienced claims were more likely to work in states that required a referral for physical therapy. They also had a higher average paid indemnity than those working in states that did not require a referral. (See Table 12, page 60.) - Nearly half of respondents with claims did not have anyone helping them at the time of the incident. If someone was helping, it was most likely to be a physical therapy aide or another PT. Assistance from a physical therapy aide was associated with the highest average paid indemnity. (See Table 16, page 61.) - Slightly more than half of PTs and PTAs who experienced claims reported their employer had a policy on mistake disclosure at the time of the incident, which was associated with a lower average paid indemnity. Fewer than half of respondents without claims reported their employer had such a policy. (See Table 25, page 62.) - More than half of PTs and PTAs who experienced claims were supervising someone else, and those supervising had a higher average paid indemnity. Supervising a greater number of individuals tended to result in claims with higher average paid indemnity. (See Table 33, page 65.) - Using electronic medical records was associated with higher average paid indemnity. (See Table 36, page 66.) - About half of respondents without claims reported that their organization or practice had a risk management plan in place. When there was an incident, respondents who did not use the risk management plan experienced a claim that resulted in a much higher average paid indemnity. Approximately one-third of respondents in both groups did not know if there was a plan, which may reveal the need for staff education in this area. (See Table 37, page 66).

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 55 Topic 1: Respondent Demographics Physical Therapy Licensure The majority of respondents who experienced claims were licensed PTs. PTAs were less likely to experience claims. PTs who experienced claims were subject to a higher average paid indemnity than PTAs. Please note that the data in Exhibit 1 are limited to survey responses. Therefore, findings differ from Figure 24 on page 29 of Part One.

Physical therapy licensure 1 Q: Please indicate your current physical therapy licensure.

Non-claims Claims Average paid indemnity

PT 85.7% 97.5%

PTA 10.6% 2.5%

Student 3.7% N/A

Gender A higher proportion of respondents who experienced claims were men, and men had a higher average paid indemnity compared with women ($55,256 versus $47,069). According to the U.S. Bureau of Labor Statistics (2003), the breakdown of PTs by gender is 70 percent women and 30 percent men. Interestingly, this demographic pattern is reflected in the respondents without claims, but not in the respondents who experienced claims.

Gender 6 Q: What is your gender?

Non-claims Claims Average paid indemnity

Female 75.5% 41.0%

Male 24.5% 59.0%

Age Respondents who experienced claims tended to be more than 40 years old, with 50.1 percent being older than 50 years, compared with 23.1 percent of those without claims being older than 50 years. The highest average paid indemnity occurred in respondents 36 to 40 years old ($96,594). Average paid indemnity tended to be higher in respondents over age 35. Respondents under the age of 30 rarely experienced claims. These results correlate with the fact that PTs/PTAs who are in the workforce longer increase their risk of experiencing a claim. (Note: Three large payouts in the 36 to 40 years group [$800,000, $235,000 and $200,000] may be skewing the results for this age group.)

PART56 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Age Q: What is your age? 7

Non-claims Claims Average paid indemnity

25 years or younger 4.0% 0.0%

26 to 30 years 15.7% 1.0%

31 to 35 years 15.9% 7.0%

36 to 40 years 14.0% 8.1%

41 to 45 years 13.9% 14.2%

46 to 50 years 13.4% 19.6%

51 to 60 years 18.3% 39.9%

61 years or older 4.8% 10.2%

Highest Level of Education A greater percentage of respondents who experienced claims had a bachelor’s degree compared with those without claims (49.7 percent versus 31.7 percent). The bachelor’s degree was phased out in the late 1990s and replaced with master’s and doctorate degrees. Thus, most PTs with a bachelor’s degree are older and typically have been in practice longer, increasing the potential for experiencing a claim. A smaller percentage of respondents who experienced claims had a doctorate degree compared with those without claims (18.2 percent versus 30.7 percent). Average paid indemnity was directly correlated with level of education, with higher levels experiencing a higher average paid indemnity.

Highest level of education Q: What is your highest level of education completed in physical therapy? 8

Non-claims Claims Average paid indemnity

Associate’s degree 8.4% 1.7%

Bachelor’s degree 31.7% 49.7%

Master’s degree 29.2% 30.4%

Doctorate degree 30.7% 18.2%

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 57 Topic 2: Practice Profile Location of Practice Respondents who worked in an urban area (59.4 percent) or an urban cluster (31.9 percent) were significantly more likely to have experienced claims than their rural counterparts, but respondents who worked in rural locations had the highest average paid indemnity at $92,918. The overall distribution of practice locations was consistent between the two groups.

Location of practice 9 Q: Which of the following best describes the location of your practice?

Non-claims Claims Average paid indemnity

Urban area (population of 50,000 or more) 58.8% 59.4%

Urban cluster (population of 2,500 to 50,000) 33.2% 31.9%

Rural (population of less than 2,500) 8.0% 8.7%

Primary Language English was the predominant language of all respondents.

Primary language 10 Q: Which is your primary language?

Non-claims Claims Average paid indemnity

English 97.0% 98.3%

Spanish 0.9% 0.0%

Other* 2.1% 1.7%

*Chinese, Arabic, Dutch

PART58 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Annual Continuing Education (CE) Requirements The annual CE requirements were comparable between respondents, with 88.2 percent of respondents experiencing claims needing CE, compared with 86.0 percent of those without claims. The highest average paid indemnity ($58,631) occurred in respondents without any annual CE requirements. Overall, annual CE requirements slightly decreased the average paid indemnity for respondents experiencing claims.

Annual continuing education (CE) requirements Q: According to your State Licensing Board, how many continuing education (CE) credits are you required to complete annually to retain your physical therapy licensure? 11

Non-claims Claims Average paid indemnity

No credits 9.5% 8.2%

Less than 30 credits 48.9% 51.5%

30 to 60 credits 37.1% 36.7%

Unknown 4.5% 3.6%

Overall, annual CE requirements slightly decreased the average paid indemnity for respondents experiencing claims.

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 59 Topic 3: About the Claim Submitted Seeking PT Without a Referral Respondents who experienced claims were significantly more likely to work in states that required a referral (57.1 percent), compared with respondents without claims (38.8 percent). The average paid indemnity was lower in states that did not require a referral ($48,406) than in those that did require a referral ($55,657).

Seeking PT without a referral Q: At the time of the incident, did your state allow consumers to seek physical therapy 12 treatment without a referral (i.e., direct access physical therapy)?

Non-claims Claims Average paid indemnity Yes, my state did not require a referral to 61.2% 42.9% initiate treatment by a licensed PT No, my state required a physician/licensed independent practitioner referral to initiate 38.8% 57.1% treatment by a licensed PT

Years of Practice at Time of Incident Nearly two-thirds of respondents who experienced claims (61.9 percent) had practiced for 16 years or more when the claim-related incident occurred. Respondents practicing 1 to 2 years and 6 to 10 years had the highest average paid indemnities ($147,110 and $116,286 respectively). Respondents practicing more than 21 years had the highest percentage of claims (42.4 percent) and the third-highest average paid indemnity of $44,074.

Years of practice at time of incident 14 Q: At the time of the incident, how many years have/had you practiced physical therapy?

Claims Average paid indemnity

Less than 1 year 1.1%

1 to 2 years 3.3%

3 to 5 years 6.5%

6 to 10 years 12.0%

11 to 15 years 15.2%

16 to 20 years 19.5%

21 years or more 42.4%

PART60 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Patient Care Assistance Among respondents who experienced claims, 44.8 percent did not have assistance in caring for the patient. This factor was significantly lower for respondents without claims (21.1 percent). Assistance to those who experienced claims was most commonly provided by a physical therapy aide (23.0 percent) or another PT (20.2 percent). Respondents without claims were most commonly assisted by a PTA (42.5 percent) or another PT (41.8 percent). Higher average paid indemnities occurred when assistance was provided by a physical therapy aide ($89,149) or a PTA ($62,485). Note that PTAs are licensed by the state in which they work, and physical therapy aides are not.

Patient care assistance Q: At the time of the incident, who was assisting you in the care of your patient? (Check all) (Claims) Q: Do any of the following assist you in the care of your patients? (Check all) (Non-claims) 16

Non-claims* Claims* Average paid indemnity

No one 21.1% 44.8%

Physical therapy aide 24.4% 23.0%

Other PT 41.8% 20.2%

PTA 42.5% 15.3%

Other** 6.7% 4.4%

Other licensed HCP 20.7% 1.6%

Visitor, family member 18.7% 1.1%

* Percentages add up to more than 100 percent due to the question being “check all that apply.” ** Occupational therapist, athletic trainer

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 61 Certified in Practicing Specialty Respondents who experienced claims were more likely to be certified in a specialty. At the time of the incident, 39.3 percent of the respondents who experienced claims had specialty certification, compared with 24.9 percent of those without claims. Respondents with certification had a lower average paid indemnity ($43,778) compared with those without certification ($51,156).

Certified in practicing specialty Q: At the time of the incident, were you certified in the specialty area in which you were practicing? (Claims) 18 Q: Are you certified in the specialty area in which you are currently practicing? (Non-claims)

Non-claims Claims Average paid indemnity

Yes 24.9% 39.3%

No 70.7% 54.5%

Specialty certification status unclear 4.4% 6.2%

Policy on Disclosure of Mistakes Slightly more than half (53.6 percent) of respondents who experienced claims reported their employer had a policy on mistake disclosure at the time of the claim-related incident, which was associated with a lower average paid indemnity. Significantly fewer respondents who experienced claims did not know if their employer had a policy on disclosing mistakes compared with respondents without claims (13.1 percent versus 35.9 percent, respectively). The average paid indemnity was substantially higher for respondents experiencing claims whose employer did not have a policy on mistake disclosure.

Policy on disclosure of mistakes Q: At the time of the incident, did your employer have a policy around disclosures of treatment errors? (Claims) Q: Does your employer have a policy around the disclosure of treatment errors? 25 (Non-claims)

Non-claims Claims Average paid indemnity

Yes 43.3% 53.6%

No 20.8% 33.3%

Not sure 35.9% 13.1%

PART62 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Effect of Inadequate Staffing At the time of the incident, only 2.3 percent of respondents who experienced claims perceived that inadequate staffing levels were a contributing factor. This statistic provides a contrast to respondents without claims – more than two-thirds (68.6 percent) perceived that inadequate staffing could contribute to the cause of incidents. Respondents who experienced claims and believed inadequate staffing was a contributing factor had a substantially higher average paid indemnity ($110,749). (Note: Two large claims of $290,000 and $100,000 in the “Yes” group may have skewed the results for this group.)

Effect of inadequate staffing Q: Did you perceive that inadequate staffing levels contributed to the cause of the incident? (Claims) Q: Do you perceive that inadequate staffing levels can contribute to the cause of incidents? (Non-claims) 26

Non-claims Claims Average paid indemnity

Yes 68.6% 2.3%

No 18.9% 93.7%

Not sure 12.5% 4.0%

The average paid indemnity was substantially higher for respondents experiencing claims whose employer did not have a policy on disclosing mistakes.

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 63 Number of Patient Visits Scheduled Per Single Appointment Session Time In 91.4 percent of incidents reported by respondents, the number of patient visits scheduled in a single appointment session time was two or less, but respondents experiencing claims were significantly more likely than respondents without claims to have two patient visits scheduled. The average paid indemnity was highest for respondents who had five to 10 patient visits scheduled ($75,624), followed by respondents who had two patient visits scheduled ($60,490).

Number of patient visits scheduled per single appointment session time Q: At the time of the incident, which best describes the number of patient visits per day scheduled per single appointment session time? (Claims) Q: Which best describes the number of patient visits scheduled per single appointment 30 session time? (Non-claims)

Non-claims Claims Average paid indemnity

1 76.9% 63.8%

2 14.6% 27.6%

3 to 5 5.3% 5.2%

5 to 10 2.0% 2.2%

11 to 14 0.7% 0.0%

15 to 19 0.2% 0.0%

20 to 24 0.1% 0.6%

25 to 29 0.0% 0.0%

30 to 39 0.1% 0.6%

40 or more 0.1% 0.0%

PART64 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Supervision of Others More than half (53.9 percent) of respondents experiencing claims were supervising others at the time of the incident. Of those who were supervising, most (77.9 percent) had responsibility for one or two people, fewer than what respondents without claims reported supervising. Supervision resulted in a higher average paid indemnity, and with one exception, the number of those supervised directly correlated with the average paid indemnity of the claims.

Supervision of others Q: At the time of the incident, were you responsible for supervising others? (Claims) Q: Are you responsible for supervising others? (Non-claims) 33

Non-claims Claims Average paid indemnity

Yes 46.1% 53.9%

No 53.9% 46.1%

How many? Q: If “yes,” how many? (Both surveys) 34

Non-claims Claims Average paid indemnity

1 45.1% 45.3%

2 25.4% 32.6%

3 12.1% 7.0%

4 5.3% 5.8%

5 or more 12.1% 9.3%

CNA HealthProPART and HPSO Physical TherapyTHREE Liability, 2001–2010 65 Topic 4: Facility Profile When Claim Was Submitted Type of Medical Records Most respondents who experienced claims (72.2 percent) used handwritten records at the time of the incident. Using only electronic medical records was associated with a higher average paid indemnity. These data may result from fewer physical therapy practices implementing electronic records, compared with larger facilities such as hospitals and large clinics. Moreover, those who are utilizing electronic medical records may require enhanced training to ensure their understanding of the technology.

Type of medical records Q: At the time of the incident, did your facility: (Claims) 36 Q: Does your organization/practice: (Non-claims)

Non-claims Claims Average paid indemnity

Utilize handwritten records 26.2% 72.2%

Utilize a combination 39.9% 15.3%

Utilize electronic records 30.7% 11.9%

No reporting mechanisms 0.7% 0.6%

Other* 2.5% 0.0%

*”Other” included not applicable; in the future, we’ll be using electronic medical records; no patient contact.

Risk Management Plan The majority of respondents who experienced claims either did not have a risk management plan in place at their facility or did not know if they had one. Most respondents who worked under the auspices of a risk management plan were comfortable using it, which resulted in a significantly lower average paid indemnity. As expected, those without claims were more likely to have a risk management plan and to have used it.

Risk management plan Q: At the time of the incident, did your organization/practice have/use a risk management plan? (Claims) 37 Q: Does your organization/practice have/use a risk management program? (Non-claims)

Non-claims Claims Average paid indemnity

Yes, and I used it 50.5% 37.0%

Yes, but I did not use it 3.9% 1.8%

No 9.7% 30.6%

I do not know 35.9% 30.6%

PART66 CNA HealthPro and THREE HPSO Physical Therapy Liability, 2001–2010 Knowing the risks that confront today’s physical therapists and physical therapist assistants is the first step in protecting patients and reducing liability exposure. We hope that the data, analyses and risk control recommendations contained in this resource inspire readers to closely examine their practices, and focus their safety and quality efforts in the areas of greatest risk.

Additional resources are available at www .cna .com, www.apta.org and www.hpso.com. We firmly believe that knowledge is the key to patient safety.

For additional information, please contact CNA HealthPro at 1-888-600-4776 or www .cna .com . The information, examples and suggestions have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situation. Please note that Internet hyperlinks cited herein are active as of the date of publication, but may be subject to change or discontinuation. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. Use of the term “partnership” and/or “partner” should not be construed to represent a legally binding partnership. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2012 CNA. All rights reserved.

Healthcare Providers Service Organization (HPSO) is the nation’s largest administrator of professional liability insurance coverage to physical therapy professionals. Healthcare Providers Service Organization is a registered trade name of Affinity Insurance Services, Inc., an affiliate of Aon Corporation. For more information about HPSO, or to inquire about professional liability insurance for nursing professionals, please contact HPSO at 1-800-982-9491 or visit HPSO online at www .hpso .com .

Published 01/2012

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