6 Things I Have Learned as a Legal Expert

6 Ways for PT’s and ATC’s to Avoid Getting Sued

Note: A great majority of SSOR’s blogs are written by Dan Lorenz, and this particular one is as well.  However, it is written in first person due to his experience with being a legal expert. 
Over the last several years, I have had the opportunity to be a legal expert or expert witness for roughly 40-50 cases involving physical therapists and athletic trainers.  It is very challenging, thought-provoking work to be sure.  During review of summary statements, depositions, petitions for damages, medical documents, and the like, I find that I have more questions than answers.  Sometimes I wonder what the heck people are thinking while other times I’m amazed at the confluence of circumstances that created a very unfortunate situation.  Most of the time, I have been a plaintiff’s expert, but I certainly have been on the defense side too.  I have also told a number of attorneys for the plaintiff that there is no case.  I have also told several attorneys that they’ll probably find someone that will support the plaintiff or defendant, but it won’t be me.  To be clear, I don’t do this to be a glorified “hall monitor,” looking to “stick it” to my colleagues in physical therapy and athletic training.  All that said, there are certainly some trends in just about all of these cases that I’d like to share so hopefully, physical therapists and athletic trainers don’t find themselves at the subject of litigation.  Sadly, I think most readers will say “well duh!!” but these things are clearly happening…a lot.
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  1. Document, document, document. This one has been drilled in our heads from pretty much the first day of PT school, but for some reason, many of my colleagues fail to record what they did or didn’t do.  It’s amazing how a plaintiff can say one thing and there is absolutely no sign of it in the documentation.  Certainly, people can embellish or unfortunately even lie looking for a “scapegoat,” but more often than not, something happened.  Now, defense attorneys will say that “because it’s not recorded, maybe it never happened” or “just because it’s not written down doesn’t mean they didn’t do it.”  While that may be true, if you didn’t write it down, it’s your word against the patient’s in the courtroom and a jury will decide who’s more believable. If an adverse event occurs during treatment, record it.  Evaluate the patient’s pain, range of motion, strength, and offer treatment. If they refuse, record it.  If you suggest we contact the doctor and they refuse, record it.  It’s OK to allow pain or reduced function 24-48 hours to resolve and treat it – ice, rest, etc.  Hey, sometimes you can make people a little worse.  That said, have a plan in place to re-check them.  Notify the doctor too.  Tell them what happened.  It doesn’t look good for you if they’re blindsided.  If you call the doctor, record in your notes who you left the message for.  That way, if they don’t call back and something adverse happened, you did what you were supposed to do.  In sum, any “deviation from the expected” should be recorded.
  1. Poor progressions. It’s striking how many times I’ve reviewed cases as a legal expert where a physical therapist or athletic trainer did A, then B, then skipped to M. You can always add weight or make things tougher, but you can’t backtrack if you harm the patient.  Progressive overload and the SAID principle applies with everything we do.  Bilateral before unilateral, basic before complex, one plane before multiple planes, gravity-eliminated before anti-gravity, etc.  Along the same lines, you’ve got to make sure the quality of movement is appropriate for loading.  For example, if the patient can’t elevate the arm to 90° without hiking without weight, why the heck are you loading them with dumbbells?
  2. Being too aggressive. It’s puzzling why so many PT’s are crazy aggressive out of the gate, but when it’s actually time to be aggressive, they aren’t.  Of particular concern is all the rotator cuff cases I have reviewed as well as general shoulder cases as legal expert where patients were aggressively stretched too soon.  You have got to understand the biology of healing tissue as well as why post-operative restrictions say what they say and when it’s OK to progress loading.  Along the same lines, make sure you understand the PT prescriptions and what precautions there are for the condition you’re treating.
  3. Not being safe. Sigh…again, this is first day of PT school stuff.  Put the gait belt on.  Hold on to the patient.  Make a safe environment for them to do things.  Don’t put a patient who can’t stand on flat ground with good balance immediately on the BOSU or other unstable surfaces.  Safety, safety, safety has to be your mantra.  Worried about overkill?  You should worry more about your patient and your license to practice!
  4. Poor communication/poor listening. If a patient says stop, stop.  If you know they can do more or if they’re being soft, just document it.  Encourage them, maybe put fear of more surgery into them, but don’t disregard their feelings.   Alternatively, if something smells funny about their condition, notify the doctor.  If you’re wrong, you’re wrong.  Always look out for the best interests of the patient and well, your license!
  5. Laziness, apathy, ego, or just plain blindness. It’s striking how many times I’ve read cases where I read symptoms and it’s blatantly X, I’m screaming it at the documents in front of me, and the PT or ATC didn’t catch it, minimized it, disregarded it, or just didn’t do a good job evaluating it.  Make sure you know your “yellow flags” and “red flags” and also, don’t make any assumptions.  Don’t say, “this kid is too young for this condition. Can’t be that.”  Don’t let your pride/ego or arrogance get in the way. If it smells funny, say something.

Without question, one of these six items occurs in just about every case I review as a legal expert.  Sure, terrible circumstances sometimes lead to adverse events and patients look for someone to blame/someone to be responsible.  There are several times where I have really felt bad for my colleagues who found themselves in just a terrible situation that many times, they aren’t at fault for.  However, being mindful of the above will protect you, your patients, your employer, and your license.
Hope it helped.  Love to hear some feedback.  Shout at me on Twitter, @kcrehabexpert. Thanks for reading.

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