Educator Toolkit
Occupational Therapist

PRINTER-FRIENDLY VERSION

Lessons from Litigation

Occupational Therapists

Facts of the Case

The plaintiff was a 68-year-old male dentist who had been rendered paraplegic as a result of a prior accident.  The duration of the paraplegia was not disclosed.  The occupational therapist (OT) was providing therapy to assist with strengthening, conditioning and transferring from the plaintiff’s wheelchair.  The OT allegedly used an improper technique and fractured the plaintiff’s femur.  The plaintiff required surgery to repair the fracture.  As a result of the surgery, the plaintiff was no longer able to transfer and required a colostomy.

Litigation

The plaintiff brought suit for negligence against the OT and the hospital at which the care was provided.  After a ten-day trial, the jury awarded the plaintiff $1,050,000.  This consisted of $185,000 in economic damages (e.g., medical expenses, lost wages, etc.) and $865,000 for the plaintiff’s pain and suffering.

Commentary

Any form of therapy involving a para- or quadriplegic patient must take possible de-calcification of the patient’s bones into account.  Moving or taking a patient through passive range of motion exercises may place more stress on the patient’s bony structures than the bones will tolerate.  This is not to say that therapy should not be performed, but it must be done with greater care than therapy for a person with normal bone structures.  It may be necessary to require that 2 or more persons assist in moving or transferring a paraplegic patient to reduce the likelihood of undue stress on the patient’s skeleton.

Lessons Learned

Whenever a treatment or therapy poses a high degree of risk for the patient, even if the treatment is performed perfectly, the patient must be fully informed of the risks prior to undergoing the treatment.  Causing a fracture when moving a paraplegic patient is a known complication of the process even if the movement is performed diligently.  The patient should be asked to consent to this risk before the inception of care.  The best method for achieving this is to obtain the patient’s informed consent to therapy.

Obtaining the patient’s informed consent requires a discussion of the risks and benefits of, as well as the alternatives (if any) to, the proposed treatment.  This should be accomplished by the therapist who will be providing treatment or by the physician who is ordering the treatment.  This requires more than the patient’s signature on a form – it requires that the patient actually understand the risks and benefits of the treatment.  The patient should be asked to sign a form, but this merely proves that the discussion took place.  The patient’s consent to the treatment is not truly informed unless he or she understands the risks of the treatment.  If the patient accepts the risks, he or she will not be heard to complain later that he or she did not know what was involved.

All forms of therapy entail some degree of risk even if performed with the utmost care, whether it be over-exertion, fracture or dislocation.  All treatments involve the patient’s consent.  However, if the treatment carries a material risk of harm, it is best if the patient’s consent was informed.

References

Buchheister v. Berthiaume, No. 09-102704-NH (Oakland Cty. Mich. Circuit Ct. June 21, 2011)

PRINTER-FRIENDLY VERSION

Lessons from Litigation

Occupational Therapists

Disclaimer

This case is a composite drawn from case files and closed claims trends data involving occupational therapists. As such, the details have been changed. Any similarity to a specific case is unintended. The risk management advice in the claims presented is intended as general information of interest to occupational therapists. The recommendations and advice in this presentation do not reflect a legal opinion or establish a standard of care.

Facts of the Case

This case involves a 61-year-old-woman who sustained a fall from a wheelchair while being transported by an occupational therapist (OT) resulting in a non-displaced horizontal fracture across the base of the left femoral neck.

The patient had undergone left shoulder rotator cuff repair and subacromial decompression and was an inpatient a short-term rehabilitation undergoing occupational and physical therapy to help her regain normal strength, flexibility, and function. The goal was for the patient to be able to return home to resume activities of daily living, and to gradually return to her job as a day care worker.

While the occupational therapist was transporting the patient, the wheelchair tipped and the patient fell to the floor. One of the physical therapists in the department observed the fall and assisted in getting the patient back into the wheelchair. The patient denied any pain and stated that she was “ok.” She did not complain of pain and completed her therapy session with no complaints.

Three days later, the patient began to complain of pain in her left hip and leg. The staff notified the physician, who ordered a CT scan of the pelvis which showed a non-displaced horizontal facture across the base of the left femoral neck. The orthopedic surgeon did not recommend or immediately provide surgical intervention, but instead recommended conservative management of non-weight bearing for two months. The patient was discharged after one month. Follow-up x-rays showed that the fracture had become displaced and as a result had to undergo a complex primary left arthroplasty.

The patient remained wheelchair bound and was unable to ambulate at the time the lawsuit was filed approximately six months later.

Allegation

The orthopaedic surgeon and the organization were named in the lawsuit. The organization was named for the negligent acts of the occupational therapist and physical therapist. In the complaint, the plaintiff alleged that both the staff breached the standard of care by:

• Failing to properly secure the patient while transporting in a wheelchair;
• Failure to follow the established policies for post-fall evaluation resulting in a delay of care; and
• Failure to properly instruct the patient on non-weight bearing recommendations.

The plaintiff alleged that the surgeon was negligent by:

• Delaying necessary surgical intervention that resulted in a more complex surgical procedure and a longer recovery period for both the hip fracture and the shoulder surgery.

Legal Challenges

The defense of this case was complicated by the multiple failures to adhere to the organizational policies and procedures. The staff involved in the incident failed to properly secure the patient while transporting by wheelchair. Further the occupational therapist and physical therapist failed to follow the established policies and procedures that required a post-fall evaluation and for failing to report that fall to the physician. An incident report was never completed and there was no contemporaneous documentation of the incident in the medical record. The occupational therapist documented the fall in the medical record after the fracture was diagnosed. There was limited documentation of patient education related to non-weight bearing.

It was suspected that the patient may not have been compliant with the recommendations for non-weight bearing which may have led to the displacement. Nonetheless, the case was challenging for the defense based on the failure to follow organizational policies and procedures and the delay in care. Although there was some expert opinion to support the care by the orthopaedic surgeon, the parties agreed to resolve the case by settlement.

Case Resolution

After mediation, the organization and the orthopedic surgeon contributed to the settlement.

Commentary

Falls during therapy and injuries in a whirlpool or on equipment is a common allegation in claims/lawsuits against occupational therapy practitioners. Falls remain the leading cause of injury and death among older adults, with an estimated total medical cost for fatal and nonfatal fall injuries of $30.9 billion.^[i] In 2015, there were 24,190 fatal falls.^[ii]  The Agency for Healthcare Research and Quality estimates that 700,000 to 1 million hospitalized patients fall each year.^[iii] Patients in long-term care facilities are also at very high risk of falls. Approximately half of the 1.6 million nursing home residents in the United States fall each year, and a 2014 report by the Office of the Inspector General found that nearly 10% of Medicare skilled nursing facility residents experienced a fall resulting in significant injury.^[iv] Research shows that close to one-third of falls can be prevented.^[v] Fall prevention involves managing a patient's underlying fall risk factors and optimizing the physical design and environment.

According to the Joint Commission, the most common contributing factors relating to falls include:

• Inadequate assessment
• Communication failures
• Lack of adherence to protocols and safety practices
•  Inadequate staff orientation, supervision, staffing levels or skill mix
•  Deficiencies in the physical environment 
• Lack of leadership^[vi]

Lessons Learned

• Implement evidenced-based fall prevention strategies that include environmental assessments and individualized patient/client assessments.
• Adhere to safety precautions when transporting and transferring patients in wheelchairs.
• Follow organizational policies related to post-fall assessment, documentation, reporting, and disclosure.
• Communicate any potential injuries or re-injuries immediately.
• Document adverse events contemporaneously. Late documentation is less credible.
• Document environmental safety precautions. This shows that you were able to foresee safety hazards and provided a safe environment.
• Document patient education as well as any deviations from the recommended treatment plan.
• Promote a culture of safety by encouraging event reporting.

Resources

The American Occupational Therapy Association Falls Prevention Toolkit

AHRQ toolkit: Preventing Falls in Hospitals

ECRI Institute: Falls

IHI: Transforming Care at the Bedside How-to Guide: Reducing Patient Injuries from Falls

Joint Commission Center for Transforming Healthcare: Preventing Falls Targeted Solutions Tool® (TST®)

VA National Center for Patient Safety: Falls Toolkit

VA National Center for Patient Safety: Implementation Guide for Fall Injury Reduction

References

[i] Burns, E.R., J. A. Stevens, and R. Lee. 2016. "The direct costs of fatal and non-fatal falls among older adults—United States." Journal of Safety Research 99–103. doi:http://dx.doi.org/10.1016/j.jsr.2016.05.001

[ii] Ibid

[iii] Rand Corporation, Boston University School of Public Health, ECRI Institute. 2018. Preventing Falls in Hospitals: A Toolkit for Improving Quality of Care. Rockville, MD: Agency for Healthcare Research and Quality,. http://www.ahrq.gov/professionals/systems/hospital/fallpxtoolkit/index.html.

[iv] Levinson, D.R. 2014. Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries. Report No. OEI-06-11-00370., Washington, DC: US Department of Health and Human Services, Office of the Inspector General.

[v] Ibid

[vi] The Joint Commission. 2015. Joint Commission Sentinel Event Alert: Preventing falls and fall-related injuries in health care facilities . Oakbrook Terrace, IL: The Joint Commission.