Educator Toolkit
Physical Therapist

PRINTER-FRIENDLY VERSION

Lessons from Litigation

Physical Therapists

Greening v. School District of Millard (1986)

Facts of the Case

This case involves an 11-year-old boy who suffered a fracture to his right upper femur while participating in a therapy program administered at an elementary school. Mark Greening was born with myelodysplasia, a congenital deformity of the spinal column which resulted in some elements of paralysis of his legs. As a result of this condition, he had osteoporosis. As such, when treating a patient with osteoporosis, the therapist must exercise caution to not apply too much stress that may result in a fracture. Mark was unable to move on his feet without assistance from others and was mostly confined to a wheelchair. Mark was a student at Millard school district.

The school district paid two therapists, a physical therapist and an occupational therapist and directly supervised their activities as therapists. However, the employment arrangement changed when the therapists became employees of the State of Nebraska under the direction of the state Services for Crippled Children. The physical therapist developed an exercise program, but did not submit her goals to any physician. She did consult with Mark’s orthopaedic surgeon. The occupational therapist developed an exercise program to develop strength in his arms to help her gain greater independence. Both programs were developed without consultation from the school district’s supervisory personnel. Because of a heavy workload, the therapy was supervised by another school district employee who was not trained in occupational or physical therapy. During the exercise program supervised by the employee, Mark complained about pain and a “popping sensation” in this right leg. The employee assigned to supervise Mark was unaware of his medical condition and did not instruct him to discontinue the exercises. During the session, the occupational therapist came in and once again, Mark complained about the pain. The occupational therapist palpated the leg but failed to detect an injury and proceeded to instruct Mark through the exercise program. That evening, Mark’s mother noticed his leg was strangely positioned and took him to the hospital. The x-rays revealed an upper right femur fracture which required surgical repair.

Allegation(s)

Almost one year after the incident, a lawsuit was filed naming the school district and the occupational therapist. The plaintiff alleged that his injuries were caused as a result of negligence in:

• Permitting and allowing physical therapy exercises to be administered by a non-qualified employee;
• Permitting and allowing exercises which due to his disabilities the defendants knew or should have known were likely to cause injury;
• Failing to make any investigation of his injuries at the time of plaintiff's initial complaint or to obtain medical assistance on behalf of the plaintiff; and
• Directing the plaintiff to continue to perform physical exercises notwithstanding plaintiff's protest of pain and discomfort in his right leg area.[1]

Legal Challenges

There was little expert support for the acts of the physical therapist and the occupational therapist. An orthopaedic surgeon testified at trial that Mark's fracture occurred as the result of the "physical activity" involved in the therapy program. The orthopedist testified that Mark's leg brace acted as a focal point, which, as a result of the exercise, placed stress on the weakened bone, thus causing the fracture of Mark's right upper femur. He testified that the exercises in the physical therapist’s program "were not proper" because such exercises produced stress as the result of "the contracture at the hip and the descent and ascent of the gluteal mass.[2]

Case Resolution

During trial, the case against the occupational therapist was settled. At the close of Mark's evidence, the school district moved for a directed verdict.[a] The court granted that motion and dismissed Mark's petition. The case was appealed and the lower court’s decision was upheld. The court held that the deficiency, and even incompetence of the employee who was assigned to supervise Mark was not the proximate cause of Mark's injury, and therefore the school district could not be held liable for permitting or directing the employee to assist, supervise, or observe the exercise program administered to Mark.

[a] A directed verdict is verdict rendered by a jury upon instruction by the judge that they must bring in that verdict because one of the parties has not proved their case as a matter of law. 

Commentary

The degree of professional liability exposure for occupational therapy practitioners is primarily determined by the practice model and type of patients treated.  The employment relationship is especially significant as it may determine who is held liable for your acts in the event of a professional liability action. In this case, the occupational therapist was named individually in the lawsuit and settled the case during trial.

The school district was named in the lawsuit for acts of its employee. In this case, it was named for the acts of the non-qualified employee who supervised the therapy. Employers are vicariously liable under the doctrine of "respondeat superior" for the negligent acts or omissions by their employees in the course of employment. Note the significance of the phrase is "in the course of employment.” For an act to be considered within the course of employment, the employer must have authorized the act or the act is closely related to an authorized act that an employer should be held responsible for. If the alleged negligent act is outside of your employment setting or for a “rogue” act, your employer may not be liable. If you are an employee in a non-healthcare setting, such as a school, it is important to ensure that your employer maintains insurance coverage for professional liability acts or that you maintain an individual professional liability policy.

The judge ruled that the plaintiff did not prove all elements of negligence against the school district because the employee’s acts were not the proximate cause of the injury. To prove negligence against a healthcare professional, the plaintiff must show that the healthcare professional was negligent in rendering care, and that the negligence was the proximate cause of the injury. Negligence is defined as "the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do"^[3] The severity of an injury can range from an emotional injury to death. Four legal elements must be proven: (1) a professional duty was owed to the patient; (2) there was a breach of that duty; (3) the injury caused by the breach; and (4) there were resulting damages.

Lessons Learned

• Your insurance needs should be customized based on your employment model. Consult an insurance professional as you contemplate the type(s) and amount of insurance coverage you need.
• Identify patients at high risk for fracture and take appropriate safety precautions.
• Document safety precautions .This demonstrates that you were aware of the risks and you made efforts to keep the patient safe.
• Consult with the physician on the treatment plan for any patient with a high-risk condition(s).
• Escalate any concerns or changes in condition to a physician.
• Document any significant changes in condition that are escalated to the provider.

References

[1] Greening v. School District of Millard. 1986. 223 Neb. 729, 393 N.W.2d 51 (Nebraska Supreme Court).

[2] Ibid.

[3] Black’s Law Dictionary. 2018. "What is Negligence?" The Law Dictionary. August 6. https://thelawdictionary.org/negligence/.

PRINTER-FRIENDLY VERSION

Lessons from Litigation

Physical Therapists

Facts of the Case

The plaintiff underwent lumbar disc surgery. The surgery involved decompression, fusion and bone graft surgery of the plaintiff’s lumbosacral spine. Part of the plaintiff’s recovery required physical therapy and the plaintiff came under the care of the defendant physical therapist at the defendant physical therapy practice. Approximately 3 ½ weeks after surgery, the plaintiff underwent therapy with the defendant using an electronic traction machine to decompress her lower spine. During traction, the plaintiff complained of pain in her back and numbness in her legs several times. The defendant assured the plaintiff that it was normal and continued applying traction. The therapy caused increased pain and required additional medical interventions.

The plaintiff sued the PT individually, as well as the center at which he worked. The center defended on the grounds that the PT was not its employee and was dismissed from the suit. The defendant was served with the legal papers but failed to respond. The court held that service of process was proper and that the defendant was in default. The court awarded the plaintiff $757,394 in past damages and $735,000 in future damages, for a total of $1,492,394.

Commentary

Default judgments may rob the defendant of a defense and make liability automatic for the amount of damages claimed by the plaintiff. Legal papers, such as Complaints and Petitions, are served on the defendant and an answer is required within a designated time period, usually 20 or 30 days. Failure to answer within the prescribed period will cause the entry of a default judgment. There are only two ways to attack a default judgment: (1) prove that the service of process was not properly performed and the defendant had no notice of the suit; or (2) the failure to respond was caused by “excusable neglect.” Neither of these are inviting or promising options. Legal papers are normally served by registered mail (if you signed for it, you received it) or by an in-person process server (who has been trained on documenting service of process). “Excusable neglect” is what the court says it is – if the court does not find it excusable, the options for a remedy are very limited.

Additionally, most insurance policies have a provision that allows the insurer to void coverage in the event of late notice that jeopardizes the rights of the insurer. Thus, a nominally insured defendant may find himself in default and without insurance coverage. The whereabouts of this particular defendant were apparently unknown.

Lessons Learned

Every insured entity or person must have a fail-safe mechanism for handling legal papers. For individuals, this normally entails either letting one’s employer know or letting one’s insurer know. If you are uninsured, it means finding suitable defense counsel immediately. This is not the kind of issue that you deal with when you have the time.

Additionally, as noted above, in the event of a default judgment, there is no contesting damages. The defendant will not have the opportunity to put on expert testimony to refute the plaintiff’s demands. The default judgment essentially finds that the defendant was negligent and that the defendant is liable for the plaintiff’s damages.

It is not possible to determine whether the defendant was actually negligent in his treatment of the plaintiff. Since the issue of liability was not litigated, it is not possible to determine whether the defendant could prove that reasonable care was taken and that he complied with the appropriate standard of care. However, it does not sound good when the plaintiff testifies that she felt a great deal of pain, that she felt numbness in her legs, and that the defendant refused to stop when she asked him to. Had there been a jury trial, the jury probably would have paid close attention.

All in all, ignoring the legal papers was a very expensive mistake.

Garcia v. Kumar, Case no. 201628670 (Tex. Dist. Ct. Harris Cty. June 11, 2018)