Managing Your Risk

Managing your risk – LBP Case Study

This article is a collaborative effort by members of the APA/Guild Insurance Risk Management Committee. The clinical background has been provided by Ken Niere and responses from a legal perspective provided by David Short of Meridian Lawyers on behalf of the APA/Guild Insurance Risk Management Committee.

Patient presents

A 40 year old self-employed builder presented to physiotherapy with acute, right sided low back pain extending into his right buttock. The symptoms had been caused by a lifting/twisting incident the previous day, but he was able to keep working.

On the day of presentation the builder had woken with severe pain and was unable to go to work. There were no symptoms below the buttock. His pain was constant but aggravated by bending, sitting and standing still. On physical examination, all active movements while standing were markedly restricted by increased pain while repeated extension in lying appeared to ease the pain slightly. Palpation in prone revealed spasm in the lumbar erector spinae and right gluteal muscles. Pain and increased muscle spasm were elicited on pressure over the spinous processes of L4 and L5.

Initial treatment involved soft tissue massage to relieve spasm in the gluteal and erector spinae muscles, extension exercises in lying and taping to provide support. An explanation of the likely pathology (disc injury) and advice to try to continue with normal activity within pain tolerance were given. A follow up appointment was made for two days later.

Meridian Lawyers:

Importance of documenting patient interactions and progress of treatment

1. Maintaining a proper “paper trail” is a critical risk management tool.  In most cases, a claimant has three years after sustaining a personal injury in which to bring legal proceedings.  Further, it may take a number of years until those proceedings are heard.  A busy physiotherapist cannot be expected to remember how a particular patient appeared, five years earlier.  Without contemporaneous documentation, it will often be the physiotherapist’s word against the claimant’s.  Not surprisingly, in such circumstances a claimant’s version of events is often accepted on the basis that the incident in question was life changing for him or her, whereas the physiotherapist has gone on to treat hundreds of other patients and does not necessarily have cause to remember one particular treatment over another.

Patient returns

On follow up the patient reported that he was much worse – his pain had spread into his thigh and he had developed a numb feeling in his shin. On further questioning he felt better after treatment and the next morning, but sitting in the car and bending at work had aggravated his pain. His sleep had been disturbed and he had difficulty weight bearing on his right leg although sitting now gave some temporary relief of his symptoms. On examination, active movements were still restricted by pain and he was unable to lie prone. Straight leg raising was restricted to 30 degrees on the right. Segmental neurological examination did not reveal any deficit on sensory and reflex testing. However there was a 25% decrease in strength of right ankle dorsiflexion. Treatment of manual traction and right rotation mobilising was attempted although these led to an increase in the thigh pain and were discontinued.  The patient was advised to consult his GP.

Meridian Lawyers:

Importance of undertaking accurate neurological examination and documenting appropriate actions when changes occur

1. Unless appropriate (and documented) investigations are undertaken pre treatment, a physiotherapist may expose his or herself to an allegation that the treatment provided may have been inappropriate and may have caused the patient pain or injury.  Further, a patient may assert that had he or she been presented with the outcome of the investigations prior to the commencement of treatment, such that they were properly informed of their condition and the risks associated with treatment, they may not have proceeded with the treatment.  “Failure to warn” cases can be difficult to defend.  Investigations must be kept up to date, that is, if the patient’s condition changes significantly, for the reasons set out above, further investigations (or, at least, presenting the option of further investigations) may be warranted.

Was it enough to simply advise the patient to see their GP when the condition had worsened?

1. It was not sufficient to verbally request the patient consult his GP.  The patient may have misunderstood information provided by the physiotherapist and/or forgotten to tell the GP important aspects of the physiotherapist’s findings.  At the very least, the physiotherapist should have written to the GP.  It would have been even better to have also telephoned the GP to discuss the matter.  Both the physiotherapist and the GP were involved in treating the patient and the sharing of knowledge and ideas between them could only be to the patient’s benefit.

Patient returns post referral with diagnoses

One week later the patient returned for physiotherapy. He had seen the GP who diagnosed a sacroiliac joint strain, had prescribed non-steroidal anti-inflammatory medication and one week rest in bed. The patient reported that the pain felt easier with resting in bed but that he was still unable to weight bear. Neurological examination revealed decreased sensitivity to light touch over the lower medial shin and no activity in the tibialis anterior muscle on active dorsiflexion.  The patient was advised to return to the GP who changed the anti-inflammatory medication and prescribed further bed rest. When this was ineffective the patient attended the emergency department of a public hospital. An MRI showed an L4-5 disc prolapse and a neurosurgeon performed a laminectomy and discectomy to decompress the fourth lumbar nerve.

Meridian Lawyers:

What are the responsibilities of a physiotherapist as the primary contact practitioner?

1. At all times, the patient’s health is paramount, regardless of whether the physiotherapist is the primary contact practitioner or otherwise.  Having said that, a primary contact physiotherapist practitioner is usually expected to take the lead in terms of investigating a patient’s condition and co-ordinating appropriate treatment.  In this case, it is arguable that the physiotherapist could and should have undertaken those roles in a more effective manner.

What responsibilities does the physiotherapist have when the GP diagnosis and management is considered inappropriate?

1. The physiotherapist’s primary responsibility is to the patient.  It is not appropriate to simply accept the views of another medical practitioner, particularly when you do not agree with those views.  Again, consultation with the GP would have been helpful.

Case outcome

After twelve months the patient has residual foot drop that impairs his ability to work. He has sought the opinion of a lawyer and a claim for damages has arisen against the physiotherapist for aggravating the condition at the initial consultation and for not recommending appropriate imaging.

Action has also been taken against the GP for not correctly diagnosing the condition, not arranging appropriate imaging and not providing appropriate referral and management of the patient’s condition.

Meridian Lawyers: 

Key issues to consider to prevent or diminish liability:

• It is recommended that a physiotherapist should document how the patient is at the beginning and end of each session and record an accurate account of their condition between sessions.
• It is important to undertake an accurate neurological examination and document appropriate actions when changes occur.
• Physiotherapists should meet their responsibilities as the primary contact practitioner.
• Always advise the patient to see their GP if their condition has worsened (confirm in writing and make contact with GP).
• Consult with the GP when diagnosis and management of the patient is not considered accurate or adequate.