An elderly woman claims the PA’s clumsiness when moving her caused her hip pin to pop out.

Mr. P, 45, worked in a mixed orthopedic practice that treated a large number of sports injuries. The PA had handled patients without incident until the visit of a 70-year-old woman who had suffered a subcapital fracture of the hip after a fall.

She was admitted to the hospital through the emergency room. Mr. P’s supervising orthopedist performed surgery the next day, pinning the head of the femur. The woman mobilized quickly and was ambulating within 24 hours.

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Using a walker, she was discharged to the care of her daughter and given a post-op appointment for the following week. When she arrived at the orthopedist’s office, she was placed in a wheelchair and taken to the exam room. Mr. P then moved her from the wheelchair to the exam table, using standard clinical technique.

At this point, accounts differ. The patient later claimed that Mr. P “dropped her” almost to the floor, thus causing the hip pinning to dislodge. Mr. P could remember no such incident. No incident report was filed, and no note was made in the chart. The patient’s examination continued, and she was wheeled to the curb so her daughter could take her home.

On her next visit, three days later, the patient complained that her leg was “weak” and that she was unable to use the walker. The supervising physician ordered hip x-rays, which showed the hip fixation had become dislodged.

The patient was subsequently readmitted to the hospital, underwent a hip replacement, and required rehabilitation to regain the ability to walk without assistance.

Mr. P saw the woman several times during her follow-up visits. After she received the bill for the rehabilitation stay, however, she started talking about the time “he dropped me and broke my hip.” Mr. P then felt uncomfortable seeing her.

Eventually, the patient left the practice and began to see another orthopedist for her care. Around the same time, she visited a plaintiff’s lawyer, who called for the chart. He sent it for review by an expert, who reported that Mr. P’s negligence caused both the prosthesis dislodgement and the need for the hip replacement. The plaintiff’s lawyer then filed suit against Mr. P and his supervising orthopedist for “negligent handling and assistance of the patient during transfer to the examination couch.”

The supervising orthopedist asked Mr. P what he recalled about the incident. After examining the patient’s medical records and x-rays together, they concluded that the hip pin had indeed dislodged but that it had probably happened during the three days between her first and second office visits. The clinicians forwarded the papers to their insurance company, which appointed a defense lawyer.

The case dragged on for months before paper discovery ended and depositions began. The patient, who was fully ambulatory by then, was scheduled to give her deposition first. She came to the door of the lawyer’s conference room and peered inside. The supervising orthopedist, who had been watching her walk across the parking lot with her daughter, sprang up and said, “It’s good to see you moving around so well, Mrs. X.”

Based on advice from the orthopedist, the defense attorney asked a number of key questions about the patient’s activity in order to gauge hip function and several questions that pinned down exactly when during the transfer process she had felt the hip “give way,” allegedly through Mr. P’s negligence. At the conclusion of the patient’s deposition, the supervising orthopedist felt he was well prepared to counter her allegations.

When it came time for the supervising orthopedist’s deposition, he supported Mr. P, arguing that the fixation pin had become displaced, not because of Mr. P’s mishandling, but because of the subcapital location of the fracture through the neck of the femur. This location has a higher incidence of displacement, he noted.

The physician went on to testify that he believed Mr. P’s account of the incident when he said that there had been no fall in the exam room and that Mr. P would have reported such an incident had it taken place.

The following day, Mr. P gave his deposition, which was an anticlimax to that of the plaintiff’s lawyer. The PA testified that he could remember no incident that would account for the displacement of the patient’s hip fracture and that he certainly would have filled out an incident report had one taken place.

Next, the experts gave their opinions on videotape, and the case was set for trial.

At trial, Mr. P worried that there was some unknown factor the defense had missed, but his lawyer assured him that the rules of evidence would not allow any surprises. Sure enough, the plaintiff’s lawyer began working around to a time when Mr. P had dropped a patient. It had happened many years before, while he working in a nursing home as a student. At the first hint of this line of questioning, the defense lawyer sprang to his feet and objected. The judge ruled that the plaintiff’s lawyer could not bring up the earlier incident.

The case proceeded, with Mr. P working through the same set of questions he had faced at his deposition and his supervising physician providing the same supportive testimony he had given earlier.

When the case went to the jury, it deliberated for one day and came back with a verdict for Mr. P.

Legal background

Most evidence is reviewed at pretrial hearings, during which the judge decides what will be admissible for the jury to consider and what will be excluded for legal reasons. This hearing takes place before a jury is selected, so it hears and sees only the evidence that the judge permits.

Inconsistencies in jury verdicts can sometimes be traced to excluded evidence. When facts become known after the trial, jurors often feel their decision would have been different.

Lessons learned

Many providers face accusations of malpractice or mismanagement of a patient during their career, but few are accused of physically mishandling a patient. This type of case is common, however, in other settings, such as nursing homes, and we can learn from their risk-management programs.

The first safeguard is to have in place an incident report program. Incident reports are extremely useful because they provide a factual base from which the defense lawyer can work. Without a written record, memory fades, and the plaintiff’s lawyer focuses attention on the extent of the alleged injuries rather than their causation by the medical provider.

A second important principle is to have established methods for performing routine tasks, such as moving patients onto exam tables. For their own protection, staff members should participate in formal training, which should then be noted in their employment records. That way, when the plaintiff’s expert nurse testifies on the principles of moving patients and on the need for formal training in this skill, the defense will be prepared to show both that staff members were properly trained and that they used acceptable methods.