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Physical therapy center, doctors dispute patient’s claim she fractured foot during therapy session; Jury trial scheduled for April 2018

By Heather Isringhausen Gvillo | Jun 22, 2017

A jury trial has been scheduled for next April in a medical malpractice lawsuit against Apex Physical, in which the therapy center disputes a patient’s claims that she fractured her foot during her physical therapy session following a stroke.

Defendants Apex Physical Therapy LLC, Ryan Lampe, Jeffrey Swank, Amy Kuhl, Meghan Whaley, Teri Kampwerth and Kerri Travous-Anstedt filed a motion to dismiss or strike the suit on April 15, 2016, through attorney Karen Vivian-Nathan of the Law Offices of Edwards Kozel in Chicago.

They argued that plaintiff Sam Lewis’ complaint fails to state a cause of action for res ipsa loquitur and fails to make a prima facie showing based on the uncontested facts.

“The law is clear that in order to state a cause of action for negligence based on the doctrine of res ipsa loquitur that a plaintiff ‘must plead and prove that he or she was injured in an occurrence that ordinarily does not happen in the absence of negligence, and by an agency or instrumentality within the defendant’s exclusive control,” the motion stated.

The defendants added that nothing was documented in the medical record and her fracture was not diagnosed until late February 2014.

“Accordingly, it is unclear how the alleged negligence speaks for itself and it is the defendants’ position that the plaintiff should be unable to avail herself of the presumption of negligence under res ipsa loquitur based on her very own averments,” the motion states.

The defendants also argued that the willful and wanton allegations must be stricken because punitive damages are not recoverable in medical negligence cases in Illinois.

Lewis filed a response in opposition to the defendants’ motion to strike and dismiss on Aug. 12, 2016, through attorney Michael C. Seamands of the Law Office of Michael C. Seamands LLC in St. Louis.

She argued that the defendants did not dispute that her foot was fractured or that the fracture occurred while she was engaged in her prescribed exercises during her physical therapy session.

She also argued that her fractured food is an “unusual, unexpected or untoward medical result,” satisfying res ipsa loquitur requirements.

“[It] is common sense that a typical patient who is attending a new physical therapist would not expect their foot to fracture while engaging in the prescribed exercises.

“Plaintiff’s foot did not fracture because she tripped and fell or some other accidental occurrence, rather the foot was injured while engaging in her physical therapy exercises assigned and controlled by Defendants. Such an injury ordinarily does not occur in the absence of negligence,” the response stated.

Lewis further argued that she notified the defendants of her foot issues during her therapy session but they failed to take any action.

“Once again, the fractured foot and nerve damage are considered an ‘unusual, unexpected or untoward medical result,’ and it is common sense that a patient would not ordinarily fracture their foot while engaging in exercises prescribed by their physical therapist,” the response states.

The plaintiff added that while she cited willful and wanton allegations, she did not do so for the purpose of pleading a claim for punitive damages at that time.

The defendants filed a reply to the plaintiff’s response on Aug. 19, 2016.

They argued that while the plaintiff alleged they failed to diagnose, which they said is an improper allegation, she did not allege that they failed to treat the fracture.

“Importantly, on information and belief based on a telephone conversation with the plaintiff’s counsel, the claim against the defendants is not that the fracture necessarily occurred during physical therapy, but that the personnel failed to address plaintiff’s alleged complaints and facilitate her obtaining medical assistance even though her husband is a physician’s assistant,” the reply stated.

Lewis alleged the defendants did not dispute that the fracture occurred during physical therapy, “although the defendants most definitely contest this claim and would emphasize that the medical evidence is undisputed that the plaintiff’s foot fracture was not diagnosed until several weeks after the alleged fracture occurred,” the reply continued.

As for the plaintiff’s willful and wanton claim, they argued that at no time would it be legally permissible for Lewis to seek recovery for punitive damages in this physical therapy malpractice case.

“Regardless of the plaintiff’s intent, her claim that the defendants willfully and wantonly failed to chart her complaints, if allowed to stand, would be unduly prejudicial to the defendants by virtue of the fact that this standard transcends negligence and denotes recklessness and/or an intention to harm.

“Permitting these allegations to remain would also be confusing to the jury. Accordingly, the plaintiff’s willful and wanton allegations must be stricken,” the reply stated.

On Aug. 25, 2016, Lewis voluntarily dismissed Whaley, Kampwerth and Travous-Anstedt with prejudice.

Circuit Judge William Mudge denied the remaining defendants’ motion to dismiss the res ipsa loquitor claims. However, he sustained the defendants’ motion to strike the willful and wanton allegations.

Lewis filed an amended complaint on Oct. 14, 2016, alleging negligence against Apex Physical Therapy LLC, also known as ApexNetwork Physical Therapy, Ryan Lampe, Jeffrey Swanke and Amy Kuhl.

She alleges she began seeing the defendants for physical therapy on Jan. 29, 2014, after suffering two strokes. She claims she informed the defendants that she had weakness on the left side of her body and that her left ankle was significantly weaker than the right ankle.

Then during her third session with the defendants on Feb. 4, 2014, Lewis claims the defendants increased her leg and foot weights by a “significant” amount. She alleges she felt something “pop” in her left foot while completing the exercises.

Lewis alleges she informed the defendants of the “pop” and resulting pain, who she claims advised her that the incident was a normal effect of therapy. However, she claims the defendants failed to reference the “pop” in her medical chart.

She later visited a doctor and allegedly learned that her foot was broken, the suit states.

Lewis claims she informed the defendants of her injury, but they continued weight-bearing and range of motion exercises without consulting her physician and with her immobilization boot removed, the complaint alleges.

As a result, Lewis claims her foot occasionally goes numb and she often falls over, she walks with a limp and her fractured foot has interfered with her stroke rehabilitation, causing her to lose the possibility of any significant recovery.

The defendants answered the complaint on Nov. 14, 2016, denying the allegations against them.

In a Feb. 23 case management order, the plaintiffs were given until June 30 to identify and make available all expert witnesses. The defendants must identify their expert witnesses by Aug. 15 and make them available for deposition by Oct. 2.

The case is currently set for trial on April 2, 2018.

Madison County Circuit Court case number 16-L-110

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