February 2008

DCs face big risks with complicated cases

by Timothy Feuling

When it comes to malpractice lawsuits, no patient is completely risk free. From a strictly risk‑management perspective, every case is a potential lawsuit, even routine maintenance care. The more complicated the case, the greater the risk.

Take the case of "Martin," who sought chiropractic care from "Dr. Holmes." (Naturally, to protect privacy of both patient and doctor, these are not their real names.)

Martin was 45 when he first went to Holmes, weighed in at 260 lbs, and complained of back, leg, and neck pain along with pain down the left thigh and numbness into the hands and fingertips. He couldn't recall any specific injury that set off his back problems, which had been troubling him for about six months and getting progressively worse over the previous three months. Lately, his hand had become numb and he'd been dropping things.

Holmes had Martin complete a pain diagram which indicated a localized region of pain around his lower lumbar region, and midline in the cervical spine. The pain diagram also showed pain into the anterior thigh on the right and upper extremity into the fingers on the left.

Martin said he didn't have any bowel or bladder dysfunction, or past history of cancer. He did have a history of diabetes, hypertension, and asthma and had been treated in the past for an ulcer. He also admitted that he was a smoker and drank a six‑pack of beer a day.

Based on this history, Holmes did a brief physical examination, consisting of range of motion of the cervical and lumbar spine which demonstrated reduced motion in cervical and lumbar extension, and cervical and lumbar lateral flexion and rotation bilaterally.

Posture analysis revealed a high right shoulder, right head tilt and a right high hip. It was noted that Martin complained of posterior thigh pain upon the performance of straight leg raising. A spinal chart on the exam form indicated palpation findings at C1/C2, C5/C6, T3/4, T6/T7, L1/L2 and L4/L5.

X‑rays were taken of the cervical and lumbar spine which were of poor quality, though it could be determined that there was diffuse advanced degenerative change throughout the cervical and lumbar spine. There was posterior spur formation at the C3/4 level.

Holmes' records indicate that he diagnosed Martin as having vertebral subluxations at multiple spinal levels and began seeing

him three times weekly for about two months. On each visit, Holmes performed adjustments to the cervical spine as well as thoracic adjustments and side posture to the lumbar spine.

Other than the routine visit‑to‑visit chiropractic assessments, no re‑examination was performed.

One night after dinner, Martin became alarmed when he started having difficulty walking, so he went to the emergency room, where he was evaluated by a neurologist.

According to the ER medical records, physical examination revealed a tall, rather overweight male who had some difficulty walking. His blood pressure was 130/85. There were no neck bruit. CN's II ‑‑ XII were grossly intact. Fundi were benign. There was no muscle atrophy, fasiculations or significant segmental motor or sensory abnormality. Reflexes were highly brisk in the arms with some sustained clonus in the forearms. Lower extremities showed considerable weakness with highly brisk reflexes in the legs and sustained clonus in the ankles. There was a Babinski sign bilaterally. Superficial abdominal reflexes were absent.

Further testing included and revealed the following:

Cervical Spine MRI: There is large posterior spurring, particularly to the right of midline and accompanied diffuse posterior disc protrusion at the C3‑4 disc level with resultant very severe spinal stenosis. There is flattening of the cervical cord at this level with hyperintensity of the cervical spinal cord on T2 weighted images immediately inferior to this level consistent with localized myelomalacia. There may be mild narrowing of especially the right C3‑4 neural foramina as well. Mild to moderate degenerative narrowing of the right C4‑5 neural foramen is suggested with, as well, mild diffuse posterior and uncovertebral spurring and disc protrusion at the C6‑7 level with perhaps mild narrowing of the right C6‑7 neural foramina as well primarily related to uncovertebral spurring. There is no evidence of syrinx formation. No other superimposed cervical disc herniation is noted and no other significant abnormalities identified.

MRI Brain: The brain is normal in appearance without mass lesion, mass effect, or abnormal contrast enhancement. No confluent areas of abnormal signal intensity are noted and the ventricles are of normal size.

EEG: Normal electroencephalogram.

SSEP: The median nerve derived responses are fairly well defined, but show prolongation of N19 and P22. In addition, prolongation of N13‑N19 and EP‑N19 intervals are seen bilaterally.

The posterior tibial derived responses showed prolongation of P37 and N45 with prolongation to the upper limits of normal of L3‑P37 bilaterally. The common peroneal nerve derived responses show prolongation of P‑27 and N‑35 with additional prolongation of L3‑P27 and T12‑P27 intervals bilaterally.

IMPRESSION: Abnormal study suggesting a central dispersion.

Martin was diagnosed with spinal stenosis, disc protrusion and myelopathy and underwent emergency spinal surgery within a day of the test results to decompress his cervical spine. He then filed a malpractice claim against Holmes alleging that the doctor violated the standard of care expected of a reasonably prudent chiropractor.

The allegations against Holmes included:

1. Neglecting to take x‑rays that were of sufficient diagnostic quality.

2. Failure to note findings on the x‑rays that indicated contraindications to manipulation.

3. Failure to conduct an adequate physical examination prior to performing manipulations.

4. Failure to perform re‑examinations.

5. Keeping substandard records.

6. Failure to advise the patient of unusual findings.

7. Failure to refer the patient for unusual findings.

8. Continuing to adjust the patient despite any signs of improvement.

It was alleged that these violations in the standard of care led to a delay in proper treatment and permanent injury. Martin remained partially paralyzed and unable to work despite his surgery.

In reviewing the case, it is clear that there were several red flags in Martin's history.

The significant sensory disturbances in both the upper and lower extremities and the daily occurrence and the worsening nature of these problems ‑‑ coupled with the report that the patient was "dropping things" ‑‑ should have alerted Holmes that this was not a garden variety neck and back pain case.

While Holmes conducted a chiropractic examination and some limited orthopedic exams, he neglected to evaluate the patient's neurological symptoms and, although Holmes felt the X‑rays were adequate to identify misalignments, they were of poor quality and identified vague signs of more ominous pathology that were not further explored.

Holmes placed Martin on a three‑month care plan recommending care at three times weekly for the first month, twice weekly for the second month and once weekly for the third month. A treatment plan/report of findings document elaborated on the fact that this initial plan was for "relief care" and that after 90 days Martin would then be placed on a "corrective care" plan.

However, Holmes conducted no re‑examination during the two months that Martin was a patient and at no point did examine the patient to assess his neurological signs and symptoms. The records do not indicate any major change in Martin's condition and in fact indicate ongoing complaints of pain on each visit. There were occasional notations of "better after adjustment."

Given these facts, the case was a lawsuit in the making and is probably similar to ones you experience in your practice. In fact, many of your current patients no doubt have degenerative conditions, spinal stenosis, disc bulges, protrusions and even herniations.

It's possible, though, that you're not aware of them because either you did not evaluate them for these conditions and/or they have responded to your care so nothing prompted you to look any further.

Yet, complicated cases pose a significant risk of malpractice charges or board complaints and need to be carefully managed in order to best help the patient and protect your practice from lawsuits.

The best advice is always prevention. Recognize and be alert to neurological signs and symptoms, especially motor problems.

Ask your patients if they have any weakness, if they are dropping things, tripping over things etc.

Examine their motor systems, test their grip strength, do some muscle testing, have them walk on their heels and toes and tap their reflexes.

If you don't want to do this or feel it is not part of chiropractic, refer them to another practitioner who will conduct these tests while you address their subluxations.

There is no legal or moral mandate that you conduct neurological tests, even on patients whose histories or symptoms might suggest neurological problems. However, if you are not going to do so, you need to refer these patients right away. Otherwise, after going to the emergency room, they'll be calling their attorney.

Remember this rule: Whoever controls the motor function controls the case.

This means that if Martin comes in to see you and you identify that he has a motor problem such as weakness, a decreased reflex etc, then this needs to be monitored by someone.

If the weakness improves in a reasonable time under your care, great! If it doesn't, then you need to get someone else involved in evaluation of this patient.

If you detect neurological signs and symptoms or you suspect disc involvement you should consider advanced imaging or electrodiagnostic testing. If you don't want to refer for an MRI (or you're not sure if the patient needs one or don't know how to go about it) refer the patient to someone who does.

If you suspect a disc or neurological problem and you don't do further work‑up ‑‑ or fail to refer to someone else to do it ‑‑ chances are good that you will have to defend yourself in a court of law if the person suffers disc herniation.

People with these types of problems have been helped by chiropractic for more than a hundred years. Don't be afraid to manage these cases. Just make sure you protect your patient and your practice by handling them with even more care than you give to routine patient complaints.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and assists doctors in maximizing their practices through the proper choice of insurance and related services. Mr. Feuling is also available for speaking engagements at state conventions and other chiropractic events. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800 883 0412 or by e-mail: feuling@cbsmalpractice.com ).