Chiropractic Malpractice Claims May Be Down Slightly, But DCs Should Still Remain Vigilant of Their Patients’ Needs and Rights

By Gina Shaw, Contributing Writer

If you’re a practicing obstetrician in the state of Florida, it costs you around $200,000 a year just to pay your medical malpractice insurance. A neurosurgeon in Pennsylvania will pay around $150,000 per year; some neurosurgeons pay as much as $384,000 for their malpractice insurance each year. Even less “risky” specialties have seen their med-mal rates hike over the past decade—in 2002, internists in Texas faced rate increases from 40 percent to 57 percent.

Amid the cacophony of rising malpractice rates affecting so many health care practitioners, chiropractic remains a sea of calm. “While high-risk medical specialties are paying as much as $200,000 to $250,000 and more in premiums, doctors of chiropractic, practicing a noninvasive specialty, generally have rates lower than $5,000,” says Lawrence Wyatt, DC, DACBR, a member of the faculty at Texas Chiropractic College and author of the Handbook of Clinical Chiropractic Care (now in its second edition), who frequently testifies as an expert witness in chiropractic malpractice cases.

“Rates for doctors of chiropractic have remained reasonably steady in the past few years,” agrees Louis Sportelli, DC, president of NCMIC Chiropractic Solutions, the nation’s largest provider of chiropractic malpractice coverage. “In fact, the number of malpractice cases has declined slightly.”

But that doesn’t mean that the doctor of chiropractic should treat malpractice concerns lightly: The cases that are filed appear to be more severe in nature, says Dr. Sportelli, with fewer frivolous cases than were seen a decade ago. That’s a good news/bad news scenario if ever there was one; doctors of chiropractic today face less of a risk of spurious lawsuits than they did in the 1990s, but when suits are filed, the consequences can be much graver.

Trends Unchanged

The types of cases themselves, most experts agree, have remained largely the same for some time. Doctors of chiropractic are most often sued for malpractice based on the same broad claims:

·        failure to diagnose

·        failure to refer

·        disc herniation

·        other miscellaneous complaints, such as burns.

“The only new trend that we see is more patients seeking action for a failure to provide informed consent, which is obviously a growing issue with a more sophisticated consumer wanting to be informed of all the options,” says Dr. Sportelli.

This trend can cut both ways for the doctor of chiropractic, as highlighted by the 1999 New Jersey Supreme Court decision in Matthies v. Mastromonaco. The case involved an active, independent 81-year-old woman who had fallen and fractured her hip. Her orthopedist, concluding that the woman’s osteoporosis precluded surgical pinning, recommended bed rest without presenting other treatment options or the possible consequences of the recommended bed rest. Complications ensued, leaving Matthies unable to walk and confined to a nursing home. When she sued for negligence, the initial court ruling found for the treating physician, dismissing the informed consent count on the grounds that it applied only to “invasive procedures.” The appellate court reversed the trial court, and the New Jersey Supreme Court ultimately concurred, finding that informed consent applies to both invasive and noninvasive procedures, holding that physicians must inform patients of the possible risks and benefits of all “medically reasonable” treatment options—including those he or she does not recommend.

“This has huge ramifications for the chiropractic profession simply because chiropractic is one of the safest, most conservative, cost-effective therapeutic interventions in health care today.  In the past, orthopedic or spinal surgical consideration of chiropractic intervention may have not been high on the radar screen of many orthopedic surgeons,” says Dr. Sportelli.  “With this ruling, in New Jersey at least, the orthopedic surgeon must provide the patient with a chiropractic option even if he/she may not approve.”

On the flip side, however, the burden is also on the doctor of chiropractic to provide similarly thorough informed consent. “The chiropractic community must also be cognizant of their obligation to list all viable options as well,” he continues. “The underlying theory of this case essentially can be summed up by suggesting that if all reasonable options were not made available to the patient, by not discussing all options the physician has effectively made the choice for the patient, which is unacceptable.”

Stroke of Misfortune

Doctors of chiropractic might have expected to see another new trend in malpractice cases—an increase in causes of action brought related to chiropractic neck manipulation and stroke in the wake of the Lana Lewis case in Canada. In January 2004, an Ontario coroner’s inquest jury found that Lewis, a 45-year-old Toronto factory worker, suffered two ultimately fatal strokes as the result of an “accident”—with the verdict pointing to the neck manipulation she received about two weeks before her death as the proximate cause of her stroke.

The jury’s 17 recommendations following the Lewis case were detailed and comprehensive. They advised that chiropractic physicians obtain written informed consent from every patient before performing a neck adjustment and that every patient be given an information sheet with risks and stroke symptoms clearly spelled out, and called for an adverse-events database and large-scale studies into neck adjustments and stroke.

But two years later, says Dr. Sportelli, “the only increase in the issue has been an increase in the publicity surrounding CVA (neck stroke) and spinal manipulation.  There has been no increase in the numbers of CVA cases since the Lewis case. What the research has uncovered is that there is no causation relative to spinal manipulation but rather there is an association between the manipulation and CVA.”

Dr. Sportelli points to research indicating that many people who have had vertebral artery dissection—the only stroke to have been associated with manipulation—have actually presented to their doctor of chiropractic with the stroke already in progress, complaining nonspecifically of severe “neck pain.”

“The individual goes to their chiropractor because of the neck pain, and thus the vertebral artery dissection progresses while at the chiropractor’s office,” he explains. “But the individual most likely would have developed this dissection if they were backing their car out of their driveway, looking up at an aerial show, or some other activity.”

Following the Lewis verdict, NCMIC developed a fact sheet, “Current Concepts: Spinal Manipulation and Cervical Arterial Incidents, 2005.” It aggregates a wide range of data on stroke and cervical manipulation, noting that clinician surveys estimate the risk of serious cerebrovascular syndromes after cervical adjustment anywhere from one in 400,000 to one in 5.8 million, or less than one in 2 million to one in 3.8 million to 5.8 million cervical manipulations, if data from the two largest chiropractic insurers are used. “In summary, the incidence of CAD or cerebrovascular incidents following spinal manipulation to the neck is very small and at the same magnitude that occurs in the general population,” the fact sheet reports.

But the Lewis case does highlight the chiropractor’s responsibility—one shared by all health care professionals—to be better educated about stroke and the symptoms of stroke, so that they improve their ability to recognize a dissection in progress. “It’s extremely difficult to diagnose,” notes Dr. Wyatt. “In probably 75 percent to 80 percent of patients, the only specific symptom they will report is the worst headache or neck pain they’ve ever had. Every other symptom we can point to only occurs in some 25 percent to 50 percent of patients.”

NCMIC’s fact sheet highlights some of the signs and risk factors practitioners should be aware of. It’s available to policyholders online at www.ncmic.com (click on “continuing education” at the top of the page, and then select “online publications” on the right-hand side) or by calling NCMIC at (800) 769-2000, ext. 446. (Editor’s note: Members also can refer to the ACA’s Healthy Living fact sheet on stroke, available at www.acatoday.org; click on Member Information Center>Healthy Living Fact Sheets.)

“The main thing is that a patient who reports a new onset of headache or neck pain that they describe as different from anything they’ve ever experienced before, or the worst pain they’ve ever had, should raise a red flag,” says Dr. Wyatt. “The vast majority won’t be in the middle of the stroke, but some will be. If the symptoms are suggestive of a stroke, the only real option is to send the patient to the ER with an advisory that you suspect a stroke in evolution and/or a vertebral artery dissection.  Emergency room doctors miss these lesions, too. And don’t let the patients drive themselves.”

Physician, Protect Thyself

How can the doctor of chiropractic guard against malpractice suits? By remaining true to the best of the profession and rejecting some of its negative elements, say experts. Some opportunities and pitfalls:

ü      Document, document, document. “The thing that I see most often that makes it difficult to defend malpractice cases is poor record keeping,” says Dr. Wyatt. “Take accurate notes and keep accurate records. This includes adverse reactions. Many chiropractors think that if they put a negative result in the record that it may hurt them in a malpractice suit, but I find the opposite is true in most cases, provided they have a legitimately defensible case.”

ü      Stay on the cutting edge. “Better diagnostic acumen is important. The further we get out of school, the more likely we are to lose contact with our skills,” says Warren Jahn, DC, MPS, FACO, DABFP, a chiropractic orthopedist and sports physician who frequently serves as an expert witness in malpractice cases. “Since not that much ‘new’ is happening in chiropractic compared to other specialties with lots of new technology, doctors of chiropractic tend to pay less attention to continuing education.” But new trends in lifelong learning suit the chiropractic style: A profusion of online coursework can help improve things like report-writing and documentation, areas where chiropractic has traditionally been somewhat weak.

ü      Focus on the doctor-patient relationship. Studies have repeatedly found that doctors who have a good rapport with their patients tend to get sued for malpractice less often, regardless of the facts of the case. That puts chiropractic at an advantage. “We as chiropractors have a tendency to touch our patients more and have a stronger bond,” says Dr. Jahn. “Chiropractors take the time where many other doctors don’t.”

Should you ever say “I’m sorry” to a patient who’s experienced a bad outcome? That’s a thorny question. “I think most malpractice carriers in chiropractic will say you shouldn’t say those things, but I would suggest some phrases that help you recognize or communicate the patient’s feelings without acknowledging fault,” says Dr. Jahn. Among them:

·        I feel bad that this happened.

·        I’m sorry you had this outcome.

·        I know you’re feeling frightened and disappointed.

·        I know you’re going through a lot of pain.