At 3:43 p.m. on Friday, Feb. 22, 2013, the Jackson, N.C., county jury found in favor of the doctor of chiropractic defendant in a malpractice case involving vertebral artery dissection (VAD). My name is Guy Karcher, DC, and I am that defendant. It had been almost a year and a half since papers were served and almost four and a half since the patient’s last visit to my office. I am a typical chiropractic physician and knew little of what is involved in a malpractice case.
This case is significant for several reasons and was followed closely by NCMIC, my insurance carrier, and several other groups. It is important to know that I had adequate notes and for 15 years had been using an informed consent form, which noted the remote association between stroke and manipulation.
Jackson County is nestled in the heart of the Smoky Mountains and is famous for its picturesque Court House. I practice in the town of Sylva, which is situated geographically near where movies such as Nell and Deliverance were filmed. With the advent of four-lane highways in the 70’s and the influx of Northerners, the culture of the area has changed almost as much as the local accents and dialect. Sadly, there is still a stereotype that someone with a mountain dialect or Southern accent can be fooled: I wonder if the plaintiff’s attorney felt he could easily hoodwink a Jackson County jury.
My situation began in September 2008. The patient visited my office 28 times for neck and headache pain and occasional back pain over a period of almost three years. She was a smoker who hadn’t been treated for six weeks when she presented on a Monday morning at 11:45, stating that she experienced a bad headache over the weekend and it was only slightly better. My subjective notes revealed that she rated her pain a seven out of 10 on the numeric pain scale.
I was writing my notes by hand then and had concluded some years earlier that minimal notes and travel cards were a thing of the past. The good news is that I documented a decrease in range of motion and noted several muscles that were hypertonic after a brief examination. A simple treatment plan was written with arrows up and down that noted my goals were to increase ROM (range of motion) and the quality of ADLs (activities of daily living) while decreasing pain and spasm. The patient left feeling better, which wasn’t noted in my notes, as that took a few extra seconds (and I hope any colleague reading this article will change that habit, too).
When the patient returned the next day at the same time, my chiropractic assistant (CA) noted that the patient was a seven on the numeric pain scale. My notes indicated that I adjusted her full spine and C2, C3 and C7 in the cervical spine. The patient left feeling better and went back to work. A little after 4 p.m. that afternoon the patient was nauseous, had a severe headache and felt as though she was going to pass out. She was taken home, but when another wave of symptoms occurred, she was taken to the local hospital. Suspecting VAD (vertebral artery dissection) the doctors on duty sent her to another hospital in Asheville, N.C., where further tests confirmed the diagnosis.
Put succinctly, VAD is an unraveling in the interior lining of the artery. To help people understand it, I sometimes use the overly simplistic example of a roll of paper towels that starts to unravel in the middle. Obviously, blood cells can stick together and clot on a surface that isn’t smooth. She was treated with blood thinners and was released two days later. I’m thankful that after several months of treatment, she made a full recovery.
Patients who haven’t heard the allegations that manipulation of the neck may cause a stroke, might learn it from an ER doctor, a neurologist, or even an unsolicited call from an attorney. I found out at trial that my patient learned about it at our local hospital. Unfortunately, physicians and nurses are not always more in tune with the latest advances or knowledge about the research surrounding VAD.
I was fortunate to have one of chiropractic’s most prolific authors as my instructor for public health classes in chiropractic college. It was Dr. Rand Baird who first introduced me to the term “Semmelweis Effect” — how a new indisputable truth will take years to overcome entrenched medical thinking — and he couldn’t have been more correct when it comes to chiropractic and the purported risk of stroke. The average MD more than likely has not read the Cassidy study1 or even become aware of its existence, and some of our colleagues have not read the Neck Pain Task Force study2 either.
It’s essential to know what your malpractice insurance covers, not only because the doctor is vulnerable in a lawsuit, but also the corporation of the practice and any associated doctors. I called my carrier, NCMIC, as soon as I had heard my patient was hospitalized with a vertebral artery dissection. NCMIC advised me, “Get your notes and any associated paperwork ready as everything will have to be copied,” and most important, I was not to discuss the case with anyone except my carrier and my attorney. Anyone you talk to about the case can potentially be subpoenaed. I now have a fantastic EHR (electronic health records) system and you’ll be thankful for quality notes if others are scrutinizing them.
A meeting was quickly arranged between my attorney and me. At this first meeting, it was explained to me that the process would take more than a year and that up to two years was common.
Several months went by uneventfully, until I was sent interrogatories. Interrogatories are a basic set of questions that opposing sides fill out before the depositions. I’m sure that behind the scenes the opposing side was reviewing my website and curriculum vitae. All of your present and past social media will be thoroughly examined by the opposing side. Eight months after I was served with papers, my deposition date of July 2012 took place, just about two months short of four years from the patient visit in question.
You have to prepare for your case and the time to do it is before the deposition. How and what you say at your deposition will determine how you will be attacked or appropriately defended in court.
A deposition is like a fishing expedition; your attorney and your opposition’s attorney are searching for both information and weaknesses. My deposition could have gone better, as I was grilled for several hours and 27 times denied giving a rotary break adjustment to my patient’s atlas. Still, I had good notes, a great attorney, and was confident I didn’t do anything wrong. It was a difficult and trying process to a doctor unfamiliar with legal proceedings.
Another unique and challenging problem for me at deposition and trial was that I have a mild speech problem. Under any kind of stress, if I’m not careful, I’ll stutter and stammer. I can also look very stern. The fact that I stammer and can look stern is an important issue, as many depositions are now videoed and shown in court. I wasn’t aware that the proceeding would be filmed or that my accuser would be sitting across from me staring. The fact that I looked bad in my deposition turned out to be good. My lawyer and I properly assessed that since I didn’t cause the VAD and that the patient had no neurological symptoms associated with VAD, one of the tactics the other side would use to win the case would be to try to make me look like a bad person on the stand. I took a lesson in public speaking, and that has since benefited my practice and communications with my patients.
Since our experts had been used previously by my attorney, it’s likely the opposing attorney looked over previous testimonies and saw what our experts had said in the past. My attorney told me how the plaintiff’s doctor of chiropractic (DC) stated that I was negligent in not having sent the patient for further imaging and noted he claimed that I broke my own informed consent when I said I wouldn’t put a patient’s head into extension and do a rotary break on the atlas (C1). The opposing DC stated that since I adjusted C2 I caused a rotary break on the atlas as well, because C1 and C2 articulate with each other.
The treating neurologist had his examination and cross-examination recorded and brought to trial. In an earlier deposition, he noted that the patient was completely better and really didn’t understand why there would be a trial. Incredibly, the only reason he could give as evidence that my adjusting caused the vertebral artery dissection was that the patient had symptoms several hours later.
On Jan. 31, 2013, I was brought to my lawyer’s office for mediation. I would not mediate and settle, as I had done nothing wrong and knew that I had a moral obligation to defend my profession.
I met my attorney and his paralegal on the morning of Feb. 18, 2013, where every aspect of what would happen was again explained. My lawyer’s firm was tasked with an extremely important job, but never lost sight of the fact that I was a nervous and anxious human being who had been wrongly accused and was out of his element.
My attorney argued first that under North Carolina law, the case should be dismissed, as the other side’s expert witness couldn’t cite anything other than his opinion based on the faulty logic of post hoc ergo proctor hoc [i.e., after this, therefore because of it: a formula designating an error in logic that accepts as a cause something that merely occurred earlier in time.] It is the same faulty logic that had impugned an entire profession. The judge looked impressed, but in the end sided with the opposing attorney. Jury selection started that afternoon.
Drawing names from a pool of prospective jurors, 12 seats were filled and questions were asked by the plaintiff’s side first. The jury selection lasted all day and the next morning people in the courthouse told me they had seen murder trials in which the jury was seated quicker. I believe them. We believe the jury was representative of Jackson County. There were seven men and five women. There was one Native American from Cherokee and probably half the people had been born elsewhere and moved to Jackson County as adults. A trial in a heavily populated county might have a different feel as it is quite possible to have a jury seated without a single person knowing anything about you and your office.
Everyone in litigation needs to know to expect the unexpected. We had a snowstorm and the cancellation of Wednesday morning’s litigation put certain testimony out of sequence. I believe my biggest break came Monday night after proceedings. That night, my attorney went over the one aspect of my deposition that he felt would be the most troublesome for me in court and found the solution.
I was asked how I adjusted my patient in deposition, and I honestly could not remember. I adjust the cervical region with my patients supine 95 percent of the time, and the plaintiff asserted that I had always adjusted her prone. It may sound silly, but not knowing how I adjusted my patient that day made me look both unsure and maybe even as if I was hiding something. The solution came when my attorney rightfully assessed that people could not remember where they were driving to four years earlier, but that if you never run stop signs you could truthfully answer that you didn’t run any stop signs on any date four years previously.
“I know what I always do, what I usually do and what I never do,” I repeated several times before I left that night and the next day when my attorney asked the opposing DC if he knew what he always did and never did in his office, I felt comfortable that I could give the same response. The trial proceeded and the plaintiff told her side of the story. It was interesting to me that although her attorney claimed I put her head into extension in violation of my informed consent, she said her chin was never lifted.
The most upsetting testimony was from the plaintiff’s chiropractic expert. He believed the plaintiff’s version of how she had been adjusted (traumatically) and in some of the most dramatic testimony of the trial, stated that I put her head into extension even though she had previously stated that her chin was never lifted. This bizarre statement had my attorney up in front of the jury challenging its veracity. The entire jury stood to watch the action as this testimony was carefully played out.
Because of interference from the snowstorm, we presented our best witness out of order. Our neurosurgeon was simply fantastic. Extremely articulate and intelligent, he spoke plainly and respectfully and I believe that was appreciated by the jury. He explained, as did our chiropractic witnesses, how science has shown that this incredibly rare event can happen to anyone and that there is no definitively easy way to find and diagnose the people who will have a stroke. Most important, he explained that if my adjustment had been traumatic in any way, we would have seen “collateral damage” on the MRI. This damage would have been evident as fracture, contusion, edema, sprain, etc. The members of the jury later said they understood the concept completely.
I was the last witness called for the plaintiff. I was what is termed a “hostile witness.” The opposing side questioned me first in direct examination, and though my attorney made it clear to me that he would take care of any misstatements or unclear statements in cross examination, I was fairly terrified. I didn’t want to let my attorney, the profession and myself down. I would like to tell you I did great, but moderate to good would be more accurate.
I was called to the stand on the morning of the last day as the second-to-last witness for the defense. I was feeling more confident as I was led through direct questioning from my attorney whose last questions set up one of the more exciting moments of the trial. My attorney asked the time of the plaintiff’s appointment, and I responded, “11:45 a.m. on both days in question.” He asked me if I was sure and I said yes. The opposing attorney asked how I could be so sure when I couldn’t even remember what type of treatment I had performed four and a half years earlier. I replied that I used an appointment book, I still had the appointment book and his client was written in at 11:45 a.m. both days with no erasures. I don’t think anyone thought there was a doctor who still used an appointment book in 2008. The effect was dramatic, and all but one of the jury members who talked about the case would remember it well.
Cross-examination ended with me emphatically stating that the patient was properly examined, because “I know what I always do, I know what I usually do and I know what I never do” and proper examination was something I always do.
After the verdict was read, the judge told the jury that in all the years he was an attorney and a judge he could never remember a more involved jury. The jury made me proud to be a resident of Jackson County, as there was never a moment when I didn’t see in their eyes a fierce determination to do what was right.
Several other issues came up only after the verdict. In a small community, decisions have to be made about how to deal with questions about the plaintiff and the case. I decided early on not to mention her by name or talk about her decisions. I can honestly say that I hold no bad feelings whatsoever about the plaintiff.
It is my understanding from post-trial jury communication that all the jurors understood that association didn’t mean causation and all comprehended that even a quick or sudden turn might cause a stroke. But the important testimony was that of our neurosurgeon, who had stated that a traumatic treatment would show obvious signs of collateral damage.
My experience in the trial has taught me some valuable lessons:
• Good documentation is a must and now is the time for implementing EHR in your office.
• No doctor should practice without a full understanding of what his or her malpractice insurance will cover.
• If you are ever involved in a trial, the stress from the emotional roller coaster can take its toll. If you love your patients like I do, you’ll be concerned about the quality of care they receive under such circumstances. Take time off from the office if you feel the need.
• Remember that the best notes won’t always suffice, so I ask every DC to learn about the most common reasons chiropractic physicians are sued and have a complete understanding of those conditions and symptoms.
• Informed consent is of the utmost importance and must be done with each patient, so be familiar with your state’s laws on informed consent.
Editor’s Note: Look for ACA’s informed consent resources online at www.acatoday.org/informedconsent and its VAD/stroke resources at www.acatoday.org/resources.
1 Cassidy JD, Boyle E, Côté P, et al. Risk of vertebrobasilar stroke and chiropractic care: results of a population-based case-control and case-crossover study. Spine. 2008 Feb 15;33(4 Suppl): S176-83.
2 Haldeman, S. Carroll, L. Cassidy, JD.; Schubert, J.; Nygren, Å.The Bone and Joint Decade 2000–2010 Task Force on Neck Pain and Its Associated Disorders: Executive Summary. Spine: 2008 Feb 15 - Volume 33 - Issue 4S.