2. Additional Treatment
If treatment is ineffective or new symptoms arise, the practitioner can re-examine the patient, perform or obtain additional diagnostic tests, or refer the patient to another health care provider.
VI. STANDARDS OF CARE
The standards of care applicable to the chiropractic profession apply nationally. They are primarily based on what is taught clinically and academically in the CCE accredited chiropractic colleges. The standards are also based on the level of care provided by well-trained, qualified and competent chiropractors. The guidelines set forth by the Mercy Center Consensus Conference, entitled A Synopsis of the Guidelines for Chiropractic Quality Assurance and Practice Parameters, published in 1992, also addresses standards of care within the chiropractic community.
VII. MALPRACTICE
A. Causes
Some common complications from chiropractic manipulative therapy include:
Vascular
injuries,
Paralysis,
Fractures,
Disc lesions,
Soft tissue injuries,
Paralysis, and
Comas.
Malpractice can also arise from a failure to refer or diagnose in a timely fashion.
B. Malpractice Actions
Until the last few years, malpractice actions against chiropractors were rare, but with the tremendous increase in utilization, and the number of providers, malpractice claims against chiropractors have increased. Verdicts against chiropractors in malpractice actions are highest in cases involving neurological or vascular injuries and failures to properly diagnose. In March 1991, a Connecticut jury awarded a 41 year old pediatric nurse $10 million based on the chiropractor's failure to warn of the risk of stroke with cervical manipulation. Following manipulation of the cervical spine, the woman suffered a stroke that caused her to become a quadriplegic.
VIII. CASE SCREENING (This is primarily directed at plaintiff attorneys)
A. Initial Contact
In the first telephone conversation with the potential client, find out why the client believes the doctor has been negligent, and what damages have resulted. Determine what records, if any, the client has in his possession. If there appears to be a meritorious case, arrange for a face to face meeting. Prior to this meeting, have the prospective client prepare a statement documenting events leading up to, during and subsequent to the act of negligence. This should be prepared at the attorney's direction in anticipation of litigation. In addition, arrange for the prospective client to bring any documentation or records to the meeting.
B. The Client Interview
Initially, review with the potential client this written statement along with any records. Advise her of the time, cost, emotional trauma and loss of privacy involved when pursuing a negligence claim against a doctor. Arrange to obtain any records that are needed. This includes all chiropractic and- medical records prior to, after and during the time of the incident. In addition, information pertaining to expenses, lost income and other damages resulting from the malpractice should be obtained. The importance of compiling all available records to the potential client cannot be overemphasized. Even a seemingly insignificant fact or bit of information could have a dramatic impact on the outcome. Extensive objective evidence and documentation are needed to prove breaches in the standards of care, causation and damages.
C. Analyze the Facts
From the information, determine if there were breaches in the standards of care. Did the doctor take an adequate history, a complete examination and were diagnostic tests performed? Was informed consent obtained during a post-examination conference? Did the doctor set up a treatment plan and arrive at a differential diagnosis based on the results of a comprehensive workup? Did the treatment appear reasonable, and was the outcome anticipated? When problems arose, did the doctor address these in a reasonable and appropriate fashion? Can you establish a causal relationship between breaches in the standards of care and the adverse outcome?
D. Determine the Legal Issues and Arguments
Weigh the pros and cons of the case and discuss with the potential client. The best way to do this is by taking the opposite position. If you are representing the plaintiff, analyze this situation from a defense point of view. The most desirable cases for the plaintiff are those with simple well documented injuries clearly traced to substandard chiropractic care. By way of example, allegations of a herniated disc in the lower back resulting from chiropractic manipulation typically present a reasonable case. An ideal situation is where the patient presents to the chiropractor with mild uncomplicated lower back pain related to working around the yard, and records show that the chiropractor failed to do an adequate workup, took no X-rays, kept no daily progress notes and never conducted a post-examination conference. The doctor proceeded to forcefully manipulate the patient's lower back while in a side posture position, causing extreme rotational strain. The patient experienced tremendous pain in the lower back which radiated the right lower extremity. Ambulation was difficult and numbness was felt in the entire right leg shortly thereafter. The patient is transported to the emergency room, where an exam, X-rays and MRI arc performed. These tests reveal the existence of a large herniated disc at the L4-L5 level. A short regimen of physical therapy proves unsuccessful, and surgery is eventually performed. Obviously, this is a favorable situation for the plaintiff, and complicating issues need to be evaluated prior to further involvement.
E. Additional Action
If the situation seems favorable, discuss the anticipated course of action with the client. Explain how experts are needed to prove the merits of various aspects of the case. In addition, formal discovery is needed to procure all records and documentation. Financial arrangements are made with regard to obtaining experts and all necessary documentation.
IX. LOCATING AND SELECTING EXPERTS
A. Finding the Chiropractic Expert Witness
It can be
very difficult to find a qualified, competent, experienced chiropractor who
is both in active practice and willing to become involved in a malpractice
action against another doctor. The chiropractic community is a small, close
knit group that generally takes a dim view of anyone critical of its members.
The pressure on fellow professionals, especially at the local level, to support
the profession is intense. Frequently, an attorney will hire a local chiropractor
to testify against another doctor in the community only to have him withdraw
due to intense peer pressure. For this reason, it is often wise to avoid hiring
a local expert to testily on behalf of the plaintiff.
On the other side of this equation, the defense should have no problem finding
many qualified and willing experts. Indeed, chiropractors will generally rush
to the aid of a fellow professional accused of negligence. The most desirable
expert is one who has several years of clinical and legal experience. The
expert should be a graduate of a fully accredited chiropractic college, with
a four year undergraduate degree. The expert should also spend the majority
of his or her time in active clinical practice. In fact, many states have
set guidelines pertaining to the percentage of time an expert needs to spend
practicing as opposed to the time spent on forensic matters. Many states have
imposed a 50-50 rule which limits the time an expert may spend on forensic
activities. Maryland is the most restrictive state, limiting qualified experts
to annually devoting less than 20% of professional time to activities that
directly involve testimony in personal injury cases. Even in states without
these requirements, avoid hiring an expert with impressive educational credentials,
but lacking in past and current practical experience. These doctors may be
out of touch on issues affecting the field practitioner on a day-to-day basis.
They will usually be an easy target for opposing counsel to discredit. Teaching
and lecturing are desirable activities. Jurors view such activities as respectable.
Authoring professional and non-professional publications also adds credibility.
A limited number of carriers offer chiropractic error and omissions coverage.
National Chiropractic Mutual Insurance Company ("NCMIC"), a mutual insurance
company owned and operated almost exclusively by policyholders, insures the
majority of chiropractors in this country. It presently offers only occurrence
policies, NCMIC markets itself to the chiropractic profession by advertising
that they will not settle your claim, unless you authorize them to do so.
This lack of a "hammer clause" can cause a case not to settle when a stubborn
chiropractor is involved.
Many other malpractice policies have hammer clauses. A hammer clause is a
policy provision which places significant pressure on a professional to settle
on the terms requested by the insurance carrier. This is accomplished by placing
a penalty on the failure of the policyholder to settle on the recommended
terms. By way of example, if an insurance company recommends that the doctor
settle a claim for $20,000, an amount acceptable to the plaintiff, and the
doctor refuses, the doctor will be liable, under most provisions, for any
excess judgment or settlement. The purpose of this provision is to not allow
a doctor's emotions or desire for vindication to overcome common sense. The
cost of litigation can greatly exceed the settlement value of a case. A case
that could be easily settled for a few thousand dollars, can end up costing
the carrier significantly more in legal fees.
B. Locating Experts
The best,
most desirable way to locate an expert is through a referral from someone
having first hand knowledge of the individual and his or her abilities. Check
with law firms and attorneys specializing in medical malpractice for referrals.
It is very common for attorneys specializing in negligence claims to maintain
lists of experts in various fields. If this first method of locating an expert
is unsuccessful, check various national and regional jury and case reporting
services. These services generally list and describe verdicts involving chiropractic
negligence, along with the names of expert witnesses for both the plaintiff
and the defendant.
Another way to locate experts is through forensic and expert witness services.
These companies generally maintain lists of experts m various fields for both
the plaintiff and defense. The quality of these experts may vary considerably
depending on how carefully they are screened, and what qualifications are
required. The fees are usually paid by the attorney, as either an initial
fee or as a percentage of hourly fees for various services. Most of these
companies advertise extensively in publications such as the American Bar Association
Journal, the National Law Journal, Trial Magazine and local and regional publications.
Recently, companies such as Martindale-Hubbell have begun offering data bases
of expert witnesses in many fields. Some of these companies do not have any
involvement with chiropractic experts.
If you consider using one of these expert witness services, there are several
areas that need to be investigated prior to making a final selection. Analyze
who runs the company, their background and professional qualifications, and
how long they have been operating. Also analyze their basis for hiring, screening,
qualifying and evaluating the experts they use. Finally, consider their fee
arrangements and their policy if you are not pleased with an expert.
C. Selecting Experts
Make a list of all perspective experts and telephone them. Initially, speak with them briefly about the situation, noting their ability to communicate and comprehend the issues. Specific areas of investigation initially include the following:
* Educational
background and clinical experience
*Percentage
of work done on behalf of the plaintiff and defendant
*In which jurisdictions the expert is licensed, has worked and been qualified
to
testify
*Willingness to testify and travel
*
Total number of cases reviewed and testimonial experience
*Specific fee arrangements and turnaround time
* What percentage of cases are without merit, and how is this handled
* Time spent in active clinical practice versus forensic matters
* Prior personal, legal or personal issues that might affect credibility
