Greg N. Dunn, DC
While many chiropractors are cognizant of the risk of being sued, many are blissfully ignorant of the risk of having a licensing board complaint. It has occurred to me that doctors think there is a "Holy Grail" or a "magic bullet" that can be used to deflect and defend them from licensing board complaints. There may be a more relevant way look at this. My experience in this regard has taught me that there is a beautiful simplicity to being prepared to deal with the various problems that go hand in hand with daily chiropractic practice.
Let me explain. I've written and spoken many times that even when the chiropractor (or any health care professional) does everything right, there can be an unintended outcome to the care provided or a misunderstanding can occur. These unintended outcomes and misunderstandings range from minor to severe and can be related to patient expectations or even communication, rather than the specifics of the treatment.
Also, given that patients pick their chiropractor, rather than the other way around, DCs end up with patients with all manner of personalities and socioeconomic backgrounds. This leads to patient responses that can vary greatly from stoic to histrionic. All of these factors are the components of patient interactions that may spawn patient dissatisfaction and lead to complaints or lawsuits. The reality is that no matter how good you are, trouble can and often will find you.
While I'm sure many potential problems are resolved because of sound office procedures, you could still wind up in trouble, no matter how good you are. It is being able to get out of trouble that becomes the important factor. There are three key components to effectively dealing with these situations before they become bigger problems: best practices, consent and informed consent, and professionalism and boundaries. (In reality, "best practices" encompasses informed consent. For the purposes of this discussion, however, they will be dealt with as separate and distinct items.)
Best Practices
The term best practices is meant to encompass all of the things a practitioner should do when clinically managing a patient. The process starts with a history, an informed examination (which flows to the diagnosis and differential diagnosis), a report of findings and the informed consent process. All of this should be consistent with the treatment proposed to the patient.
None of this is helpful unless there are SOAP notes that follow the progress of the patient. The SOAP notes provide the key as to the accuracy of your initial diagnosis and planned treatment, the need to change the treatment, the frequency of treatment and the need for periodic re-evaluations.
Record-keeping is a key component of best practices. It is unfortunately an area where chiropractors fail miserably. It is rare for me to review a file that is complete and without serious flaws. One of the keys to good records is making sure to record the information from the history, examination, and the treatment encounters as it happens. I have seen really good practitioners make serious errors of omission when it comes to keeping adequate records. These doctors take good histories, do reasonable examinations and provide excellent ongoing care - but fail to document that they have done so! This failure is critical for two reasons: it prevents proper follow-up and it may deprive the patient from receiving the best possible care.
Additionally, if you end up in conflict with the patient, you will have little to go on to reconstruct what happened during the time the patient was under your care. You will have a much more difficult time proving your competence in the absence of good clinical records. In almost all instances of conflict with patients, the deciding factor is credibility. The doctor's credibility is enhanced with good records and diminished without them.
Best practices are informed by the legislative context in the jurisdiction of practice, the experience of the practitioner, the practice guidelines in use, the clinical judgment of the chiropractor, current research, and the responses of the patient. This is a fluid process and must fit the individual patient.
Consent and Informed Consent
Consent is a critical component of any treatment encounter. Consent is the process whereby you obtain the permission of the patient to perform a procedure in practice. Consent in the context of a clinical encounter is obtained to perform procedures that do not carry a material risk of harm.
A patient consents to giving a history. A patient consents to examination procedures. A patient must specifically consent to the examination of sexually sensitive areas. Consent for these procedures is generally obtained verbally and documented as having been obtained by the doctor on the clinical record. An area where chiropractors can get into trouble is not listening when a patient withdraws their consent. If a patient becomes uncomfortable with a procedure, it is imperative for the doctor to stop immediately.
Informed consent is an entirely different process. Chiropractors need to quit resisting the informed consent process and embrace it. Informing your patients about the benefits of your proposed treatment is not enough! Patients need to understand what the material risks are to your proposed treatment.
This entire process starts with your report of findings and ends when the patient has read the informed consent form. It includes a discussion of the specifics of their proposed treatment vis a vis the risks and gives the patient the opportunity to ask questions. Their signature is the evidence that this entire process has transpired.
In several recent trials, every plaintiff suing a chiropractor said they had not been informed of the risks of care - even though they had signed the informed consent form. In most instances, they hid behind the veneer of: "I signed it but didn't understand it" or "I signed it but I didn't read it." They all said the chiropractor never discussed it with them. One way to defeat this argument is to initial the form yourself and date it, stating: "Discussed with patient on this date." This is in addition to having the patient sign the form.
Professionalism and Boundaries
Whether you are being sued or complained about to your licensing board, being professional and knowing the doctor-patient boundaries are critical to preventing or defending these allegations. Many times it is the breakdown of the doctor-patient relationship that triggers a licensing complaint, rather than actual dissatisfaction with the treatment itself. The issues range from billing to misunderstandings about examination procedures.
Doctors who don't have consistent office procedures and protocols are the most vulnerable. Getting too familiar with patients can also often lead to terrible misunderstandings, which may later lead to allegations of impropriety or misconduct. For example, the overly friendly female practitioner may give the impression of flirting with a male patient. This patient may then ask the doctor for a date. When the doctor correctly rebuffs the patient because she is his doctor, he may become angry at the rejection and complain to the licensing body that the doctor acted inappropriately.
There is no longer any tolerance for health professionals who cross over into personal relationships with patients or former patients. Great care must be taken with all of your doctor-patient relationships. This leads to another point of professional behavior that we often ignore. Earlier, I wrote that chiropractors don't pick their patients; they pick their chiropractor. The doctor does, however, have a choice in accepting a patient. When a patient gives you an uncomfortable feeling (on any level) early in the doctor-patient relationship, it is better to terminate the relationship rather than try to make it work and find yourself in trouble down the road.
Communication Is Key
While good communication may not prevent unintended outcomes or complaints from occurring, it can help to nurture a bond of trust and understanding. This may go a long way toward helping you diffuse difficult situations whenever one of your patients has an unintended outcome or is dissatisfied with care. If you are paying attention to your patients, you should be able to sense their dissatisfaction long before it becomes a major conflict with potential professional and/or legal ramifications. Many times, complaints are made out of frustration because the patient felt the doctor was ignoring their important concerns. The key to resolving problems (in addition to all of the above suggestions) is by talking to the patient and reaching an understanding.
