The Truth About Malpractice Claims Against DCs (Pt. 1)

Over the past 20 years of active practice, I have seen a number of scary case scenarios regarding signs, symptoms and patient presentations in my office. These presentations scream, This patient is going through an event or This patient does not need chiropractic care, they need emergency care. It is our job and our insight to know these symptoms and emergency signs to veer the patient to the proper clinical setting and/or diagnostic imaging ASAP.

I am in the clinical trenches like all of you; but I have also been lecturing over the past seven years for the CCE here in Florida and all across the country on risk management, medical errors, medical necessity and record-keeping / documentation. I have approximately 250 hours of case review under my belt dealing with malpractice claims. The attorney attached to the case always asks me one simple question: "Did the chiropractor deviate from the standard of care with this patient?"

It is apparent by the time this attorney / firm asks me the above question that a DC for the other side has already answered, "Yes!" This is sometimes a hard question to answer. We are aware that there is no cookbook answer for every case scenario. We must consider the patient's age, medical history, past traumas, occupational physical repetitive stress, past imaging, past types of treatments (results), and patient's current / past signs, symptoms and presentation.

Physicians can and should utilize their clinical judgment based upon these unique factors for each individual patient's scenario. Now my investigation of the patient's file begins. The only aspect of this investigation that benefits you, your practice and our profession is that I get to see all of the doctor's files, SOAP notes, ER notes, imaging studies, deposition transcripts, what type of presentation the patient was experiencing and the DC's mindset before moving forward in the patient's care.

Remember the definition of dead man notes? These are SOAP notes that if the treating physician dropped dead, any similarly trained doctor would be able to understand the thought process of the doctor writing the notes. Our patient exam must consist of three components; patient history, time and decision-making.

Top Two Reasons for Malpractice Claims

I have noticed patterns in more than 90 percent of the claims I review. The top two reasons for malpractice claims against chiropractors are the following:

1. Lack of initial imaging (X-rays) with the possible recommendation of advanced imaging (MRI)
2. Lack of second-opinion referrals (MD, DO and/or surgeon) based upon those imaging findings with the correlation of symptoms.

The bulk of the remaining claims are very straightforward with a wide variety of symptoms, signs, obvious deficits, previous imaging studies not reviewed or lack of necessary imaging studies ordered by the DC.

Consider This Scenario...

Patient presents with cervical or lumbar pain, mild to moderate radicular pain / tingling down extremity (or even localized sharp constant pain), and mild to moderate spasm in adjacent trapezius / glute region. No history of falls recently, major traumas or major car accidents in the past 10 years.

Patient either does not want X-rays due to radiation, which is stated on the SOAP notes, and the doctor complies with the patient's request; or the doctor does not request taking a single lateral view of the spinal region involved and is not considering or recommending advanced imaging based upon symptoms.

Now, I have to read between the lines in order to decide objectively whether the DC had proper reasons to treat based upon exam findings, initial consult and symptomatology.

The DC adjusts the patient on multiple visits, the symptoms worsen, and then the patient visits the ER. The ER takes appropriate X-rays, orders advanced imaging and then usually proceeds to neurological consult resulting in injections and/or surgery. Now the DC is blamed for deviation from standard of care and causing the discogenic lesion (which usually has 1-2 degenerative discs).

Standard of Care and Documentation

The above scenario can likely be modified by following of standard of care in your office, taking standard view(s), recommending advanced imaging if necessary, and even referring the patient for a second opinion in certain circumstances. In addition, these recommendations need to be in the patient record so the world (insurance company, attorneys, all doctors) can see you were following the standard of care.

Standard of Care: The level at which a reasonable, prudent provider in a given community would practice. It is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances.

This is the typical scenario for my initial consults. I tell the patient it appears they have a pre-existing cervical or lumbar injury that has been aggravated by something in their exercise workout, yardwork, golfing, housework, etc. I ask a series of questions to narrow it down. I then go over the duration, frequency and intensity of the symptoms, and red flag questions for documentation of medical necessity.

Now I start "overloading" my recommendation section of my initial exam for the same reason of documenting my paper trail. When any other health care provider reviews my "decision-making" mindset (SOAP notes), that doctor will understand the "why" in my rationale. This is the part that not only demonstrates the standard of care, but also shows the care and compassion I took in the patient's health care, diagnosis and future prognosis. This is not the 1970s, '80s or even '90s anymore. Our EMR records (not travel cards) are held at a higher standard.

Editor's Note: The conclusion of this article appears as a digital exclusive in the January 2018 issue.