A female chiropractor looks at a chart with her older male patient.

Attorney Accuses DC of Incompetence in Malpractice Case

Even when numerous health professionals fail to detect a problem, there can be a tendency to blame the DC for an unexpected outcome.

Monica Avery, DC, first saw 47-year-old Don Carroll on Nov. 7, 2016. Don was referred to Dr. Avery by a physician’s assistant at a local medical clinic.

At the time of this visit, Don was complaining of sharp, constant, throbbing and shooting pain into his head and neck with pain an “8” on the 1-10 pain scale.

In taking Don’s history, Dr. Avery learned he was taking Nexium, Bactrim, Zoloft, Ambien and Ultram. Don was reporting no vision problems, but said he was feeling nauseous—a condition that worsened with certain head movements, such as looking up. The exam revealed that Don was suffering from spasms in the suboccipital, scapular and trapezius regions, but his reflexes were normal. On motion and static palpation, there were findings at left C2, right C5 and right T4.

Dr. Avery performed vertebral basilar insufficiency, compression, costoclavicular, Wright’s, Adson’s and Libman’s tests—all of which were negative. She also performed a shoulder depression test, Spurling’s test and a distraction test—all of which were positive. A distraction test reproduced Don’s headache symptoms. Dr. Avery noted on her X-ray report, taken that same day, that there was evidence of vertebral subluxation at C1, C4 and C6, with severe and reduced cervical lordosis. The disc spaces appeared normal, and the cervical spine was negative for fracture or gross pathology.

In addition to the multiple cervical subluxations, Dr. Avery identified cervicalgia, muscle spasm and cephalgia. Dr. Avery later said she discussed the risk of soreness following chiropractic treatment with Don, but he did not sign a consent form, and the discussion was not noted in the records.

Dr. Avery also stated she did not discuss the risks of vertebral artery dissection and/or stroke with Don prior to treatment. Dr. Avery did not render treatment on the first visit, but she did adjust Don’s cervical and thoracic spine and provide electrical and ice therapy from Nov. 8–14, 2016.

The Day in Question

Don began vomiting and complained of blurred vision following a cervical manipulation on Nov. 14, 2016. Dr. Avery immediately telephoned 911 for an ambulance. Don was responsive to questions but complained of numbness in his right hand. Don’s blood pressure was 128/84.

The EMS team suspected an inner ear infection with a history of a low-grade fever and they transported him to the hospital for IV fluids and a CAT scan. According to EMS records, Don denied having chest pain but reported feeling dizzy and nauseous.

Don said his headache started a week earlier but was now global in nature and included neck pain. At the emergency room, a test of Don’s cerebrospinal fluid revealed no white blood cells or bacteria. Blood work was mildly abnormal, with an elevated white count. Since Don was showing improvement, he was discharged at 3 p.m. that day with instructions not to work for two days. He was given prescriptions for Lortab, Phenergan and Doxycycline and was directed to follow up with his primary health care provider.

Patient Goes to Neurological Clinic

Instead of going to see his family doctor, however, Don presented at a local neurological clinic on Nov. 15, 2016, for evaluation of the following symptoms:

  • Numbness and tingling in the right side of his body, including his head
  • A slight occipital headache and vision that felt “off”
  • Dizziness and a wave-like sensation going through his right arm and leg
  • Sluggishness when trying to talk.

Don denied past injuries to his head and neck or that he was experiencing bowel and bladder incontinence. He was referred for MRI and MRA imaging to evaluate for the possibility of a spinal cord transection and a vertebral artery dissection.

When he went for his diagnostic studies on Nov. 17, 2016, Don still had numbness on the right side of his body, including his face, arm and leg. An MRI of his neck was read as showing slight spondylosis at C3- C4, but otherwise appeared normal. However, an incidental finding on the MRI of his neck showed a spot in the cerebellum, which prompted further MRI testing. An MRA of his neck showed normal anterior and posterior circulation. The treating neurologist referred Don for an MRI of his head and told him to return after that.

The MRI report indicated his left thalamic temporal lobe and the right cerebellar had multiple spots in a showering effect. The MRA of his neck did not show dissection. The MRI of the cervical spine was normal. The neurologist recommended a battery of stroke/hypercoagulable state tests.

Finally, a Diagnosis

By Dec. 8, 2016, Don was diagnosed as having had a posterior circulation stroke. When the neurologist saw him that day, Don complained of pain in the right side of his neck that shot up behind his ear and down his right arm. He also had numbness and tingling. The neurologist noted droopiness on the right nasolabial fold, slight decrease of vibration and pinprick in the C3-C4 dermatomal distribution in the upper right arm. Don also had decreased reflexes in his right side. In spite of these numerous complaints, his strength testing was reasonably good, and he told the neurologist he was ready to go back to work.

From December 2016 through February 2017, Don continued to see the neurologist for neck pain, deficits in his right arm and leg, spasms in his abdominal and chest wall, C3-C4 spondylosis and marked fatigue. By April 2017, Don was reporting numbness and tingling in his left toes, numbness on the right side of his tongue, and an itching in his arm that couldn’t be relieved by scratching. The neurologist was disappointed that Don’s problem of numbness and pain wasn’t resolving.

By May 2017, Don was also experiencing depression. In June of that year, he saw the neurologist again, this time reporting eye pain.

A month later, he reported two new problems: 1) waxing and waning numbness and tingling in the left index finger and thumb with occasional shoulder pain, and 2) numbness and tingling in his left great toe that waxed and waned. The neurologist related these symptoms to C5-C6 pathology and the problem in the great toe to the beginning of an L5 radiculopathy. He further said the stroke was caused by the DC’s adjustment.

Don also told his neurologist he had chronic problems with balance, memory and recall, vision, body numbness and pain on his right side, difficulty with coordination, extreme fatigue, poor concentration, right-hand fine motor skill deficiency, right-side muscle spasticity, sexual dysfunction and depression.

Lawsuit Ensues

Don Carroll retained a chiropractor-turned-attorney to represent him in a negligence lawsuit against Dr. Avery. Among the allegations were that Dr. Avery:

  • Rendered chiropractic treatment in a careless and negligent fashion by failing to properly examine him
  • Failed to create and keep complete and accurate records
  • Failed to diagnose his true condition
  • Did not obtain his informed consent because she didn’t discuss or explain the risks of spinal manipulation.

The NCMIC-assigned defense team began the process of obtaining the pre- and post-chiropractic treatment clinical records. After they were confident they had received a majority of these, they took Don’s deposition.

Don testified that Dr. Avery never discussed the risks of chiropractic treatment with him. He went on to say that after his alleged stroke, he conducted research on the Internet and learned that vertebral artery injury was linked to chiropractic treatment. He claimed that had he been informed about this risk, he would not have had chiropractic treatment and instead would have undergone physical therapy.

Don further testified that ever since the incident in Dr. Avery’s office he experienced right-side numbness and weakness, as well as extreme fatigue. He claimed that he would get home on a Friday evening, fall asleep in his clothes on a couch or easy chair and remain there until Monday morning. He would take his meals on the couch or in a chair and wouldn’t get up even to shower or change his clothes. Don slept that way almost every night rather than sleeping in a bed—once he fell asleep, he couldn’t be roused. In contrast, Don’s medical records indicated he had bouts of insomnia and took medications to induce sleep.

Although Don was able to go back to work after the incident in Dr. Avery’s office, he testified that he was too fatigued to perform his normal job functions as a plant production superintendent. The plant shut down due to an economic downturn, and after being unemployed and living off his severance package for a time, Don attempted to work as a salesperson for his in-laws’ company. However, he soon quit because he felt his condition was too much of a hindrance to the company.

Experts Testify

Don’s attorney retained a chiropractic expert well known for his sarcastic, arrogant and overreaching demeanor. At the deposition, this expert snidely criticized Dr. Avery’s care, including her failure to take a proper history and keep appropriate records, as well as her missed diagnosis of the patient’s vascular problems.

A board-certified neurologist retained by Don’s counsel testified that he had a vertebral artery dissection and stroke as a result of the chiropractic manipulation performed by Dr. Avery on Nov. 14, 2016. This neurologist was not able to detect a dissection on the imaging studies. However, he concluded there must have been a stroke based on the change in the location, as well as the nature and intensity of the headache and neck pain immediately before and after Dr. Avery’s treatment.

This neurologist expert also critiqued the Cassidy study, which says the risk of stroke associated with seeing a chiropractor is no greater than the risk associated with seeing a primary care doctor. This expert contended the Cassidy study failed to identify whether patients included in the study had strokes related to dissection. In other words, all the patients who had strokes after seeing their primary care doctors could have had strokes from atherosclerosis or high blood pressure, while all the patients who had strokes after seeing their chiropractors could have had strokes from vertebral artery dissections.

The neuroradiologist retained by Don’s attorney was an in-house physician for a chiropractic group. She testified that the reason there were no abnormalities on the Nov. 14, 2016, CT scan of Don’s brain was that the imaging was done too early to pick up brain infarcts. The plain films of the cervical spine from that day indicated early arthritic changes at C3-C4 and inflammation in the area.

This doctor pointed to the area on the digital images of the Nov. 17, 2016, MRA where she believed the dissection occurred. She opined that Don’s dissection originated in the vertebral artery at the level of the carotid bifurcation—between C3 and C4.

When this neuroradiologist expert was deposed, she backtracked somewhat from her statement that “traumatic and iatrogenic VA dissections like Don’s usually involve the distal segment between C2 and the skull base.” She conceded that his dissection probably originated between C3 and C4, and rotation at that level probably could not injure the vessel.

Defense Team Counters

The NCMIC defense team obtained the following experts who testified that Dr. Avery not only met the standard of care, but also, at times, exceeded it:

  • Two DCs with extensive academic experience who had lectured on vertebral artery issues with cervical spine adjustment and,
  • A DC who practiced in the same vicinity of Dr. Avery and was a past president of his state’s chiropractic association.

What’s more, the defense team obtained a neurosurgeon with extensive credentials and familiarity with chiropractic treatment to support Dr. Avery’s care. It was his opinion that the neuroradiologist expert obtained by Don’s attorney was incorrect and seemed oblivious about basic issues of brain and spinal anatomy.

Because the defense team strongly suspected that Don was exaggerating his disabilities, they decided to conduct surveillance on him just prior to trial. Don was observed operating a large riding lawn mower in his yard and using a weed eater to cut the grass and shrubs. Later, Don parked the mower back on the trailer, strapped it down and drove away. This was significant because Don had signed a form verifying he had resigned from his last job due to continued disability.

The case then went to court and the surveillance footage was shown to the jury. Don and his wife were called to testify. Both merely attested to Don’s extensive medical history, and Dr. Avery’s attorney didn’t believe they came across as very sympathetic to the jury.

The only other live witness put on the stand for the plaintiff, was the chiropractic expert who came across as rude and evasive. The jury appeared to smirk at this expert’s testimony. At one point, the judge cleared the jury and threatened to declare a mistrial if the chiropractic expert didn’t respond to defense counsel’s questions. All of the remaining experts for the plaintiff provided videotaped testimony in keeping with their depositions.

Each of the defense experts testified in person. All provided testimony that was consistent with the opinions they had set forth earlier in their depositions. Following this testimony for the defense and closing arguments, the case went to the jury for deliberations. After three hours the first afternoon and four hours the following morning, the jury reached a verdict in favor of Dr. Avery. NCMIC’s costs to defend Dr. Avery were more than $365,000.

Perspectives from the Defense Attorney on the Case

By Dale A. Curriden, Esq., Van Winkle, Buck, Wall, Starnes & Davis, Asheville, North Carolina

Approach to Trial Preparation

“NCMIC was fully supportive of a very aggressive defense…including extensive surveillance of the plaintiff as soon as it appeared his allegations of damages and disabilities were exaggerated.”

Obtaining the Best Expert Witnesses

“NCMIC was also fully supportive of hiring top quality experts. In this case, it involved more than just saying the doctor’s care was within the standard of care. We had good experts to establish that, but we also had to have very good experts to refute the whole theory that cervical adjustments cause vertebral artery dissections and strokes.”

No Pressure to Settle

“NCMIC did not coerce the doctor to settle, and in fact, given the facts of this case, they were very much in favor of taking this all the way through trial and not capitulating and just writing a check to make the plaintiff go away. According to the initial reading of the MRA, there was no dissection apparent on the imaging. And the surveillance indicated the patient wasn’t injured or damaged as badly as he claimed.”

NCMIC Compared to Other Malpractice Companies

“Many companies, in my experience, look at things more in the short term and economically. [In contrast, I’ve found] NCMIC would much rather pay for an aggressive defense and keep the doctor’s name clean. [If] there is a strong enough defense, and the doctor feels strongly that they haven’t done anything improper or negligent, then NCMIC is willing to take it as far as they need to prove that.”

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