Casual Office Setting Leads to Lawsuit and Board Complaint

Read on for a case study from defense attorney Mandi Karvis. It is a compelling case study with important takeaways for our doctors.

Posted in Risk Management on Tuesday, March 3, 2020

Sherry Scarpello presented to the office of David Smithfield, DC, with complaints of low back pain. Due to her work schedule, Mrs. Scarpello was often the last patient of the day.

Dr. Smithfield prided himself on offering patients an engaging, laid back atmosphere, and the office staff were tasked with making all patients feel especially welcomed. Dr. Smithfield had a charismatic personality—he was the type of person who would have a nickname for everyone. What’s more, he would frequently call his male patients “buddy” and his female patients “honey” or “darling.”

In keeping with his exceedingly personal style of care, Dr. Smithfield invited Mrs. Scarpello to join him and his office staff at a neighboring restaurant for happy hour after one late afternoon chiropractic appointment. Mrs. Scarpello accepted the invitation and imbibed in a few cocktails with the group.

During the next few appointments, Mrs. Scarpello said she felt slight improvement in her low back pain. She appreciated the care Dr. Smithfield provided so much that she referred her husband as a patient.

After Mrs. Scarpello had undergone a series of adjustments and indicated she was still feeling some soreness, Dr. Smithfield called her directly from his cell phone one evening to see how she was feeling. Mrs. Scarpello said she felt her back pain was improving, and she wanted to continue receiving chiropractic care.

Mrs. Scarpello continued to socialize with Dr. Smithfield and the office staff after receiving chiropractic care, which continued to be scheduled for the last appointment of the day. As Mrs. Scarpello now had Dr. Smithfield’s cell phone number, she began to text him whenever she had questions or wanted to reschedule her appointments.

Initially, these text messages were related to Mrs. Scarpello’s chiropractic treatment or scheduling, but over time, they became more personal. Additionally, Mrs. Scarpello and Dr. Smithfield had numerous telephone conversations. In total, Dr. Smithfield and Mrs. Scarpello exchanged more than 500 text messages and over 100 phone calls during the course of her four months of care.

When Mr. Scarpello confronted his wife, Mrs. Scarpello told him that she and Dr. Smithfield were having an affair. Mrs. Scarpello then called Dr. Smithfield and told him that her husband had found out they had “been together.” Dr. Smithfield denied the affair and told Mrs. Scarpello she was crazy. Unbeknownst to Dr. Smithfield, Mrs. Scarpello recorded this conversation.

Shortly thereafter, Mrs. Scarpello and her husband filed a lawsuit and a licensing board complaint against Dr. Smithfield. The allegations were that Dr. Smithfield had engaged in an improper relationship with a patient and that he provided unnecessary chiropractic treatment to Mrs. Scarpello for the sole purpose of furthering their inappropriate relationship.

Dr. Smithfield denied having an inappropriate relationship with Mrs. Scarpello. However, he did acknowledge he considered her a friend with whom he would text and talk on the phone about personal issues.

The Lawsuit

The case against Dr. Smithfield was ultimately tried before a jury. The case centered on whether there was an improper doctor/patient relationship between Dr. Smithfield and Mrs. Scarpello rather than whether the actual provision of chiropractic care was negligent.

During testimony, the jury learned about the hundreds of text messages and after-hours phone calls between Dr. Smithfield and Mrs. Scarpello. Additionally, the plaintiff attorney played the recorded telephone conversation between Dr. Smithfield and Mrs. Scarpello numerous times.

The jury also heard extensive testimony about the friendly and casual environment in the office, which the plaintiff attorney contended was unprofessional for a health care setting. With multiple examples shared for all to hear, the case played out like an episode of a reality television show.

Ultimately, the jury returned a verdict in favor of Mr. and Mrs. Scarpello for $10,000. It seemed that the jury believed that Dr. Smithfield had engaged in a consensual, yet inappropriate, extramarital affair with his patient. The verdict appeared to be the jury’s way of sending the message that this type of behavior was completely unacceptable.

Additionally, Dr. Smithfield had to defend himself against a board complaint. Dr. Smithfield had to explain why he had been communicating so frequently with a patient. He was ultimately placed on probation and required to complete several continuing education courses on professional boundaries.

An Important Lesson for All DCs

The case should be a cautionary tale for all licensed professionals. There were many red flags about the manner in which Dr. Smithfield treated Mrs. Scarpello, and they were all ignored. These included:

• Mrs. Scarpello would often insist on having the last appointment of the day so she would be there when the office closed down.
• The patient would linger while the staff closed down the office.
• Mrs. Scarpello initiated personal text messages with Dr. Smithfield.
• Some of Dr. Smithfield’s staff later admitted they thought that Mrs. Scarpello was flirting with Dr. Smithfield.

Chiropractors are particularly vulnerable to allegations of improper boundaries and touching; this in part due to the nature of the practice of chiropractic. The practice itself is literally “hands on,” which can lead to allegations of improper touching when a patient isn’t properly informed before treatment.

Furthermore, patients see their chiropractor more frequently and for longer periods of time than other kinds of health care professionals. People may see their chiropractor several times a week for a number of months; whereas, they might see other types of health care providers on a quarterly or annual basis.

The frequent contact between chiropractors and patients can dovetail into engaging in casual banter and exchanging personal information. However, there is a fine line and delicate balance between being friendly and personable with your patients and crossing the line into the inappropriate.

The most important lesson from this situation is that the doctor must realize when a patient’s behavior is crossing the line and how to enforce appropriate boundaries.

In today’s day and age, making yourself accessible to patients is important. However, making yourself available to patients by cell phone or through social media can be troublesome.

It is one thing to communicate with a patient about scheduling but another thing to engage in personal banter. The difficulty becomes where to draw the line between a friendly, professional “Yes, I’d be happy to reschedule your appointment. Have a great day!” and the casual “What are you up to today?”

There is no bright-line rule for communicating with patients via your cell phone or social media messaging. The safer and more professional thing to do is to instruct patients to call or e-mail your office about scheduling issues.

Bottom line: you, the professional, are the one who is responsible for ensuring interactions with your patients remain professional. Your licensing board and a jury will ultimately hold you responsible for any lapses of professionalism. This includes consenting adult patients.

An allegation of this nature can be very costly to licensed professionals. It can damage their reputations and impair their ability to practice, not to mention negatively impact their personal lives.

All names used in this case study are fictitious to protect patient and doctor privacy.

Mandi Karvis is a shareholder with the firm of Wicker Smith in Phoenix, Arizona. She has been practicing for almost 20 years and has been representing health care providers for 16 years. A significant portion of her practice involves representing chiropractors in malpractice litigation and licensing board matters. Ms. Karvis has handled several lawsuits and board complaints that involve allegations of sexual impropriety against chiropractors. She has tried cases all over the country involving that type of allegation and has a unique perspective on handling these types of cases. Ms. Karvis has also lectured on the topic to attorneys and health care professionals.