Credibility Issues Cut Both Ways
The patient, 49-year-old Jack Orson, was first seen by Charles Kently, D.C., on February 7, 2014. Mr. Orson had been involved in a motor vehicle accident on November 30, 2013, in which the passenger door was struck broadside at 25 mph. He was treated and released from the ER with a diagnosis of soft tissue injuries following an examination and diagnostic imaging studies. When his neck and low back pain did not resolve after about 60 days, he decided to seek chiropractic care.
Posted in Risk Management on Monday, July 31, 2017
Mr. Orson reported to Dr. Kently that he suffered daily from occipital headaches with a pain level of 6 out of 10, as well as stiffness and pain in the low back, also rating at 6 out of 10.
Dr. Kently performed an orthopedic and neurologic exam and found decreased range of motion and tenderness on palpation in Mr. Orson’s cervical area. The neurologic function of the upper extremities was intact, but in the lumbar region Dr. Kently found decreased range of motion and tightness and tenderness on palpation. Additionally, Dr. Kently noted minor degenerative changes in the lumbar region based on the MRI study obtained on the day of the accident.
Dr. Kently developed a treatment plan for Mr. Orson to be seen two times per week with treatment to include cryotherapy, stretching, EMS to the cervical area, lumbar traction and cervical manipulation. Dr. Kently discussed all benefits, risks and alternatives to care with the patient, and Mr. Orson consented to the treatment.
Mr. Orson received chiropractic care seven times without incident. Although he reported some improvement in his low back, there was little change in his cervical area and he continued to have daily headaches.
During his eighth visit and approximately 30 days after his initial treatment, Mr. Orson reported 60 percent improvement of his low back problems. However, his neck pain had increased slightly in the few days prior. Dr. Kently performed a thorough reexamination involving neurological, range of motion and orthopedic testing during the visit, noting few changes from the initial exam.
During Mr. Orson’s next visit on March 6, 2014, he reported increased neck pain and additional radiating pain into his left arm. Dr. Kently continued with the original treatment plan, and Mr. Orson left the office following high-velocity, low-amplitude adjustments.
Patient Seeks Emergency Care
That evening, after experiencing the most intense neck pain he’d ever had as well as numbness and weakness in his left arm and hand, Mr. Orson went to the local emergency room where he was hospitalized. During the early morning of March 7 while he was in the hospital, Mr. Orson reported that he was unable to urinate, and he was catheterized. He had also developed left leg weakness and numbness. The appearance of these symptoms prompted the hospital staff to transfer Mr. Orson to a regional trauma center for further testing and care.
At the trauma center, Mr. Orson was immediately seen by a neurologist. Suspecting a compression of the C5–C7 area, the neurologist ordered an MRI of Mr. Orson’s cervical spine, which showed a left-side posterior extradural hematoma at C5 with localized cord compression. Mr. Orson was now unable to move his left leg, and he was prepped for an emergency hematoma evacuation due to the high risk of paralysis.
A decompressive laminectomy at C4, C5 and C6 with an extradural hematoma evacuation was performed just after noon on March 7. Mr. Orson made good progress in regaining the use of his left arm and leg, but he remained weak and had to use a walker to ambulate. Mr. Orson continued to have urinary retention and required catheterization and bladder training upon discharge on March 14, 2014.
On November 6, 2014, eight months to the day after the last chiropractic treatment was provided, Dr. Kently was served with a lawsuit filed by Mr. Orson and his wife. The suit alleged that Dr. Kently was negligent in his examination, diagnosis, care and adjustment of Mr. Orson’s cervical spine. As a result, Mr. Orson (now the plaintiff) was left with spinal cord damage, bleeding and paralysis.
Several months went by until February 26, 2015, when the plaintiff’s attorney presented to the NCMIC-retained defense attorney a settlement demand package of $5.75 million for all damages, past and future, sustained by Mr. Orson and his wife. Mr. Orson claimed that he was unable to resume his employment as an office manager, which was the majority of his future damages. However, it was revealed that Mr. Orson was receiving a sizable disability benefit through his former employer, which included medical insurance and a monthly disability check. Because Mr. Orson was receiving this compensation, the defense team requested that any settlement/judgment be decreased by that amount.
Not long after receiving the settlement demand, Dr. Kently heard that Mr. Orson was out of town on a hunting trip. Dr. Kently mentioned this information to his attorney who employed an investigator to determine if Mr. Orson’s day-to-day activities were restricted. The investigator was able to capture surveillance video of the plaintiff walking with a normal gait, driving around town and carrying items without problem.
Based on discovery laws in the state where the case was venued, the defense was required to disclose during discovery the disability package information and the surveillance video footage. Consequently, the plaintiff’s attorney reduced his demand to the doctor’s $1 million policy limits and subsequently never reduced it.
Defense Experts Weigh In
The NCMIC defense team assembled a panel of experts including a Doctor of Chiropractic, a neurosurgeon and a neuroradiologist. After evaluating the patient’s records of the exam, diagnosis and treatment protocol, the chiropractic expert opined that Dr. Kently’s treatment met the standard of care.
The neurosurgeon stated that the chiropractic manipulation was appropriate and was certainly not contraindicated. Further, he opined that a D.C.’s manipulations would not cause a bleed and most bleeds are spontaneous.
Additionally, the defense neuroradiologist expert testified that it was his professional assessment that the hematoma was likely several days old and was already developing when the patient reported neck pain increase during his seventh chiropractic visit.
Another important element for the defense was that the post-operative MRI showed complete recovery, which was not consistent with Mr. Orson’s complaints of residual problems. All of the defense experts—as well as one of the plaintiff’s own experts—agreed that an extradural hematoma is an incredibly rare event and not one associated with chiropractic manipulation.
As for the testimony of the doctor himself, Dr. Kently explained his diagnosis and approach to chiropractic care in an articulate and professional manner. Nonetheless, the plaintiff’s attorney was able to illicit the following two issues from Dr. Kently that he had not shared with his defense counsel:
- Dr. Kently had appeared before his state board a few years earlier for an issue about his character that resulted in the board reprimanding him and mandating that he take continuing education courses. Because Dr. Kently had not revealed this information to his defense counsel, the plaintiff’s attorney was able to use it against the doctor.
- Dr. Kently did not note in his records nor did he advise his defense team that prior to litigation he had given Mr. Orson a copy of his records. The records provided to the plaintiff’s attorney during discovery were found to be slightly different, which concerned the defense team. Altered treatment records are often a major detriment to the defense of a malpractice case. Fortunately, the slight discrepancy was revealed to have been caused by a software update.
Case Goes to Trial
When the case went to trial in April 2016, the plaintiff’s attorney attempted to portray cervical manipulations as inherently dangerous. He presented an animated video to the jury that depicted cervical adjustments as forceful and the cause of injury. The plaintiff’s attorney also used unscrupulous and borderline harassing tactics, which included trying to solicit other patients who were “injured” by Dr. Kently.
Following testimony from all witnesses, the plaintiff’s attorney asked the jury to award Mr. Orson an amount in excess of $10 million with the hope that the jury would award them something as a compromise.
After a trial of 10 days, the jury began deliberations late in the afternoon and returned the following day. After deliberating for one hour and 45 minutes that morning, the jury returned with a defense verdict. Due to a state-specific statute, NCMIC was able to recover $75,000 of its litigation costs directly from the plaintiff as a result of the defense verdict.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
The Right Protocol
Adhering to the standard of care is often a critical element in a defense verdict. In this case, Dr. Kently’s examination, evaluation, assessment and clinical documentation were thorough and appropriate. Additionally, Dr. Kently had obtained the patient’s MRI, which demonstrated his careful monitoring of the patient. As a result, the defense experts were able to opine that Dr. Kently didn’t deviate from the standard of care.
Honesty Is the Only Policy
Doctors should never keep important information from their defense team no matter how embarrassing or offensive the matter. Defense counsel is appointed by NCMIC to represent your best interests, not those of NCMIC. Without full and honest disclosure, a defense attorney is not able to mitigate any issues exploited by the plaintiff. In this case, Dr. Kently committed a serious sin of omission by not telling his defense team about his past board allegation.
Twists and Turns
Rarely is there one “smoking gun” in a malpractice case, but this case did provide several aha moments. The video surveillance was devastating to the plaintiff’s case because it revealed he claimed injuries beyond what he actually experienced. Also harmful to the character and credibility of the plaintiff was the fact that he failed to disclose his disability income, which would diminish the value of his initial demand. In all probability, these credibility gaps were important to the jury finding for the defense.
Character, preparation, credibility and honesty are all important in the courtroom. A case with excellent clinical care and questionable doctor credibility could have a very different outcome than one in which the clinical care is questionable and the doctor’s credibility is outstanding. In this case, the doctor demonstrated quality clinical care and was an excellent witness on his own behalf.
Jennifer Boyd Herlihy is a healthcare defense lawyer with the firm of Adler / Cohen / Harvey / Wakeman / Guekguezian, LLP, located in Boston, Mass., and Providence, R.I. She represents chiropractors and other healthcare providers in matters related to their professional licenses and malpractice actions. The firm’s website is www.adlercohen.com.