Even in a difficult case, malpractice insurance can provide the doctor with various legal options.
Posted in Risk Management on Monday, February 7, 2022
Margaret Roth, DC, was in private practice with Toni Matson, DC, in northern Colorado. They were equal shareholders of a closely held corporation known as Roth Chiropractic Care, Inc. They never practiced as a partnership, although most of their written materials—including their letterhead, outside signage and Yellow Page advertising—referred to Roth & Matson Chiropractic.
Dr. Roth saw Ted Green, age 28, on several occasions in 2015 for a variety of back ailments for which he received chiropractic treatments. On Jan. 8, 2016, Ted came to Dr. Roth's office for an appointment at 3:45 p.m. He was initially seen by Sarah Cooper, the office manager and chiropractic assistant, who recorded the following history: "Twinge in small of back. Complaints of headaches that last 24 hours. When turning neck, 7/10 pain level." Dr. Roth then saw Ted and confirmed his symptoms began the day before and were insidious in onset. Ted's principal complaint related to his headache and neck pain.
Ted was taken to another room for electrical stimulation and heat pack therapy. He returned to a treatment room about 10 minutes later. Dr. Roth first adjusted Ted's sacrum using a Thompson drop table and then adjusted his cervical spine at C5-C6 using the diversified technique. With Ted lying face down and Dr. Roth standing on his left side, Dr. Roth slightly rotated Ted's neck and delivered a light thrust in his lower cervical region. There was a slight "pop" after the adjustment, and Ted said he felt better and that his headache was gone.
Patient's Condition Changes
Dr. Roth walked with Ted to the front counter, and Ted left the office in no distress. As Ted approached his car, he began to feel ill. He called his wife, Ann, and asked her to come pick him up. At 4:46 p.m., Ann, who had not yet arrived, telephoned Dr. Roth's office and informed the staff that Ted was in the parking lot and not feeling well. One of Dr. Roth's employees went to the parking lot and helped Ted return to the office. Dr. Roth immediately examined Ted and noticed he looked a little pale. Although he seemed alert and spoke without difficulty, Ted reported he was feeling dizzy and had vomited in the parking lot.
Dr. Roth initially considered that Ted had suffered an arterial injury, but Ted did not exhibit stroke-like symptoms. What's more, his dizziness and vomiting had disappeared. Therefore, Dr. Roth ruled out that Ted was having a stroke. Instead, because it was flu season, Dr. Roth thought it likely that Ted had a virus.
Dr. Roth stayed with Ted while they awaited Ann's arrival. Before Ann arrived, Sarah Cooper informed Dr. Roth that another patient was unhappy about the delay in being treated, so Dr. Roth left Ted to speak with that patient. Just as she was returning to Ted, Ann arrived at the office and entered Ted's room with Dr. Roth following steps behind her. In the 2-3 minutes Dr. Roth was outside Ted's room, he had moved to the floor and vomited.
Dr. Roth asked Sarah Cooper to call a family physician who had an office in the same complex, but his office was closed. As Dr. Roth attempted to help Ted up, the patient slumped and started to shake. His pupils dilated, his respirations diminished, and his pulse started racing. Dr. Roth immediately asked Sarah Cooper to call 911. This call was placed at 5:29 p.m.
When the EMS team arrived at Dr. Roth's office at 5:35 p.m., Ted was still shaking. The EMS team intubated Ted to protect his airway, moved him onto a back board, placed him in a cervical collar and took his blood pressure (225/200).
Patient's Care at Hospital
Ted was transported to Mountain West Hospital by EMS, arriving at the ED at 5:57 p.m. Sam Kramer, MD, was expecting Ted's arrival. He was aware that Ted was unresponsive, had a seizure with a highly elevated blood pressure, and had been intubated in the field. Ann Green told Dr. Kramer that Ted had neck discomfort for the last day or two and had a headache for the past 24 hours.
Dr. Kramer's initial impression was an infection disorder, like meningitis, but he also included subarachnoid hemorrhage and CVA on his differential. Dr. Kramer instructed an EMS squad member to let Dr. Roth know he suspected meningitis. Because of the infectious nature of meningitis, Dr. Kramer recommended that Dr. Roth's office be washed down and anyone who was exposed to Ted be started on Cipro.
That evening, Dr. Roth and Sarah Cooper completely sanitized the Roth & Matson office. Dr. Kramer's workup of Ted included laboratory studies, an emergency head CT scan, which was normal, and a lumbar puncture to investigate a possible infection in the spinal fluid. Dr. Kramer started Ted on high dose antibiotics as a precaution against an infectious etiology.
A friend of the family and Ann Green's godfather, Vince Mitchell, MD, was an internal medicine doctor with hospital privileges at Mountain West Hospital. On Jan. 8, 2016, sometime around 7:00 p.m., Ann's father called Dr. Mitchell and asked him to see Ted in the ED of the hospital. Dr. Mitchell agreed and arrived at the hospital around 7:30 p.m. Dr. Mitchell found Ted comatose, unresponsive to painful stimuli and with fixed and equal pupils. He was intubated and breathing with the assistance of a ventilator.
Physicians Initially Diagnose Infection
After conferring with Dr. Kramer, Dr. Mitchell agreed that an infectious etiology was the likely origin of Ted's condition. He reached this conclusion because of Ted's history of flu-like symptoms along with recent onset of seizure activity. He did not consider stroke a strong possibility. Both doctors felt an ICU admission was warranted, along with a neurology consult.
Dr. Mitchell issued preliminary orders at 8:20 p.m. for neurology and pulmonary consults, an antibiotic (Rocephin), and an anti-seizure medication (Dilantin). Although he ordered the neurology consult, Dr. Mitchell did not speak with Dr. Ingrid Olsen, the neurologist, as the ED physician typically initiates these discussions. After speaking with Ann and her family, Dr. Mitchell left the hospital around 9:00 p.m.
Dr. Kramer called Dr. Olsen at around 8:30 p.m. on Jan. 8, 2016, and told her about the 28-year-old male with a two-day history of headache and flu-like symptoms in the ED. He shared that this patient had a new onset of seizure without evidence of a cerebral bleed, based on a head CT scan. However, Dr. Kramer did not tell Dr. Olsen about Ted's recent neck manipulation or that he had been transported to the hospital via EMS. Nor did Dr. Kramer tell her about the patient's blurred vision, vomiting after a neck manipulation or the EMS blood pressure reading of 225/200. Because Dr. Kramer didn't ask Dr. Olsen to evaluate Ted for a life-threatening condition, Dr. Olsen was under the impression that Ted's condition was stable.
Evaluation Reveals True Explanation
Dr. Olsen first saw Ted in the ICU at around 12:50 a.m. on Jan. 9, 2016. She found Ted to be unresponsive with a straight stare. She learned about the chiropractic adjustment from the nursing staff, and by that time, was aware the spinal tap results were negative. Dr. Olsen telephoned Ann Green at around 1:00 a.m. to obtain additional history. Ann was able to confirm her husband's symptoms began between 5:10 and 5:15 p.m. the preceding day.
Because the symptoms had been ongoing for several hours, Dr. Olsen felt traditional interventions, such as the initiation of tPA or stenting and angioplasty, were unavailable.
Dr. Olsen continued Ted on Dilantin, and she ordered a cardiac workup, a neck MRA and a Heparin drip, 800 units per hour, to cover "for the possibility of a thrombus/dissection in the vertebral basilar distribution."
At 4:22 a.m. on Jan. 9, 2016, the nursing staff contacted Dr. Mitchell because of an increase in Ted's temperature. Dr. Mitchell ordered a Tylenol suppository along with a cooling blanket for temperature control.
Dr. Mitchell arrived at the hospital at 5:50 a.m. After examining Ted and seeing Dr. Olsen's note about possible stroke, Dr. Mitchell ordered a holding of the Heparin until an MRA and MRI could be obtained STAT. For unknown reasons, the MRA/MRI studies were not done on a STAT basis. When the results came in later that morning, they confirmed a vertebral artery dissection with evidence of a stroke. Dr. Mitchell then issued an order at 11:45 a.m., which said, "restart Heparin@ previous rate."
Ted was ultimately diagnosed with an acute vertebral and basilar thrombosis, a brain stem infarction and a "locked in" syndrome. The stroke left him a quadriplegic, incontinent of bowel and bladder, unable to speak, limited in his ability to swallow and needing to be tube fed.
Sixteen months to the day after Ted's incident at Roth Chiropractic Care, Inc., Ann Green and Ted, who was able to communicate only through blinking, filed a lawsuit against the following parties:
- Margaret Roth, DC
- Roth & Matson Chiropractic
- Roth Chiropractic Care, Inc.
- Mountain West Hospital
- Sam Kramer, MD (the ED physician)
- Sam Kramer, MD, Inc.
- Vince Mitchell, MD (an internal medicine physician who was Ann Green's godfather)
- Ingrid Olsen, MD (the neurologist) and her practice
- The radiologist who interpreted Ted's imaging studies and his practice
- The several rehabilitation facilities where Ted received care as a result of his stroke
The complaint alleged that all the defendants were negligent for the pain and suffering Ted endured and for causing Ted to be permanently injured and totally disabled. Ann Green contended that she had suffered the loss of consortium and services of her husband as a result of the defendants' negligence.
The complaint singled out Dr. Roth for not disclosing the material risks and potential dangers involved in a chiropractic manipulation. The complaint alleged that a reasonable person in Ted's position would have declined the treatment had Dr. Roth brought the material risks and possible dangers to light. By not obtaining Ted's informed consent for treatment, the plaintiff contended that Dr. Roth applied an unlawful application of force and that her conduct was "willful and wanton." Consequently, the complaint contended that punitive damages should be assessed.
Practice Brought Into Suit
Roth Chiropractic Clinic, Inc., the corporation of which Margaret Roth and Toni Matson each owned 50%, was insured under Dr. Roth's professional liability policy, sharing her $1 million limits of liability. Dr. Roth's NCMIC-retained attorney filed a motion with the court to dismiss Roth & Matson Chiropractic as a defendant in this case, pointing out that Roth & Matson Chiropractic was not a legal entity. An affidavit from the Colorado Secretary of State supported this argument.
The plaintiff attorney responded by saying that Roth & Matson could be a common law partnership—the practice's materials and signage created a perception of a partnership—that is not required to be registered with the Secretary of State. He argued a common law partnership can exist between two individuals who agree to carry on an enterprise, contribute to the assets and share in the profits. One partner can be liable for the conduct of another even when the former was not involved in that conduct.
The plaintiff attorney bolstered this argument by informing the court that the clinic staff answered its telephone, "Roth and Matson Chiropractic," all of the outdoor signage at the clinic referred to "Roth and Matson Chiropractic," and the letterhead stationery and billing statements simply said "Roth & Matson Chiropractic" without any reference to the corporation. In short, the plaintiffs tried to establish the existence of a common law partnership to implicate the $1 million liability coverage of Toni Matson. The court denied the motion to dismiss Roth & Matson Chiropractic as premature, saying it would address the issue after discovery was complete.
Defense Brings in Array of Experts
The NCMIC defense team retained a neuroradiologist, who wasn't privy to the case's underlying clinical facts, to review Ted's imaging studies. In this physician's opinion, the most significant film was the Jan. 8, 2016, CT scan taken about 20 minutes after Ted's arrival in the ED. This image showed a darkness in the pons, which meant the region had considerable swelling. According to this consultant, this swelling was at least 12 hours old, and perhaps as old as 24 hours. This meant there was an ongoing process that was producing a pontine edema for several hours before Dr. Roth treated Ted Green on January 8.
The defense team also retained a chiropractic orthopedist. This expert consultant spent 12 years in private practice as a DC before spending 10 years as a full-time professor at a chiropractic college. He also held a research position, which has covered several chiropractic subjects, including the neurophysiology of spinal manipulation.
Based on Ted Green's historical complaints of headache and neck pain, confirmed by Dr. Roth's records and the ED records, this consultant believed Ted Green had a small dissection already in evolution when he saw Dr. Roth. No specific testing would have identified this problem.
This chiropractic orthopedist expert offered his opinion that a variety of events can cause an idiopathic dissection, and that generally it takes nine times the force created by a chiropractor to cause this injury. According to this consultant, this statistic is now well established in the literature, having been reported in the Symons (2001), Haldeman (2001) and Cassidy (2008) studies.
This consultant fully supported Dr. Roth's decision to retain Ted at the clinic until his wife arrived and he noted the following in terms of post adjustment care:
- Ted's wife was en route (according to Ann Green's cell phone records, she did not contact Dr. Roth's office until 4:46 p.m.).
- Ted was in relatively stable condition, other than exhibiting what appeared to be flu-like symptoms.
- Ann Green arrived at 5:25 p.m., the call to EMS was placed at 5:29 p.m., and Ted ultimately left Dr. Roth's office at 5:42 p.m., arriving at the hospital at 5:57 p.m.
This consultant believed that Dr. Roth's approach and this timetable was reasonable under the circumstances and not negligent, let alone a "conscious disregard" for Ted's health, as required for punitive damages. (Note: Punitive damages are not damages allowed to be covered by insurance in most states-including Dr. Roth's state of practice-because they are designed to punish.)
The NCMIC defense team also retained a vascular surgeon who specialized in the treatment of carotid and vertebral artery disorders. This vascular surgeon was of the opinion that roughly one-third of dissections were spontaneous, often without a specific cause. He had treated patients who had dissections after yoga, golf and tennis. According to this expert consultant, a patient typically would be free of symptoms from one hour to 3-4 days after a dissection. This condition is frequently misdiagnosed because of the rarity of the injury and the absence of significant trauma. This physician believed Ted likely had a pre-existing dissection that caused the neck pain and led him to go to Dr. Roth's office in the first place.
This consultant had seen "locked-in" syndrome many times before and believed it to be the "most dreadful" injury possible. It essentially makes a person a prisoner in his or her own body with no ability to move or communicate.
A neurosurgeon also reviewed this matter on behalf of Dr. Roth's defense, and his opinions mirrored those of the expert neuroradiologist and vascular surgeon. According to Dr. Roth's NCMIC-retained defense attorney, the neurosurgeon's presence as an expert witness was superb.
Assessment of the Case
On Aug. 31, 2019, 965 days after his injury, Ted Green died at the age of 31. The coroner signed the death certificate, describing the cause of death as natural, caused by acute bronchopneumonia, due to remote vertebral and basilar artery thrombosis.
The plaintiff's counsel (Ted and Ann's attorney) made repeated global settlement demands to resolve this matter on behalf of all defendants, starting at $21.5 million and ending at $7 million. The NCMIC-retained defense attorney responded to the $7 million demand by stating that NCMIC would not address a settlement demand that was seven times Dr. Roth's limits of liability. As expected, plaintiff's counsel then demanded $1 million in exchange for dismissing Dr. Roth, Dr. Matson, Roth Chiropractic Care, Inc., and Roth & Matson Chiropractic (the non-entity) from this lawsuit.
Dr. Roth had to consider several factors when evaluating this demand. Putting liability aside, Ted Green sustained a horrific injury that left him in a "locked-in" condition for 31 months preceding his death. He was 31 years old at the time of his death, employed as a purchasing agent earning between $54,000- $65,000 per year plus benefits. Lost earnings and lost fringe benefits were estimated to be $1,637,986. Medical expenses incurred during the 965-day period totaled $747,975.
Among other things, the noneconomic damage portion of this claim consisted of Ted's pain and suffering and Ann Green's loss of consortium claim. From the time of his injury up to his death, Ted was a quadriplegic with locked-in syndrome and incontinent of bowel and bladder. The plaintiff also asserted a claim for punitive damages against Dr. Roth, Roth Chiropractic Care, Inc., and Roth & Matson Chiropractic, which would not be covered under her insurance policy.
After much thought and deliberation, Dr. Roth gave her written consent for NCMIC to resolve this claim. She knew deep in her heart that she didn't injure Ted, but she couldn't risk the financial exposure of taking this case to trial, especially since her defense team estimated she only had a 50% chance of prevailing at trial. The reasons for this somewhat low likelihood of success were: the temporal relationship of Ted walking into a chiropractic office and being removed in an ambulance, plaintiff experts who would testify contrary to the defense experts' opinions, and the sympathy factor of a young man being "locked in" for more than 900 days.
Defense counsel was able to reduce the settlement demand by $50,000. Thus, the case on behalf of Margaret Roth, DC, Roth Chiropractic, Inc., and Roth & Matson Chiropractic resolved for $950,000. NCMIC's defense totaled $191,864. Since this settlement, NCMIC learned that the other defendants to this lawsuit settled their claims, but due to confidentiality, NCMIC is not privy to each party's respective settlement amount.
What Can We Learn?
By Jennifer Herlihy
Benefits of malpractice insurance. This case exemplifies how malpractice insurance can compensate a patient in the event of a dreadful, unexpected outcome, while still providing the doctor with various legal options. The doctors involved-with the exception of the radiologist who missed evidence of edema in the pontine area-provided care within acceptable standards. Yet, they all decided to settle. They were mindful of the emotional, physical and economic considerations involved in the case and realized a jury would likely look for a way to compensate Ted Green for his plight. They were also aware that the experts on both sides would provide directly conflicting testimony, leaving it up to the jury to decide on the clinical care. In this case, expert analysis of this evidence enabled Dr. Roth and her defense team to make sound decisions in spite of a very difficult situation.
Keep it separate. When doctors share a facility but have no legal relationship, they should ensure that they are protected to help defend against claims of vicarious liability. First, DCs wishing to enter into a business relationship should check for any requirements listed with their state board or licensing agency. Ideally, each practice under one roof should have its own name or a generic one to avoid confusion for patients. If this is not possible, the following safeguards can mean the difference between a dismissal and a legal challenge:
- Reception area signage that states each D.C. is a separate entity.
- Intake forms that clearly explain the doctors are not in practice together.
- Separate letterhead, stationery, business cards, sign-in sheets, billing, telephone lines and websites for each doctor.
- If doctors decide to share staff, charts, patients, etc., there should be distinct practice and referral guidelines, and the staff should be aware of these.
Follow state laws and board regulations. Generally speaking, partnerships, corporations and other legal entities should be drawn up by legal counsel and registered with the state of practice. In many states, doctors may not even conduct business under a name that is not the true name unless they file the trade name (dba) with the Secretary of State. Yet, it's common for friends, family and others to join forces, giving the appearance of a legally constituted entity when none exits. From workers' compensation to auto accident claims to personnel disputes to taxes, the framework of an entity has ramifications. In this case, the practice's signage and other visible identification created a perception of a partnership, which involved the entity in the claim.
Remember the clinical facts and informed consent. Even when a patient has been treated successfully, each new complaint demands a new set of clinical eyes to observe the current constellation of symptoms and consider the possibility of a new condition. As a patient who had been previously treated with good results, Ted Green most likely would have consented to the treatment. However, because his consent was not documented, the plaintiff's attorney was able to suggest to the jury that Mr. Green would have refused this treatment.
No good deed goes unpunished. Be very careful when you offer to treat a friend or family member. As this case illustrates, even if you are friends or related to the patient (e.g., Ann Green's godfather), you still may be named in a lawsuit if an expert opines your care was not appropriate.