Doctor Fails Documentation Test

Barb Smith, age 66, first saw Dale Wingalt, D.C., on November 21, 2007, for back and neck pain. Mrs. Smith told Dr. Wingalt her primary complaint was right-side low back, buttock and proximal thigh pain. She had moderate or severe pain when bending, lifting, carrying, climbing stairs, as well as when engaging in other daily activities.

Dr. Wingalt performed a physical examination that included range of motion and provocative maneuvers, as well as a neurologic assessment. He obtained lumbar spine X-rays that revealed anterolisthesis within L4 and L5 of approximately 5 percent, due to facet arthrosis.

No compression deformities were noted, but Dr. Wingalt did detect degenerative changes at varying degrees throughout Mrs. Smith’s lumbar spine. Additionally, Dr. Wingalt identified mechanical dysfunction and strain in Mrs. Smith’s cervical, thoracic and lumbar spine regions, as well as in her sacroiliac joint.

Dr. Wingalt performed manipulative therapy to the affected spinal regions, using diversified, Thompson and side-posture techniques. Mrs. Smith was treated 58 times between November 26, 2007, and May 28, 2008, with a favorable response.

In the latter part of 2008, Mrs. Smith was diagnosed with multiple myeloma. Howard Striker, M.D., an oncologist specializing in hematology, managed this condition. Additionally, in the early part of 2009, Mrs. Smith was diagnosed with osteoporosis, which was treated by her primary care physician.

Patient Falls

About one year later, on October 25, 2009, Mrs. Smith fell down the stairs at her home. After bouncing down three or four steps on her buttocks, she suffered pain, stiffness and soreness. Because Mrs. Smith experienced relief when she visited Dr. Wingalt in 2007 and 2008, she decided to return to his care the next day with hopes of alleviating her back pain.

On October 26, 2009, Dr. Wingalt performed a physical examination that included cervical and lumbar ranges of motion and provocative maneuvers, as well as a neurologic assessment. Mrs. Smith’s lumbar spine revealed significant loss of flexion, and she experienced severe pain on extension. She demonstrated moderate loss of range of motion in all planes of her cervical spine.

During this exam, Dr. Wingalt identified cervical, thoracic, lumbar and sacroiliac mechanical dysfunction and strain. Dr. Wingalt obtained X-rays, instructed Mrs. Smith to use heat at home and scheduled a follow-up visit to discuss the X-ray results and treatment plan.

This follow-up visit took place the following day, on October 27, 2009. Dr. Wingalt viewed the X-rays with Mrs. Smith, but he did not articulate his findings. He described a treatment plan that included performing manual manipulations and the Thompson technique, as well as using ice and heat.

Doctor Fails to Discuss All Therapies

Dr. Wingalt did not discuss with Mrs. Smith incorporating a massage roller table into her treatment plan. Despite this, immediately after the visit, Dr. Wingalt’s assistant escorted Mrs. Smith to another room and instructed her to lie down face up on the massage roller table.

The assistant activated the massage roller table and left Mrs. Smith alone in the room. Mrs. Smith experienced a deep intense sensation from the rollers, including excruciating pain in her low back and hip area. She called for help, but it was more than 5 minutes before Dr. Wingalt’s assistant turned off the machine. Nevertheless, Mrs. Smith returned for 19 more manipulative treatments between October 27, 2009, and December 2, 2009.

On December 9, 2009, Mrs. Smith placed herself under the care of Severus Lee, M.D., an orthopedist. Dr. Lee noted that Mrs. Smith had severe low back pain after falling down the stairs on October 25, 2009. Additionally, Dr. Lee noted that Mrs. Smith’s pain became very severe during the chiropractic roller massage treatment. Dr. Lee ordered an MRI, which revealed compression fractures at T11, L1 and L3, with marrow edema indicating acute fractures. Upon Dr. Lee’s recommendation, Mrs. Smith was scheduled for kyphoplasty on January 14, 2010.

Shortly after coming under the care of Dr. Lee but prior to surgery, the car Mrs. Smith was driving was sideswiped by another vehicle. She went to the emergency room at a local hospital, where X-rays showed fractured right ribs. She was given, and sent home with, a prescription for Percocet.

Despite the accident, Mrs. Smith proceeded to have the scheduled kyphoplasty surgery performed by Dr. Lee on January 14, 2010, to stabilize her compression fractures at T11, L1 and L3. Post-surgically, Mrs. Smith was able to ambulate independently without significant pain. She had normal neurological findings in her lower extremities.

Lawsuit Ensues

On November 7, 2011, Barb Smith sued Dr. Wingalt and his practice and Wellness Center. The lawsuit alleged the practice: provided negligent treatment that was the proximate cause of Mrs. Smith’s injury at T11, L1 and L3; did not obtain her informed consent; and relied on spine X-rays that were not diagnostic in quality.

The preliminary opinions from a chiropractic expert consultant, who only had the chart to review at that time, found the following:

  • Dr. Wingalt’s evaluation, treatment and management in 2007 and 2008 were reasonable, appropriate and within the standard of care.
  • Dr. Wingalt’s history, evaluation and assessment on October 26, 2009, were reasonable, appropriate and within the standard of care. Since Mrs. Smith responded favorably to previous treatment, it was reasonable for Dr. Wingalt to initiate the same or similar treatment.
  • Because Mrs. Smith was lying face up, there would be no compressive loads exerted on her spine. The roller mechanism reduces vertebral compression further by inducing inter-segmental extension. It is not mechanically, anatomically or physiologically possible for this device to cause a compression fracture.
  • Imaging studies from 2009 through 2011 indicated and confirmed Mrs. Smith was developing progressive pathologic compression fractures at multiple spinal levels.

Additional Clinical Records Reviewed

Approximately seven months after initial review of this matter, this chiropractic expert consultant evaluated additional clinical records, as well as deposition transcripts from Mrs. Smith and Dr. Wingalt’s testimony. This new information raised standard of care concerns, which included:

  • Dr. Wingalt’s admitted inaccuracies in his recordkeeeping. For example, he did not document details about the fall Mrs. Smith reported during her visit on October 26, 2009. Further, there was no documentation about Mrs. Smith’s adverse response to the roller table on October 27, 2009. In fact, his auto-generated notes indicated that she responded well to treatment and experienced improvement following therapy, which Dr. Wingalt admitted was inaccurate.
  • Dr. Wingalt testified at his deposition that he only performed soft tissue manipulations on Mrs. Smith. However, his treatment plan and date-of-service documents noted the use of the diversified technique, distraction therapy, Thompson technique, side-posture manipulations and the sacro-occipital technique. This note was computer generated.
  • Dr. Wingalt’s treatment plan estimated Mrs. Smith would require three to six dozen (36-72) adjustments over nine to 12 months. This type of extended treatment plan is inconsistent with any standard of care.
  • Therapeutic devices, such as massage roller tables, typically have kill switches that patients can access in case of an equipment malfunction or adverse event. Dr. Wingalt’s table either did not have a kill switch or it was not provided to Mrs. Smith.

This new information did not alter this consultant’s opinion that Mrs. Smith’s compression fractures could not have been caused by the roller table treatment. However, he conceded the therapy may have aggravated her symptoms.

Moreover, the consultant testified there was a much higher probability that Mrs. Smith’s compression fractures were a result of her October 25, 2009, fall and progressed over time due to her multiple myeloma. Unfortunately, the fact that Mrs. Smith’s pain exacerbated during the massage roller table therapy posed a problem for Dr. Wingalt because he failed to disclose its risks to Mrs. Smith.

Further Concerns for the Defense

A neuroradiologist who reviewed this matter on behalf of the defense agreed that Dr. Wingalt had poor recordkeeping, failed to obtain Mrs. Smith’s informed consent and was not knowledgeable about osteoporosis, osteopenia and myeloma. It was this professional opinion that the case would be difficult to defend.

Dr. Wingalt acknowledged his shortcomings in managing Mrs. Smith’s care. After conferring with counsel, he decided he had no interest in defending this case through trial and provided his written consent to settle the matter.

In an attempt to negotiate a settlement, Mrs. Smith made a $245,000 settlement demand, which she refused to reduce. The NCMIC-retained defense counsel estimated the potential verdict value of this claim was approximately $300,000, considering the patient’s preexisting compression fractures and pain, her alleged economic damages of $70,000 and the potential for “punitive damages,” which are intended to punish and may not be covered by an insurance policy. The defense team was particularly concerned about Dr. Wingalt’s treatment record inaccuracies and his apparent lack of knowledge about Mrs. Smith’s preexisting conditions.

The court ordered this case to be mediated one week prior to the scheduled trial date. After six hours of negotiating, the case was settled for less than $100,000. NCMIC’s legal costs to defend the claim were just shy of $100,000.

What Can We Learn?

By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island

Facts Will Emerge

Recordkeeping is essential both for optimum patient care and to support doctors in the defense of their care. In this case, Dr. Wingalt’s approach to treatment was unsupported by the records or the results, which was a poor reflection of his competence and could have enabled significant allegations if the case proceeded to court. This doctor was very fortunate that his mediation team was able to settle this case for a reasonable amount.

Punitive Damages  

The term “punitive damages” strikes fear into the hearts of defendants. In this case, the flaws in the doctor’s examination, admitted lack of clinical competence, poor recordkeeping, lack of informed consent and other irregularities could have been leveraged by a skilled plaintiff attorney to elicit empathy for the plaintiff and suggest that it could have been any juror on that table. Only the skill of the claims staff and the attorney enabled a reasonable outcome of the case.

Obtain an Updated History

In this case, Mrs. Smith’s health history had changed in the year since treatment. Mrs. Smith had seen multiple doctors for a variety of conditions, yet Dr. Wingalt apparently did not obtain this information from Mrs. Smith. Another good practice is to obtain or even exchange reports with any of the providers. Had he done so, he would have known about Mrs. Smith’s multiple myeloma and the osteoporotic weakening of her spine—the very structure that Dr. Wingalt was treating with manipulation.

Difficult to Defend Poor Care

Often, initial expert reviews are favorable until all the facts are known, especially when there are irregularities in the chart. Then, as a case winds its way from initial allegations into the discovery and deposition phases, the reality of trial becomes apparent. When the defense’s own experts cannot support a doctor’s clinical judgment, it is clear the prospects for success at trial are questionable.

Paranoia Is Not Necessary

Doctors should not be paranoid that every patient who walks through their door will sue. However, they shouldn’t compromise examinations, histories, records and patient management either. Following these basics—along with obtaining informed consent and having competent staff—litigation tends to favor the provider. Nonetheless, the courtroom is theater, and a case’s success will also often depend on the confidence of the team: the provider, defense counsel and defense experts.

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

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