Doctor's Defense Up Against the Ropes
Up against the ropes is a bad place for a boxer. It is also a dangerous place for a chiropractor in the defense of a lawsuit.
Posted in Risk Management on Tuesday, September 4, 2018
Donna Jeppersen, DC, worked as an associate doctor with Dan Mercet, DC, at Oak Street Chiropractic Clinic. Tonya Jackson, age 28, sought care from Dr. Jeppersen for recurring cervical, thoracic and lumbar segmental dysfunction with associated headache and hypertonicity, as well as recurring right elbow, right hip, and right knee joint dysfunction and restriction.
Ms. Jackson had been a world-class sprinter in college and was currently a wide receiver for a women’s professional football league team and an aspiring Golden Gloves boxer. Additionally, she worked as a loader for a package delivery company.
Because Ms. Jackson needed assistance with finances to pursue her boxing ambitions, Oak Street Chiropractic Clinic and Dr. Jeppersen became her sponsors. She was also sponsored by a shoe manufacturer and a protective headgear maker.
Patient Asks Doctor to Travel with Her
Ms. Jackson sought more help from Dr. Jeppersen. She asked the DC if she would travel with her to tournaments both as her coach and as her chiropractor, and Dr. Jeppersen agreed. Consequently, Dr. Jeppersen took a class and became a Level 1 amateur boxing coach.
Not long thereafter, Ms. Jackson won the intercity Golden Gloves Championship in her weight class. Her goal was to win a regional Golden Gloves title to qualify for the World Golden Gloves event to be held the following winter. In preparation for the regional bouts held in Tulsa, Oklahoma, Ms. Jackson began to spar with male boxers.
After a particularly robust sparring session with a male boxer several weight classes above her, Ms. Jackson had complaints of head and neck pain.
Ms. Jackson made a single visit to Oak Street Chiropractic for an exam and treatment of her right elbow pain. She was seen by Dr. Mercet, because Dr. Jeppersen was unavailable. Dr. Mercet documented that neurologically Ms. Jackson was intact, and Ms. Jackson and Dr. Jeppersen made the road trip to Tulsa.
During the trip, Ms. Jackson continued to complain of head and neck pain, and Dr. Jeppersen provided undocumented chiropractic care. In addition, she gave her over-the-counter pain medication and hydrocodone from her own personal prescription. This treatment regimen continued until the eve of Ms. Jackson’s first bout. She won that bout and cleared the pre- and post-fight exams by the ringside physician.
Later that night, Ms. Jackson again developed head and neck pain. Once more Dr. Jeppersen provided Ms. Jackson with chiropractic care and gave her over-the-counter and prescription pain medications.
At one minute and 32 seconds into the second round of her next fight, Ms. Jackson collapsed and began the fight for her life. She was sent to the Tulsa Regional Medical Center where she was diagnosed with a right temporal subdural hematoma, and she sustained multiple ischemic strokes.
Ms. Jackson remained in intensive care for three and one half weeks, during which time she experienced pericardial effusion and respiratory failure. She was discharged from the hospital after 38 days and went directly to a skilled nursing facility for follow-up care and physical therapy. She remained in that facility for seven months and was then released to home care at her mother’s residence in Hattiesburg, Mississippi.
Ms. Jackson was permanently and totally disabled from this severe brain injury. To this day, she suffers from chronic seizures. Her ability to ambulate is greatly diminished due to profound left-side weakness. She is unable to speak clearly and has severe cognitive and memory deficits. She will never work again; receives SSDI, Medicare and Medicaid; and will require continuous care with all aspects of life. At the time of the claim, Ms. Jackson’s medical expenses already exceeded $600,000, and they continue to be incurred.
A lawsuit was filed against Dr. Jeppersen, Dr. Mercet and his clinic, the Golden Gloves of America boxing association, and against the gym and trainer where Ms. Jackson (now the plaintiff) trained.
The claims against Dr. Jeppersen included allegations of medical negligence, negligence as a boxing coach and general negligence. The claims against Dr. Mercet and the clinic were allegations of medical negligence and the negligent supervision of Dr. Jeppersen.
NCMIC immediately retained a defense attorney for Dr. Jeppersen and separate counsel for Dr. Mercet because their interests were diverse.
Right out of the gate, Dr. Mercet contested his liability as he only treated Ms. Jackson one time in his clinic for an elbow problem, which was hardly related to her brain injury. He also disavowed any responsibility for Dr. Jeppersen, as she was treating Ms. Jackson outside of the clinic and off the books. Essentially, Dr. Mercet contended that Dr. Jeppersen had provided chiropractic care totally outside the scope of her employment.
Because not all of the allegations against Dr. Jeppersen were related to her chiropractic care and her NCMIC policy, her attorney looked to all potential sources of insurance coverages. She had a business owners’ policy that remained in effect from her solo practice days and a homeowners policy that were applicable because of the allegations of negligence as a boxing coach and general negligence. Those carriers were put on notice of their exposure and participated in the defense of the case.
Did Sparring Cause the Injuries?
The plaintiff’s case relied upon a theory of second or multiple impacts to the brain and that Ms. Jackson sustained a concussion during the sparring sessions. The theory was her brain did not have time to heal before sustaining further injury from subsequent blows to the head, which in turn had a cumulative effect and caused the massive hematoma and strokes. The allegations were that Dr. Jeppersen should have diagnosed the concussion, stopped Ms. Jackson from fighting, not provided pain medications to mask the injury and advised the ringside doctor of health issues prior to the fight.
As mentioned earlier, Ms. Jackson was briefly examined prior to and after each fight by a ringside physician. At the time, she either did not mention her head and neck pain or she denied having problems. Obviously, this would have become an issue in Dr. Jeppersen’s defense.
Unfortunately, Dr. Jeppersen was in attendance at those exams as Ms. Jackson’s coach, and she allowed the plaintiff to be untruthful about her condition. At the time, Dr. Jeppersen apparently did not interject Ms. Jackson’s true history either as her coach or chiropractor.
During the discovery phase of the case, NCMIC learned that Dr. Jeppersen provided dozens of undocumented treatments to Ms. Jackson. Consequently, the defense was severely handicapped.
What’s more, medical consultants retained for the defense agreed with the plaintiff’s expert that multiple impacts were the cause of Ms. Jackson’s injury. In addition, Dr. Jeppersen provided care in a number of states while traveling with Ms. Jackson where she was not licensed to do so. Lastly, Dr. Jeppersen gave the plaintiff her personal prescription drugs.
Because the case was virtually indefensible, NCMIC entered into settlement talks with the plaintiff with the consent of Dr. Jeppersen. On behalf of Dr. Jeppersen, the case settled for $1.9 million with $800,000 paid by NCMIC, $750,000 paid by the business owners’ insurance carrier and $350,000 paid by the homeowners insurance carrier.
Dr. Mercet was dismissed from the case without an indemnity payment. The plaintiff reserved the right to pursue the case against the remaining defendants. NCMIC’s cost to defend the case was $135,000.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
The concept of sports chiropractic may enthrall many doctors, but like sports themselves, it requires ongoing training, discipline and practice. Corners are not to be cut. In this case, it was clear there were breaches in the doctor’s ethical and professional clinical judgment. These breaches will be exploited by the plaintiff’s attorney and influence the jury’s opinion of the doctor.
Document, Document, Document
It’s all too easy to shortchange the rules of recordkeeping with family, friends, colleagues and patients who are engaged in sports. However, records form a foundational basis for the defense of any case. Therefore, recordkeeping shortcuts hurt a case’s defensibility and put a doctor’s license in peril.
Tender to All Carriers
Because not all of the allegations against Dr. Jeppersen were related to the chiropractic care she provided, her NCMIC-retained attorney looked to all potential sources of insurance coverage. Her business owners’ and homeowners policies helped protect Dr. Jeppersen from an excess verdict.
When traveling with an athlete or team, doctors must ensure they are properly licensed where treatment will take place. In this case, Dr. Jeppersen rendered treatment in states where she was not licensed. While NCMIC defended her malpractice allegation, practicing without a license fell outside of her malpractice coverage. Additionally, the DC violated considerable laws when she gave her patient medications without the authority to do so.
Patient’s Best Interest
The cardinal rule for all healthcare providers is “Primum Non Nocere,” which means “First, Do No Harm.” Dr. Jeppersen forgot that rule when she did not disclose the patient’s health issues during a potentially dangerous boxing event, gave prescription medications that were not the patient’s to mask the symptoms and treated without documentation.
Further, Dr. Jeppersen allowed her personal involvement to overshadow her professional judgment. The blurring of boundaries, including sponsorship and coaching, should have led Dr. Jeppersen to refer the patient out for treatment.
Every case can be analyzed and dissected through a rearview mirror, and it is easy for reviewers and experts to comment after the fact about the right thing to do. That’s why it’s important to ask yourself: Would I be comfortable with how my actions would appear before my licensing board or a court of law? If the answer is “no,” then it’s time to alter your approach.
Jennifer Boyd Herlihy is healthcare defense lawyer with the firm of Adler / Cohen / Harvey / Wakeman / Guekguezian, LLP, located in Boston, Massachusetts, and Providence, Rhode Island. 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.