DC patient exam

DC Misses Important Indicators While Caring for New Patient

In the summer of 2016, Daniel Grant, a 51-year-old office manager of a plumbing, heating and air conditioning company, attended a business networking event where he met Chris Manning, DC.

During casual conversation, Daniel told Dr. Manning that he had been experiencing pain in his shoulder. Daniel described a sensation of a lump or a muscle bulge on the top of his shoulder blade.

Based on Daniel’s account, Dr. Manning determined that Daniel’s pain was in the upper portion of his trapezius muscle — midway between his cervical spine and acromioclavicular process. Dr. Manning invited Daniel to come to his clinic for an evaluation and possible  treatment.

Dr. Manning first saw Daniel in his office on June 30, 2016. His chief complaint was weakness in both arms with noticeable loss of mobility in his left arm. Daniel believed his problems began after lifting heavy material. Dr. Manning characterized the weakness as “moderate-severe,” rating the weakness as a 7 on a 0-10 point scale.

Daniel suffered no pain associated with his arm weakness, but he had wasting in his arm muscles and shakes in his right hand recently. Dr. Manning noted that        Daniel had neck pain, stiffness, tension and muscle spasms  in his cervical, thoracic and lumbar regions. However, Dr. Manning didn’t identify the involved muscles in his record. Daniel also informed Dr. Manning that he had diabetes and experienced numbness in his fingers.

Dr. Manning’s examination also included cervical ranges of motion and negative cervical compression, VBI testing, shoulder compression, Valsalva maneuver, maximum foraminal compression, distraction and Milgram’s orthopedic testing.

Dr. Manning’s objective physical examination findings reflected spasm and trigger points by palpation, but the   anatomical locations were not written in the records.

Dr. Manning’s record reflected that he found cervical, thoracic, lumbar and sacral subluxations and moderate muscle spasm and trigger points during palpation as objective findings. His assessment was somatic dysfunction of the cervical region with muscle spasm, somatic dysfunction of the thoracic region and somatic dysfunction of the lumbar region. Dr. Manning obtained    X-rays, but he did not record his interpretation of the films in Daniel’s clinical record. No treatment was rendered on this date.

Treatment Provided on Multiple Dates

Daniel was seen by Dr. Manning on July 1, 7, 14 and 28, 2016. His chart indicated that he adjusted 13 levels of the spine, including C1, C2, C5, C6 and C7 and performed unattended electrical stimulation. Dr. Manning used the diversified, high-velocity/low-amplitude adjustment technique.

With regard to the cervical spine, he performed two adjustments on each date, one at C1 and C2 and the other at C5, C6 and C7. The chart didn’t indicate on which side of the spine he made these adjustments.

Dr. Manning palpated the spine on these dates with the same lumbar and sacral subluxations, and moderate spasm and trigger points. Dr. Manning’s assessment was that Daniel’s condition remained unchanged, with the exception of a slight improvement on July 7 and 14.

On July 28, 2008, Daniel reported a significant increase in trouble with his    left arm over the previous weekend. He hadn’t noticed any increased weakness in his arms until July 25 when he attempted to lift a grocery bag and discovered he could not raise his left arm.

Dr. Manning noted objective findings of cervical, thoracic, lumbar and sacral subluxations, and moderate-to-severe muscle spasms and trigger points during cervical, thoracic and lumbar palpation.

The record was absent any information about the area of the spine of the moderate-to- severe muscle spasms. Dr. Manning rendered the same treatment as on earlier visits.

He suggested increasing the frequency of treatment to attempt to improve movement in Daniel’s arm. At the time of this visit, Daniel said he had no appreciable change — for the better or worse. The DC determined that  if there was no “significant effect” soon, he would look into referring Daniel to an orthopedic doctor or for an MRI. Nonetheless, this was Daniel’s last visit with Dr. Manning.

Patient Sees Other Treaters

On the evening of July 28, Daniel contacted his previous doctor of chiropractic, Carl Ronsen, DC, for a second opinion and was seen on July 29. At this visit, Dr. Ronsen recommended Daniel see his primary care physician or go to the emergency room.

Therefore, Daniel saw his primary care physician, Gene Sampson, MD, on July 30. By this point, Daniel reported he could not lift his left shoulder and had decreased grip strength and bicep tone. On examination, Dr. Sampson noted the following: Daniel’s left shoulder was very weak on rotation — he could not elevate the shoulder beyond 75 degrees, his bicep strength was 4/5 and grip strength 5/5, and Daniel’s right shoulder was normal.

Consequently, Dr. Sampson ordered an MRI on a semi-urgent basis, which showed:

  • Straightening of the cervical lordosis
  • Moderate anterior disk bulge and peridiscal spurring at C3–C4
  • At C4–C5, there was T2 prolongation in the central portion of the spinal cord suggestive of spinal cord parenchymal volume loss and myelomalacia; the disk space was narrow with diffuse disk bulge and peridiscal spurring; and the central canal was moderately stenotic measuring 6.3 mm in the AP dimension.
  • Both neural foramina were moderately to markedly stenotic at C4–C5.
  • At C5–C6, there was disk space narrowing with disk bulge and spurring; the central canal was markedly stenotic measuring a minimal of 3.8 mm in the AP dimension; there was T2 prolongation in the spinal cord with equivocal parenchymal volume loss suggestive of myelomalacia; and there was moderate to marked bilateral foraminal narrowing.

Based upon these results, Dr. Sampson made arrangements for Daniel to be seen by neurosurgeon Brandon Deets, MD, on an urgent basis the next day.

Dr. Deets saw Daniel on July 31. Daniel informed Dr. Deets his left arm had gotten weaker during the course of chiropractic care. On examination, Daniel had normal strength in both legs and in his right arm. In his left arm, the deltoid was mildly weak, the biceps were weak at 3/5 and the triceps were weak at 4/5.

Dr. Deets noted mild parasthesias in the left two digits of Daniel’s left hand. Dr. Deets’ assessment included significant left arm weakness, secondary to degenerative disc disease at C4–C5 and C5–C6, with central stenosis and signal change in the cord. He recommended anterior cervical discectomy and fusion at C4–C5 and C5–C6. Dr. Deets felt the surgery was necessary to stabilize Daniel’s condition, though it might not improve. Dr. Deets performed the surgery on Aug. 4.

Daniel received follow-up care with Dr. Deets and with orthopedist Paul Roberts, MD. Daniel also underwent and was discharged from physical therapy on Jan. 12, 2017. His therapist noted range of motion improvement, but the functionality of Daniel’s shoulder would continue to be severely limited. Daniel’s prognosis at discharge was only fair.

Daniel last saw Dr. Roberts on Feb. 2. Daniel’s chief complaint was left arm numbness and left shoulder weakness. On exam, Daniel could actively forward flex and abduct to approximately 60 degrees. His passive flexion and abduction was 90 degrees. Dr. Roberts’ assessment was continued shoulder weakness and arm numbness as a residual of his neck condition. He did not attribute any problems to the shoulder joint itself.

Daniel’s last visit with Dr. Deets occurred on June 29. At this visit, Dr. Deets noted that any activity caused Daniel severe shoulder pain. He was also unable to lift more than two pounds with his left arm—essentially, he was totally disabled and extremely unlikely to improve. Dr. Deets deemed Daniel unable to work in any capacity, due to weakness and pain.

Lawsuit Ensues

On Nov. 2, Dr. Manning was greeted at his office by a deputy sheriff who served him with a lawsuit initiated by Daniel Grant. The allegations against Dr. Manning were that Daniel’s spinal cord injury and disability were caused by the negligence of Dr. Manning.

It was further alleged that Dr. Manning’s negligence caused Daniel Grant to suffer severe injuries to his body and limbs, both internal and external. The injuries to his nerves or nervous system were likely permanent and would cause him future suffering, pain, discomfort, disability and loss of enjoyment of life. He also had scarring and disfigurement from the surgery.

Dr. Manning tendered this lawsuit to NCMIC, who in turn retained defense counsel to protect his interests. Over the next year:

  • Medical records were obtained.
  • Documents were exchanged between the parties, including interrogatories (a formal set of written questions).
  •  Expert witnesses were disclosed by the plaintiff (Daniel Grant) and the defense (Dr. Manning).
  • Depositions were taken from the necessary parties.
  • A brief stint of surveillance on the plaintiff was conducted.

On Nov. 6, 2018, a pretrial conference was held. Daniel Grant and his attorney were present for this conference as were Dr. Manning, his NCMIC-retained attorney and a claims representative from NCMIC. The judge called the attorneys into his chambers to discuss the case. An hour or so later, the NCMIC-retained defense counsel informed Dr. Manning and his claims representative that the plaintiff’s demand was $750,000.

Defense counsel then discussed with Dr. Manning the fact that although they had supportive expert review, in their estimation there was some risk of proceeding to trial. Dr. Manning agreed that a settlement offer should be extended and he provided his consent to settle. NCMIC attorneys also felt that although the case was defensible, a small offer to resolve the case should be attempted. Thereafter, $50,000 was extended in settlement authority to defense counsel. The plaintiff responded that his demand remained at $750,000. Therefore, it was determined that the defense should prepare for trial.

The NCMIC-retained defense counsel confirmed at the pretrial conference that Daniel Grant’s attorney did not intend to pursue his claim that Dr. Manning’s adjustments injured the plaintiff’s spinal cord. Rather, the plaintiff would focus on his claim that an earlier referral for an MRI and an evaluation by a medical physician would have resulted in more timely cervical decompression surgery and the preservation of Daniel Grant’s left arm function.

Going into trial, the NCMIC-retained defense counsel gave his opinion that Dr. Manning had a good chance of success at trial. The reasons for this were the expected testimony of the defense experts and the totality of the circumstances including the experience of the plaintiff’s counsel versus the defense attorney’s experience. However, he also believed that there was a fair chance the jury might agree with the plaintiff’s claim for lost wages of $500,000 and additional damages for pain and suffering and medical expenses. Together, these could exceed Dr. Manning’s $1 million policy limit and put him at risk for personal exposure and liability.

Dr. Manning was concerned that his assets would be personally exposed if he went to trial and lost. Therefore, he initially requested that the case be settled within his policy limits. However, the NCMIC defense team believed the case was strong and discussed its merits with Dr. Manning, and it was decided to proceed to trial.

The first day of trial was Dec. 6, 2018. The defense classified the jury as intelligent, with all but one of its members having had past chiropractic treatment.

During opening statements, the plaintiff’s attorney argued that Dr. Manning failed to conduct an appropriate overall history, physical exam and assessment of Daniel Grant’s presenting complaints. He alleged Dr. Manning failed to do so on the four occasions when the patient presented with complaints of left arm weakness and neck and shoulder pain.

The plaintiff’s attorney alleged that Daniel Grant had undiagnosed and unrecognized spinal cord myelopathy. This meant that believed the evidence would show that if appropriate treatment had been conducted, findings consistent with cord myelopathy would have been revealed. This would have necessitated an immediate referral to a spine surgeon—either an orthopedic surgeon or a neurosurgeon. That didn’t happen in this case.

Daniel Grant’s attorney further asserted that the delay in diagnosis resulted in the patient’s condition worsening, leaving him with residual left arm dysfunction and weakness, along with chronic neck, shoulder and arm pain. In response, the NCMIC-retained defense asserted that Dr. Manning’s evaluation of the plaintiff’s complaints was more consistent with radiculopathy and conversely inconsistent with myelopathy.

Upon Questioning, Other Issues Surface

Dr. Manning conceded at trial that his documentation should have been considerably better, and it was his usual and customary practice to conduct a more thorough exam than he had documented. Fortunately for the defense, Daniel Grant testified that Dr. Manning had performed several different tests and examinations that were not documented in the records. This admission proved to be quite important to Dr. Manning’s defense, since there was very little physical examination documented that would have allowed anyone to distinguish between radiculopathy and myelopathy.

During the discovery phase of this case, the plaintiff’s chiropractic expert, also a member of Dr. Manning’s state board of chiropractic examiners, was highly critical of Dr. Manning’s management of Daniel Grant’s condition. However, this expert conceded at trial that none of the patient’s presenting findings were diagnostic for myelopathy. This was the case for both the times Daniel Grant saw Dr. Manning and the occasions he saw other providers before being referred to a neurosurgeon. Ultimately, this expert was only mildly critical of Dr. Manning’s limited and poor documentation.

Dr. Manning’s NCMIC–retained defense attorney also called in an array of treating providers. One of these was Dr. Sampson, who made a less-than-credible appearance. Dr. Sampson testified that he thought the patient had a radiculopathy problem, not a myelopathy problem. This was in spite of the fact that he told Daniel Grant he had a spinal cord problem and not peripheral nerve problem. Dr. Sampson further testified that, even with minimal activity, the plaintiff was now living in agonizing, unremitting and unbearable pain. This was in direct contrast to Daniel Grant’s testimony that he walked 2 to 4 miles per day and helped care for his sister’s children by cooking and cleaning their house. (Yet, the plaintiff claimed to be unemployable.)

Dr. Deets, Daniel Grant’s treating neurosurgeon, was also called by the plaintiff attorney as a witness. He would not voluntarily testify, so the plaintiff attorney had to subpoena him. This angered and upset Dr. Deets to the point that he became belligerent, uncooperative and a hostile witness. As a result, his testimony neither helped nor hurt Dr. Manning’s defense.

The plaintiff’s last witness was an orthopedic spine surgeon who practiced more than 1,000 miles away. Without explanation, he asserted that the plaintiff would have had a better outcome had he undergone surgery before his left arm weakness progressed to the point that he couldn’t lift it beyond 90 degrees.

Defense Counters

Besides Dr. Manning testifying on his own behalf, the defense brought in a local DC who was a chiropractic orthopedic specialist. This expert acknowledged that Dr. Manning should have had better documentation, and this would have made his case assessment considerably easier to defend. However, Daniel Grant presented with radiculopathy, which was something chiropractors regularly treated with conservative care without the benefit of an MRI. This would be the case unless there was no improvement or the patient deteriorated after a brief course of conservative care.

A local neurosurgeon also testified on behalf of Dr. Manning. He indicated that the plaintiff had no complaints or documented examination findings that would have substantiated the presence of myelopathy that could have been identified by examination, history or other diagnostic testing.

He explained the difference between myelomalacia and myelopathy. Myelomalacia results from chronic restriction of the spinal cord due to stenosis and/or disc herniation versus symptoms of myelopathy. Myelomalacia can exist without symptoms and does not become symptomatic until a critical mass is reached in the cord. This surgeon explained that many patients have some level of myelomalacia with spinal cord impingement without overt signs of myelopathy. They may not be symptomatic or show evidence of spinal cord impairment (myelopathy) in spite of having myelomalacia.

Trial Comes to Close

At the close of the case, the plaintiff’s counsel asked for $1.9 to $2.9 million for a verdict. The jury received the case late on a Friday afternoon, and the judge ordered them to return to begin deliberations at 9 a.m. the following Monday.

At 11:10 a.m., the NCMIC-retained defense counsel heard from the court that the jury had reached a verdict. The jury concluded that Dr. Manning was not negligent in connection with his chiropractic care and treatment of Daniel Grant. In short, it was a defense verdict for Chris Manning, DC.

NCMIC’s costs to defend this case totaled more than $190,000.

What Can We Learn?

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

Records speak loudly. Regardless of the case specifics, the foundation to determine the quality or appropriateness of patient care is the completeness of the records. In this case, Dr. Manning’s records did not include enough detail for an independent reviewer to ascertain if he conducted an appropriate examination. Had the patient records been more complete, the defense of the case would have been considerably easier. Although the case was a success, its outcome easily could have been different.

Clinical improvement is a cardinal indicator. Many clinicians would have had cause for concern if a patient went without improvement or change after a month of care. If Dr. Manning would have sensed this “red flag,” he might have considered an earlier referral/testing or consultation to rule out other diagnostic possibilities. Had he done so, the case might not have originated in the first place.

Credibility of witnesses and experts make a difference. This case identified the various types of experts involved in a case:

  • The hostile witness who is not necessarily favorable or unfavorable to either side of a case but simply does not want to appear in court.
  • The paid witness who may be untrustworthy if he or she uses his or her skill, ability and position solely for financial gain.
  • The credible expert who simply tells the truth and tends to be perceived as reliable by a jury.

Treating casually is ill-advised. Encounters at golf courses, cocktail parties or other meetings where a DC attempts to treat or identify conditions without an appropriate examination, records or equipment can lead to legal trouble. In this case, Dr. Manning did the right thing when he met a patient casually and then appropriately scheduled him for an office visit.

Settlement decisions are often tradeoffs. Doctors tend to become extremely concerned about their personal exposure when there is the potential for a judgment above their policy limits. In response, some doctors will request their insurance company settle within policy limits to mitigate this risk—regardless of whether or not the defense and insurance company believe a judgment above policy limits is likely.

However, this determination should be made cooperatively with the defense team, based upon the strength of the case. It is important to remember that any time a case settles, it is subject to mandatory reporting requirements, which may impact the doctor’s license or information provided by a state’s licensing board.

Radiographs should be recorded. Dr. Manning, in all likelihood, billed for both the technical (taking) and the professional (interpretation) components of the X-rays. However, there was no report in the records. The jurors might have perceived this as a significant discrepancy.

Benefits of “consent to settle.” NCMIC’s malpractice insurance plan is designed to look out for your best interests. That is the reason it includes a true consent to settle feature, which means no case will be settled without your approval. It gives you, the policyholder, every opportunity to protect your reputation.

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