Jim E. Johnington, age 41, received medical care from Bill Bobert, DO, from August 2004 to January 2008. His medical history was notable for degenerative disc disease, hyperlipidemia, hypertension, diabetes mellitus and obesity. Additionally, he had a family history of heart disease, which included his mother who recently had a heart attack and an uncle who died from a heart attack at age 43.
Posted in Examiner eNewsletter on Wednesday, October 21, 2020
During initial appointments with Dr. Bobert, Johnington reported fatigue and pain in his chest wall and left scapular areas, which radiated to chest and worsened when he put his head down. This progressed to back stiffness and swelling and left scapular pain and spasms that radiated to the left anterior chest wall and worsened at night. He denied heart palpitations, shortness of breath and lower extremity edema.
Testing revealed Johnington’s cholesterol was abnormally high and blood pressure was mildly elevated. Dr.Bobert adjusted Johnington’s medications and discussed the importance of leading a healthier lifestyle, which he continued to advise throughout the patient’s care.
After performing osteopathic manipulation therapy and injecting the patient with a steroid on December 8, 2007, Dr. Bobert recommended more aggressive chiropractic therapy. Therefore, he referred Johnington to Jason Baux, DC, for chiropractic evaluation and treatment. In an office note to Dr. Baux, Dr. Bobert indicated he did not obtain X-rays because he believed Johnington’s problems were musculoskeletal and soft tissue in nature.
When Johnington first presented to Dr. Baux on January 9, 2008, he described pain behind his left shoulder blade and pectoral muscle. Dr. Baux found joint dysfunction in Johnington’s ribs and mid-thoracic spine, as well as trigger points in his anterior and posterior chest. He was able to reproduce Johnington’s chest pain by palpating the pectoralis major trigger point. Dr. Baux noted the patient’s pain increased when moving his head in certain directions, as well as when he coughed or sneezed.
Dr. Baux assessed Johnington’s problem as being musculoskeletal in nature. During this visit, Dr. Baux provided chiropractic manipulation and ultrasound therapy. Over the course of the next 18 days, Dr. Baux saw Johnington eight times, providing chiropractic manipulation and ultrasound therapy to Johnington’s upper back.
Notably, Johnington reported no new signs or symptoms and said his left anterior chest pain had decreased. Because Johnington reported continued improvement and was not experiencing chest symptoms, Dr. Baux discharged Johnington on January 25, 2008.
On January 28, 2008, Johnington presented to Dr. Bobert and indicated he was feeling 60 percent better and no longer had radiating anterior chest wall pain. However, because Johnington still had pain in his scapular area, Dr. Bobert referred him to Dr.Baux for three more weeks of chiropractic treatment.
On February 4, 2008, Johnington presented to Dr. Baux for his second round of chiropractic treatments. Dr. Baux noted that Johnington’s pain was better, although not entirely resolved. Additionally, he noted that Johnington once again complained of minor anterior chest pain episodes. During this visit, Dr. Baux manipulated Johnington’s upper back and performed ultrasound therapy.
On February 6, 2008, Johnington again presented with noted improvement and no new symptoms. Again, chiropractic manipulations and ultrasounds were performed.
At 10:45 p.m., on February 12, 2008, Johnington collapsed at his home. EMS was dispatched at 10:47 p.m., and Johnington was found to be unresponsive, apneic, pulseless, and cyanotic from the shoulders to the top of his head with dilated, fixed pupils. Cardiopulmonary resuscitation was attempted.
Johnington arrived at the local hospital’s emergency department at 11:22 p.m. He was in ventricular fibrillation with pulseless electrical activity. The onsitephysician diagnosed cardiac arrest. Resuscitation included defibrillation times two, and the administration of atropine and epinephrine. These efforts were unsuccessful Johnington was pronounced dead at 11:30 p.m.
An autopsy listed the cause of death as hypertrophic cardiomyopathy with coronary artery disease. It revealed no evidence of acute thrombosis or ischemic heart changes, which was consistent with Johnington having sustained an MI.
The Case
Barb Johnington (the widow and plaintiff) filed a lawsuit naming Bill Bobert, DO, and his practice, Jason Baux, DC, and Jason Baux, DC, PC, as defendants. NCMIC provided coverage for Dr. Baux but not for his corporation. The NCMIC-retained counsel explained to the plaintiff attorney that Dr. Baux’s corporation didn’t have insurance coverage, but the doctor had $1 million in malpractice policy limits. Fortunately, defense counsel was able to have Dr. Baux’s corporation dismissed from the lawsuit.
The numerous allegations against Drs. Bobert and Baux boiled down to claims that the doctors failed to recognize the significance of Johnington’s chest pain, particularly when coupled with his history of degenerative disc disease, hyperlipidemia, hypertension, diabetes mellitus, obesity and family heart disease. According to the plaintiff, both doctors should have referred Johnington to a cardiac specialist, or at the very least, referred him for diagnostic testing, such as electrocardiogram or echocardiogram. The claim against Dr. Bobert’s practice was one of vicarious liability.
Plaintiff Experts
The plaintiff-retained cardiology expert testified that Johnington died of the most common cause of sudden cardiac death, which is severe coronary artery disease. Additionally, symptoms of coronary insufficiency, specifically chest pain, were present for approximately four months before his death. This expert was critical of Dr. Bobert for incorrectly diagnosing Johnington’s chest pain as musculoskeletal and for making that diagnosis without any objective evaluation for alternative causes.
It was this expert’s opinion that had Johnington undergone a cardiac evaluation of his chest pain, he could have been diagnosed with severe coronary artery occlusive disease and left ventricular hypertrophy and appropriate treatment instituted. He opined that this treatment would have prevented Johnington’s death.
The plaintiff’s chiropractic expert contended that it was the chiropractic standard of care to create a differential diagnosis list and consider all appropriate diagnostic testing and treatment. In this case, there was no differential diagnosis of a cardiovascular problem.
The plaintiff also retained a board-certified family physician as an expert consultant. This expert was critical of Drs. Bobert and Baux for not ruling out a cardiac etiology of Johnington’s chest pain. Specifically, he testified that Dr. Bobert failed to meet the accepted standard of care as Johnington’s primary provider because he did not consider an exercise tolerance test with nuclear imaging of the heart. He opined that if Dr. Bobert would have ordered a cardiac evaluation, intervention may have saved Johnington’s life.
He also opined that Dr. Baux failed to meet the standard of care by continuing to provide manipulative chiropractic treatment to Johnington when he had chest pain and multiple risk factors for coronary heart disease. In summary, it was his belief that both Dr. Bobert and Dr. Baux were indifferent and negligent in their treatment and caused Johnington’s premature demise at age 44. Additionally, an economist for the plaintiff estimated the plaintiff’s economic damages at $1.5-$3 million.
Defense Experts
A family practice physician retained by Dr. Bobert’s defense team was of the opinion that Dr. Bobert had known Johnington for years and was well aware of his family history and coronary artery disease risk factors. He noted the autopsy revealed mild-to-moderate coronary disease at most, with only one obtuse marginal artery moderately-to-severely blocked. It was his belief that the coronary arteries were not severely diseased, and there was no heart muscle necrosis or major heart muscle/ventricle enlargement. This expert opined that Johnington likely died of a lethal arrhythmia, such as ventricular fibrillation, and there was no way to predict his sudden death.
Dr. Bobert’s defense team also retained Trisha Boil, MD, the chief pathologist of a large teaching hospital. Dr. Boil disagreed with the opinions of the plaintiff experts. It was Dr. Boil’s opinion that the degree of coronary artery atherosclerosis was relatively mild. She believed that Johnington died of a cardiac arrhythmia with ventricular fibrillation related to left ventricular hypertrophy — not of coronary artery disease. Johnington’s thoracic pain was characteristic of musculoskeletal injury, as it was positional, associated with stiffness, demonstrated swelling and spasm, and responded to massage, osteopathic, and chiropractic manipulation therapy. It did not have characteristics of coronary artery disease pain.
Dr. Boil did not believe Johnington had hypertrophic cardiomyopathy but rather left ventricular hypertrophy of the usual type. Dr. Bobert’s treatment and prescribed medications reduced Johnington’s risk factors for heart disease,hypertension and hypercholesterolemia. The left ventricular hypertrophy, which put Johnington at risk of sudden death, was under control due to the management of hypertension through drugs and exercise. Dr. Boil believed that Dr. Bobert’s medical care and disease management met the standard of care and was not negligent.
A cardiology expert, Redford Green, MD, was retained for the defense of Dr. Baux. Both the pathologist who performed the autopsy, as well as Dr. Green, concluded that Johnington died of hypertrophic cardiomyopathy and not severe coronary artery disease. Notably, the autopsy revealed no evidence of acute thrombosis. More importantly, there were no ischemic changes in the heart, which would be consistent with the patient having sustained an MI. Dr. Bobert’s cardiology and pathology experts also strongly supported the causation defense.
Burton Logan, DC, was retained as Dr. Baux’s standard of care expert. Dr. Logan concluded that Dr. Baux’s evaluation supported a diagnosis of musculoskeletal /somatic dysfunction. Dr. Logan noted that Johnington stated that his pain was continuous and reproduced by movement and position. Moreover, there were specific trigger points in the left rhomboid and pectoral muscles. Dr. Logan also thought it significant that Johnington was improving. Dr. Logan supported Dr. Baux’s diagnosis of musculoskeletal dysfunction rather than a cardiac etiology. In short, it was his opinion that Dr. Baux performed an appropriate exam, followed the appropriate algorithms for chest pain and didn’t deviate from the chiropractic standard of care.
The Outcome
The trial lasted eight days with each doctor testifying consistently with their earlier opinions. Given the complexity of the case, the defense team anticipated that the jury would be out for several hours. Surprisingly, the jury came back in less than three hours with the jury foreman announcing defense verdicts for both Dr. Bobert and Baux.
NCMIC’s defense costs for Dr. Baux were nearly $144,000.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
Receiving a referral is valuable, but do not let it hinder your complete evaluation of the patient. In this case, no X-rays were taken because the referring DO thought the symptoms were musculoskeletal, perhaps swaying the DC’s conclusions. Do not allow your evaluation to be influenced. If you feel further studies would assist in your diagnosis, get them.
Lack of further evaluation can be an issue. In this case, when Johnington reported chest wall pain and scapular pain during the second series of visits, a note back to the referring doctor would have been advisable. Persistent symptoms in a man in his 40s with co-morbidities might have triggered additional evaluation.
It is possible for a DC to do nothing wrong and for a patient to have a major adverse outcome. The jury is tasked by the judge in their instructions that they cannot allow sympathy to guide their decision. They must find that the DC breached the standard of care and caused the injuries to the patient before they find the DC at fault.
An effective defense can often overcome a challenging case. In this case, the defense team was able to obtain experts who testified that the care was consistent with chiropractic standards and the patient’s symptoms were inconsistent with an MI and, further, the pathology demonstrated a fatal event unrelated to the DC care.
Remember to cover your corporation. Plaintiff attorneys typically will sue any individual and employer that is involved. Dr. Baux was fortunate the defense team was able to remove his corporation (which had no coverage) from the litigation. If a plaintiff verdict was returned at an amount higher than Dr. Baux’s $1 million coverage, he may have been personally liable for the amount. Always make sure you and your employer are covered.
About the Author
"What Can We Learn?" author Jennifer Boyd Herlihy is a health care 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 health care providers in matters related to their professional licenses and malpractice actions.