Jessica Johnson, 42, had a long history of occasional headaches and low back pain related to poor posture. Her condition was made worse by a teaching job that kept her on her feet most of the day. When she had a flare-up or her pain was particularly troubling, Jessica would see David Ross, DC. Dr. Ross treated Jessica's low back pain, neck pain and headaches often with stretching exercises, active release technique, activator and, occasionally, diversified adjustments to the neck and low back.
Posted in Examiner eNewsletter on Tuesday, September 6, 2022
After a two-year absence, Jessica returned to see Dr. Ross on June 17 reporting pain in her right cervical region, upper back and shoulder which she related to her teaching activities. She completed a limited health intake form providing updated information regarding demographics, medications and allergies. Information was obtained about the patient’s recent medical history, current condition, vital signs and activity level.
At that visit, Jessica provided minimal details about the onset of her current symptoms, duration, severity or relief efforts. Although not recorded in the patient’s chart, Dr. Ross was only able to perform a limited physical exam due to the severe pain and tightness in the cervical spine. He also noted the patient’s neck was completely locked up with virtually no rotation, flexion or extension. Due to Jessica’s extensive pain and immobility on June 17, Dr. Ross opted not to attempt to treat her with diversified cervical adjustments. Instead, he treated her neck and upper back with only active release technique and soft tissue trigger point therapies.
After the initial treatment with Dr. Ross, Jessica walked without difficulty to the therapy bay where the chiropractic assistant provided electrical stimulation therapy. Upon completing that treatment, Jessica voiced no complaints and had no neurologic changes. She stopped by the front desk to make her payment, check out and schedule her follow up appointment.
The billing records for June 17 show charges for three level spinal manipulations, soft tissue and active release technique.
On June 26, Jessica called to cancel her scheduled appointment. She had a brief text exchange with Dr. Ross advising that her neck felt worse after treatment until she cracked her own neck which eliminated the neck pain. At the time of cancellation, Jessica was traveling quite a bit and wanted to hold off on further chiropractic treatment. Dr. Ross requested the patient keep him informed of her condition.
On July 27, Jessica developed a severe headache and visual aura. Several hours later, family members noticed her speech was incoherent. She was transported by ambulance to a local hospital. She had a prompt head CT which showed a clot in her left middle cerebral artery. A neck CT-A the following day showed a left internal carotid artery dissection with pseudoaneurysm. The treating stroke neurologist noted that the etiology of the infarction was left internal carotid artery dissection from “recent neck manipulation.” The neuroradiologist noted the CT-A was suspicious for fibromuscular dysplasia.
As a result of the stroke, Jessica required several weeks of inpatient hospitalization, inpatient rehab, months of outpatient daily rehab, extensive physical, occupational and speech therapy. She made good progress to nearly fully recover her ability to walk, but she continued to experience problems with dexterity, left-sided weakness and aphasia. Subsequent CT-As revealed the dissection healed within three to six months of diagnosis.
The Lawsuit
Nearly two years after her treatment with Dr. Ross, Jessica and her husband filed suit against Dr. Ross and his practice. They alleged Dr. Ross was negligent in failing to obtain an adequate history, failing to obtain informed consent, performing inappropriate chiropractic procedures, not performing the chiropractic treatments correctly and failing to recognize an arterial dissection or stroke. The plaintiffs sought recovery for medical bills in excess of $200,000, permanent lost wages of approximately $300,000 and pain and suffering associated with the permanent injury and disability.
Interestingly, Jessica also alleged the treatment in question occurred on June 19 and not June 17, the only documented day of treatment.
Investigation and Discovery
The date of the alleged negligent treatment would turn out to be a key issue in this case. A review of all of Dr. Ross’ records, including treatment records, billing statements and computer appointment logs, revealed the absence of any record of treatment on June 19. While occasionally a plaintiff may misstate a treatment date in a lawsuit that may be corrected or modified through the course of discovery, in this case, the plaintiff was adamant that the offending treatment occurred on June 19.
Dr. Ross and his office staff conducted several extensive searches of all his records and repeatedly verified that the patient was not treated on June 19. If Jessica had been treated on that date, there would have been records for the appointment, treatment and billing, in addition to a submission to insurance, or as Dr. Ross repeatedly advised “something” to verify treatment.
Despite the questions surrounding the date of treatment, the defense proceeded to fully defend liability and causation. A chiropractic consultant was retained to address issues relating to standard of care, a neurologist was retained to address issues relating to causation and a neuroradiologist was retained to evaluate findings on the imaging studies.
The chiropractic consultant expressed some concerns about certain aspects of the documentation of the treatment on June 17 but was of the opinion treating this patient with soft tissue therapies and active release technique as documented was appropriate. Further, the neurology consultant confirmed such treatment would not dissect the internal carotid artery or lead to this patient’s dissection and stroke 40 days after treatment. Finally, the neuroradiologist verified the dissection seen on the CT-A on July 28 was not 40 days old. At most it was a few days old, indicating the dissection and subsequent stroke occurred weeks after the treatment with Dr. Ross on June 17.
As part of discovery, the defense wanted to lock in Jessica’s position with respect to the factual aspects of her claim. She was first served written discovery in which she confirmed the allegation she was treated by Dr. Ross on both June 17 and 19. In her deposition, Jessica made a number of key admissions:
- She saw Dr. Ross on June 17, but there was no neck adjustment, no pain associated with or immediately following treatment and, in her opinion, no problem at all with treatment. In fact, Jessica spoke very favorably about the encounter on June 17.
- Jessica testified she was treated on June 19 with a “forceful” and “violent” neck adjustment that led to immediate headache, increased neck pain, nausea and vomiting. She could offer no explanation as to why Dr. Ross would undertake to perform a forceful and violent neck adjustment unlike any previous adjustment he had performed.
- Jessica testified that she placed a cell phone call to her husband from the parking lot of Dr. Ross’ office, immediately after treatment on June 19.
The defense believed that the date of the alleged negligent treatment was emerging as a key issue in the case and looked for evidence to corroborate Dr. Ross’ contention that he had not treated Jessica on June 19. They believed that developing objective third-party sources of evidence would go a long way toward defeating the claim. As a result, several investigation and discovery efforts were undertaken.
First, the defense subpoenaed Jessica’s bank records for the dates in question. In response, the defense obtained a check stub dated June 17 for the amount of the patient’s copay. There was no check or other evidence of payment for services dated June 19. While this evidence was compelling, it was not overwhelming.
Second, and more compelling, defense counsel subpoenaed Jessica’s cell phone records and cell tower location from her cell phone provider. She had already verified her cell phone number, that she always carried her cell phone and that she called her husband after the June 19 alleged treatment. With this information, counsel engaged a cell phone analytics company to investigate Jessica’s physical location using the location of the cell towers that serviced her phone on the dates in question. This established that she was in the vicinity of Dr. Ross’ office on June 17, but nowhere near his office on June 19. The cell phone consultant was able to plot Jessica’s location on a local map to help demonstrate her movements on both June 17 and 19. And, most importantly, establish that Jessica was never in the vicinity of Dr. Ross’ office on June 19, and, therefore, could not have placed a call from his office parking lot as alleged.
Third, defense counsel agreed to Jessica’s counsel’s request to have an IT consultant examine Dr. Ross’ computer looking for any evidence of deleted records of an encounter with the patient on June 19. Extensive details were negotiated regarding the computer inspection protocol to maintain privacy and confidentiality of other office and patient records. Ultimately, the IT consultant was allowed to remotely access defendant’s computer under the watch of Dr. Ross and his counsel. As Dr. Ross had repeatedly assured, there were no records or evidence of records having been deleted of any office visit on June 19.
In addition to the above evidence casting doubt on Jessica’s allegation related to the treatment date, the defense was fortunately able to obtain Jessica’s social media postings from the relevant timeframe early in the case. These showed photographs and statements describing a level of physical activity between the last treatment with Dr. Ross and the dissection which was inconsistent with someone alleging severe headache and neck pain.
While the absence of any record of treatment on June 19 was overwhelming to refute liability, Jessica was not ready to abandon the claim. The defense took the deposition from the treating neurologist. There was some concern this medical doctor would offer detrimental causation opinion testimony since it was known she was not a proponent of chiropractic care and had noted a likely connection between the chiropractic treatment and the dissection in Jessica’s chart. Nevertheless, after discussing this strategy with Dr. Ross, defense counsel and the NCMIC claims professional, it was believed the potential risk of developing adverse causation testimony from a subsequent independent treater was worth the anticipated favorable testimony.
In her deposition, the neurologist testified that she was initially informed the chiropractic treatment was “recent” to the dissection which the neurologist understood to be a matter of days. When informed it was actually weeks and the treatment in question was ART not consisting of cervical rotation, the neurologist reluctantly agreed that the chiropractic treatment was not the likely cause of the carotid artery dissection or subsequent stroke. Finally, the neurologist conceded the neuroradiologist at her same facility identified possible fibromuscular dysplasia which would offer an alternative explanation for the dissection.
In the face of this mounting evidence refuting liability and causation, the case was voluntarily dismissed. NCMIC spent $108,000 in defense cost and consultant expenses.
What Can We Learn?
Documentation is often the key to medical cases. We often hear plaintiffs advance the argument that if “it wasn’t documented it wasn’t done.” While that argument has many fallacies, here defendant was able to turn it around on plaintiff to establish the date she alleged the negligent treatment occurred could not be accurate given the nonexistent documentation.
There are many potential records and places to look to establish if treatment did or did not occur. The chiropractic records and banking records were important. However, the cell phone data and the way that the information could be plotted on a map to show plaintiff’s whereabouts was extremely compelling and likely would have been persuasive to a jury. If pursuing this line of defense, keep in mind to set it up by pinning plaintiff down through written discovery and deposition testimony regarding cell phone number, cell phone provider, and that plaintiff always has her cell phone in her possession. Then, be certain to subpoena the necessary cell phone records and the location of the cell towers at the time in question.
Carefully evaluate the benefits of deposing subsequent treaters. Here, it was strongly suspected the stroke neurologist harbored anti-chiropractic bias, opposed neck adjustments and believed there was a causal relationship between neck adjustment and dissection. Yet, fortunately, defendant had a lengthy timeframe from Jessica’s treatment to dissection and good evidence of FMD, as well as evidence there was no neck manipulation with rotation. As a result, the neurologist had little choice but to backtrack from any causation opinions, notwithstanding some of the unfavorable wording in the patient’s medical chart by the neurologist.
Despite continually reducing reimbursements from insurers and other payers, the billing records must be consistent with treatment records. When defending chiropractors, counsel needs to carefully compare the treatment and billing records and be prepared to have the chiropractor explain any discrepancies. Any evidence of discrepancies will be argued by plaintiff’s counsel as billing irregularities or worse and can quickly make a defensible case indefensible.
Be cognizant of all forms of communication. Given current communication methods, text messaging with medical providers, especially chiropractors who often have a more personable relationship with their patients, is more prevalent. Be certain to keep all texts and email communications with patients in the patient medical chart. This will also help avoid a potential spoliation or loss of important evidence claim if cell phones are replaced or if text messages are routinely purged. Do not minimize the importance of a text exchange despite its casual format. When a patient texts a medical provider, it often is because the patient has a concern that needs to be addressed. If a medical provider recommends a patient be seen by that provider or referred elsewhere, record that in the chart along with the reasoning. We are now frequently seeing patients claim that the chiropractor may not have caused the dissection and subsequent stroke, but because of text, email or other communications with the patient, there are claims the chiropractor should have recognized a potential neurologic problem and promptly referred the patient for medical evaluation. Maintaining all communications with the patient and recording the reasons for recommendations, just as would be done in the actual patient chart, will help defend against failure to diagnose claims based on electronic communications.
About the Author
For over 20 years, Tom Smith has defended hospitals and health care providers in medical malpractice litigation, and represented businesses in product liability, personal injury, class action, employment and commercial litigation. Tom has successfully defended insurance companies, transportation companies, pharmaceutical companies, construction companies, real estate companies and other businesses in professional negligence and personal injury lawsuits throughout Missouri and Illinois state and federal courts.
In addition to being a trial attorney, Tom has lectured in the areas of risk management, lawsuit prevention, and trial strategy to hospitals, medical professionals, insurers and transportation companies. Tom is a founding partner of Fox Smith, LLC. He received his undergraduate degree in business administration from the University of Missouri-St. Louis while a member of the University basketball team. He received his law degree from Saint Louis University in 1993.