Pre-Existing Condition Results in Injury to Patient and Lawsuit Settlement

When a patient sought care from a local holistic chiropractor, one of her existing health conditions meant that she shouldn't have received the hydrotherapy treatment she ultimately received. Here's what happened.

Posted in Examiner eNewsletter on Tuesday, August 24, 2021

Carol Fleming suffered from constipation for many years. She sought care from a local holistic chiropractor, Dr. Mary Sheridan. In addition to traditional chiropractic treatment, Dr. Sheridan offered her patients a variety of holistic services including hydrotherapy for gastrointestinal issues. Mrs. Fleming’s husband, Charlie, had received hydrotherapy treatments from Dr. Sheridan with good results, and Charlie recommended the same to Carol. However, Mrs. Fleming’s symptoms were more complicated than Dr. Sheridan realized and she suffered serious complications from the treatment provided.

Incident

Intake and First Treatment

Carol Fleming initially presented to Dr. Sheridan on August 10, 2015, with complaints of constipation. She completed an intake sheet and provided a health history of coronary artery disease, diverticulosis and diverticulitis as current conditions. Diverticulitis is a contraindication to hydrotherapy. Dr. Sheridan was not in the office that day and her chiropractic assistant, Michael, was caring for the patient. Michael telephoned Dr. Sheridan to discuss the plan and Dr. Sheridan provided Michael with approval to proceed with hydrotherapy.

Unfortunately, Dr. Sheridan did not ask Michael about Fleming’s health history, nor did Michael tell her about the diverticulitis. Dr. Sheridan also did not instruct Michael to discuss the risks of hydrotherapy with the patient as that was not their practice to do so. There were no complications with this therapy session and Fleming reported that it was a good experience.

Second Treatment

Fleming then returned for a second hydrotherapy session two weeks later. Dr. Sheridan was in the office that day and met with her for a few minutes during that visit. She did not review or discuss the intake sheet or procedure but did talk about the patient’s medications list and potential drug interactions.

During treatment on August 26, Michael asked Dr. Sheridan for assistance during treatment as the patient was feeling discomfort. Dr. Sheridan instructed Michael to cease the therapy and they noticed blood on the insertion tube and in the basin. The patient was ambulatory and in good spirits, but reported some tightness. Dr. Sheridan instructed her to go to the emergency room if she began feeling any pain. Fleming then left the office and drove herself home.

Trip to the ER

When Dr. Sheridan learned later that day that Fleming was in the ER, she went to see her. The ER physician told Dr. Sheridan that this patient had no business receiving colon hydrotherapy because of her diverticulitis. Fleming subsequently underwent surgery for a perforated colon. During that procedure, 21 cm of her bowel was resected and a colostomy was placed. The surgeon recommended that the ostomy not be reversed due to Fleming’s chronic constipation. She also suffered a post-operative hernia at the stoma site that required surgical repair. She eventually recovered with no further complications.

Lawsuit

Fleming subsequently filed a chiropractic malpractice lawsuit against Dr. Sheridan and her corporation, alleging:

• Failure to perform appropriate pre-colon hydrotherapy abdominal exam
• Failure to continuously attend to a high-risk patient during the session
• Failure to appropriately assess the patient as a candidate for a colon hydrotherapy
• Delegated the monitoring of a Class II machine to an unqualified person, or to someone who was not properly licensed to administer the procedure
• Failure to instruct the patient on his need to evacuate in a timely manner during the process and assess his understanding of the procedure and/or his difficulty of doing so
• Failure to recognize the seriousness of the signs and symptoms that indicated the patient was in acute distress and/or to alter or terminate the procedure in a timely manner
• Failure to assess the seriousness of the patient’s injury with a post-procedure examination
• Failure to properly refer the patient to the emergency room due to the seriousness of her condition

The Case

Defendants retained experts in the areas of hydrotherapy and colorectal surgery. They both shared the opinion that the patient’s diverticulitis did not cause or contribute to the perforation. This is because diverticula do not form in the area of the perforation, which was in the rectum to the mesorectum. However, both opined that the likely cause was rectal pressure caused by the hydrotherapy water plus existing stool.

The operative report also noted scar tissue from diverticulitis in the colon, which creates a damming effect and additional pressure within the rectum. While the diverticulitis itself was not a proximate cause of the injury, had Dr. Sheridan reviewed the intake form and identified the contraindication, Fleming would not have been allowed to go forward with the hydrotherapy treatment.

Mediation

During mediation, the defendants conceded that Dr. Sheridan did not address Fleming’s diverticulitis and that if she had known the patient had that pre-existing condition, she would not have given approval to go forward with the hydrotherapy. However, the defendants did assert that:

• The patient did not seem to be suffering an emergency during the second visit.
• Dr. Sheridan instructed her to go to the ER if she began feeling pain, which she did later that day. 
• Continuous monitoring of a hydrotherapy session is not standard practice. The procedure lasts just under an hour and a staff member checks on the patient every five minutes. The primary reason that monitoring is not continuous is because patients prefer privacy while evacuating.
• No license was required in this state to operate the hydrotherapy machine, and Michael was well-trained in providing this treatment.
• Finally, Michael should have instructed Fleming to evacuate when she felt the urge to do so instead of holding the water in her bowel. Michael could not remember if he discussed this with the patient although he said it was his custom and practice to do so.  

The Outcome 

The initial settlement demand at mediation was $450,000. This was based upon past medical bills in the amount of $200,000 and an estimated $50,000 in future medical costs related to the ongoing gastroenterology issues. Fleming’s attorney also claimed non-economic damages in the form of pain, suffering and disfigurement.

While the defendants believed that Fleming’s diverticulitis was not the cause of the perforation, they realized that the patient should not have received the hydrotherapy due to that condition and therefore agreed to settle the case. The lawsuit was resolved at mediation for $150,000.

The defendants were able to negotiate this favorable number primarily based upon Dr. Sheridan’s genuine concern for her patient at the time of the incident and her admission that she should have reviewed Fleming’s health history prior to authorizing the therapy. Because of Dr. Sheridan’s response to the incident and the lawsuit, the plaintiff’s attorney believed that a jury would find her credible and empathetic, therefore decreasing the settlement value.

What Can We Learn?

Health history. Reviewing and discussing a new patient’s health history is very important, whether the treatment is chiropractic or holistic chiropractic. A practitioner must ensure that he/she documents the rationale and indications for treatment provided and ensure that there are no contraindications to the recommended care.

Ensure assistants are properly trained. Not all patient care and treatment in the office is handled by the chiropractor. It is important that chiropractic assistants are properly trained in every aspect of patient care in which they will be participating. As employees, any negligence committed by chiropractic assistants is the responsibility of the practice.

Follow up with patients. When a complication to treatment occurs, a practitioner should follow up with the patient to ensure the issue has resolved or if further treatment is necessary. This is not only good practice for patient care but also helps with the defense if a lawsuit is filed.

About the Author

Dede K. Zupanci focuses her practice on health care defense litigation and regulatory matters, including: physician and nursing professional liability, hospital premises liability, nursing license disciplinary actions and hospital regulations and compliance. She has represented clients in Illinois and Missouri, including metropolitan and rural hospitals, as well as nurses and physicians. She is a graduate of Saint Louis University (J.D.) and Southern Illinois University – Carbondale and is a member of the Illinois Association of Defense Trial Counsel, Madison County Bar Association and St. Louis Area Health Lawyers Association. Dede resides in Edwardsville, Illinois.