Doctor's Behavior Hampers His Defense

Despite having knowledgeable experts who were willing to testify on the doctor's behalf on the standard of care issue, a settlement became the doctor's best option after it was revealed that aspects of his behavior would be difficult to overcome.

Posted in Examiner eNewsletter on Thursday, January 21, 2021

The Situation

Mitch Brown, age 45, had a long history of drug abuse, criminal charges and work-related injuries. He was installing a roof an office building when he injured his low back on November 2, 2012.

With the pain from his injury lingering, Mr. Brown went to his primary health care provider (PCP) later that month. The PCP obtained an MRI, which showed: a L5–S1 disc bulge with central disc extrusion with moderate nerve root compression. The PCP advised watchful waiting and recommended that Mr. Brown seek conservative care, such as chiropractic or physical therapy.

Chiropractic Care

Mr. Brown began chiropractic care with Arlan Penshire, DC, on January 15, 2013, but Dr. Penshire didn’t obtain his prior records, including the MRI results. After initial treatment provided him with pain relief, Mr. Brown wanted to discontinue care, but Dr. Penshire called and persuaded him to return.

Mr. Brown returned for care on April 2, 2013. During a side-posture adjustment, Mr. Brown reported he felt immediate pain and heard a crunching noise in his lower back. Dr. Penshire explained that pain was normal with this type of adjustment and suggested that Mr. Brown ice his back at home.

Mr. Brown went directly home to rest and ice his back but did not improve. In fact, because he was unable to ambulate the next day, he called 911 and was taken by ambulance to the local hospital emergency room. At the ER, he was given pain medications and sent home.  

During the month of April 2013, Mr. Brown was unable to walk and was confined to his bed. He later testified that he had to urinate and defecate into a bucket located on the side of his bed during this period.

Mr. Brown sought additional care and underwent surgery on May 6, 2013. He had a second lumbar spine surgery three years later and cervical spine surgery after that.

The Case

A lawsuit was filed in December 2016; Mr. Brown’s attorney presented medical expenses of $375,000 for his client. Mr. Brown also alleged he had missed approximately 10 months of work due to his injury. During testimony, Mr. Brown claimed Dr Penshire:

• Worsened his disc herniation, causing it to require surgery.
• Should have stopped treating him when Brown asked to discontinue care.

Defense

The defense team retained a neuroradiologist expert to review the records, which confirmed that Mr. Brown had the disc herniation prior to being treated by Dr. Penshire. Records also showed that the herniation did not significantly worsen after treatment. (The neuroradiologist acknowledged there was a 1mm difference in the herniation size before and after the PCP’s MRI.)

The defense team also retained a knowledgeable chiropractic expert to opine on the standard of care issue. This expert testified that is not contraindicated to adjust a patient who has a disc herniation.

Dr. Penshire’s records (or lack thereof) made the case challenging for the defense. Not only did the records lack sufficient detail, they also revealed that Dr. Penshire billed for services that were not provided. This would prove to be a significant hurdle for the defense to overcome as it compromised Dr. Penshire’s as an honest and credible witness.

Also in a strange turn of events, less than a month before the trial date, Dr. Penshire was staying at an all-inclusive Mexican resort and befriended another chiropractor who ended up being the plaintiff’s (Mr. Brown’s) expert. Because neither realized who the other was, Dr. Penshire discussed this case with the plaintiff’s expert, and consequently, the trial date was continued as the expert excused himself from the case.

Another plaintiff’s expert had to be retained. Dr. Penshire asked his office manager to try to convince this expert not to testify against him. It became clear that opposing counsel would bring to light this witness tampering to the full advantage of the plaintiff.

The Outcome

Due to the defense team’s concerns with Dr. Penshire’s documentation and his attempt to influence a witness, Dr. Penshire decided he wanted NCMIC to attempt to settle the case.

Settlement

After significant negotiation in January 2018, both sides reached a settlement of $130,000 before trial. The defense team was able to negotiate this reasonable amount because the plaintiff attorney was concerned that Mr. Brown’s credibility issues — his past criminal background and history of drug abuse — would be used against him. Additionally, the experts for the defense were highly regarded in their fields and would likely be convincing in their testimony.     

Mr. Brown became extremely upset when he learned of the settlement amount, even venting about it on social media while still in the courtroom. Previously, the plaintiff’s attorney had demanded amounts ranging from $600,000 to $2.2 million to settle the case, and apparently Mr. Brown was expecting a settlement more in this range.  

What Can We Learn?

• Obtain prior records. Had Dr. Penshire done so, he may have changed his treatment modality accordingly.
• Listen to the patient. Do not minimize his or her pain.
• Credibility matters. When a DC bills for services not rendered, it is fraud and an ethical issue that hurts the doctor’s defense even if the case has nothing to do with billing issues. What’s more, the doctor in this case further hurt his credibility by trying to influence a witness.
• Do not discuss the case with others. Like the saying goes, “it’s a small world,” and this is particularly true in the chiropractic profession.
• Defense expertise. Despite a case being hampered by the doctor’s actions, the defense team was able to negotiate a reasonable settlement amount in part due to the highly regarded neuroradiologist and chiropractic experts they retained. The defense also researched the plaintiff’s background, which revealed credibility issues they were able to leverage on the doctor’s behalf.