Experts Bolster Defense in Patient Burn Case

Adrian Anagnos, a 62-year-old owner of a Greek restaurant, initially presented to the office of Dennis Stephan, DC, with complaints of chronic neck pain he'd experienced for years. His symptoms had progressed to also include tingling in his right thumb and other radicular symptoms.

Posted in Risk Management on Friday, May 29, 2020

The patient’s history included that an epidural injection administered by a spinal surgeon six months earlier did not relieve Mr. Anagnos’s symptoms, and an MRI of his cervical spine revealed severe degenerative disc disease. The MRI also showed disc bulging and prominent osteophyte formations, central spinal canal narrowing at C3 through C5, and bilateral neural foraminal narrowing from C3 through C7.

After Dr. Stephan obtained Mr. Anagnos’s history, he conducted an exam, focusing on his cervical spine and upper extremities. The DC had the MRI report faxed to him before initiating treatment, and he concluded the findings were consistent with the patient’s symptoms.

Dr. Stephan recommended care, and his chiropractic assistant (CA) treated Mr. Anagnos with 15 minutes of interferential muscle stimulation (IMS) with hot packs followed by ultrasound therapy to the cervical spine. Dr. Stephan then performed soft tissue manipulation and chiropractic adjustments to the patient’s cervical spine.

Mr. Anagnos’s initial visit to Dr. Stephan took place in the late afternoon, and treatment was uneventful. Before leaving the office, Mr. Anagnos made another appointment with Dr. Stephan for two days later. The patient appeared to be in good spirits and made no complaints about his treatment.

The following day, just before noon, Mr. Anagnos called the office and spoke to Dr. Stephan’s CA with complaints of pain and itchiness in his back after the initial treatment. Mr. Anagnos shared that his wife observed him scratching that night, and in the morning, she noticed a large blister on his back.

Mr. Anagnos’s next appointment on Friday was cancelled, but at his visit the following Monday, he reported his neck complaints were unchanged. Additionally, he pointed out the large burn on his back and wondered whether it could have been caused by the therapy applied by the chiropractic assistant.

Dr. Stephan observed what appeared to be a circular burn of approximately three inches in diameter, located at approximately the T9 level and just to the right of the midline. The burn was partially covered by a blister, red in appearance, and was wet and painful to the touch. Dr. Stephan’s impression was that the patient had a second- or third-degree burn. Based upon the location and configuration of the burn, Dr. Stephan told Mr. Anagnos that the therapy could not have caused the burn.

He instructed Mr. Anagnos to see his primary care physician (PCP) who prescribed Silvadene cream. There was nothing in the notes to indicate what the PCP thought caused the burn.

Mr. Anagnos treated with Dr. Stephan six more times during the next two weeks. In this time, Mr. Anagnos never complained about his treatment nor did he indicate belief that the burn was caused by his chiropractic treatment. Mr. Anagnos was planning a lengthy trip to Greece, and he left Dr. Stephan’s care as a result. Throughout his treatment, Mr. Anagnos did not experienced significant relief from his neck complaints.

The Lawsuit

Nearly two years later, Mr. Anagnos filed a lawsuit against Dr. Stephan in which the patient claimed he was burned during chiropractic treatment.

In his deposition testimony, Mr. Anagnos stated he was left unattended during his first visit while Dr. Stephan’s CA placed electrodes and hot packs on his neck and shoulders. He described experiencing a burning sensation on his back and crying out for help, but said no one came to assist him and he was unable to remove the device on his own. Eventually, the therapy timer sounded, and the CA returned to remove the electrodes and hot packs. Mr. Anagnos said he told both Dr. Stephan and his CA that he had been burned.

Dr. Stephan testified that his CA, who was unable to testify due to being out of the country, had placed IMS electrodes on Mr. Anagnos’s cervical spine, covered them with layers of towels and then placed the hot packs on top of the towels. Following this therapy, Dr. Stephan had performed soft tissue massage and chiropractic manipulation therapy on Mr. Anagnos’s cervical spine while the patient was shirtless. Dr. Stephan testified that he observed nothing unusual about Mr. Anagnos’s back.

Dr. Stephan also denied that Mr. Anagnos told him he had been burned. He added that Mr. Anagnos went to the reception desk after therapy and made an appointment for the following Friday, two days after his first appointment. It was not until the patient’s next visit to the office—on Monday because Mr. Anagnos canceled his Friday appointment—that Dr. Stephan observed the burn on the patient’s back.

Shortly after the lawsuit was filed, Dr. Stephan’s claims team retained a chiropractor consultant to review the case and act as an expert witness for Dr. Stephan’s defense. The consultant had previous experience testifying as a chiropractic expert, including cases involving burns allegedly caused by the chiropractic treatment.

The consultant reviewed Mr. Anagnos’s and Dr. Stephan’s deposition testimony, Dr. Stephan’s records, and photographs of the patient’s burn. He ultimately concluded that Mr. Anagnos’s burn could not have been caused by Dr. Stephan’s treatment; it must have been caused by something outside of Dr. Stephan’s office. The consultant noted:

The circular shape of the burn on Mr. Anagnos’s back was not consistent with the large rectangular shape of the hot packs used in Dr. Stephan’s office.

The burn was located well below the area of the patient’s cervical spine and shoulders where the hot packs were placed.

Hot packs are the most common source of burns from therapeutic modalities, and burns may occur if there are not adequate layers of terrycloth towels placed to protect the patient’s skin. Dr. Stephan’s deposition established that the hot packs were placed inside a terrycloth envelope and then on top of folded towels before resting on the patient’s skin.

There is a high correlation between burns and patients with diabetes mellitus. Additionally, individuals with metal implants, such as artificial joints, may be at risk for burns when IMS is applied to that area (full-thickness burns have been reported). A more common adverse reaction to IMS is contact dermatitis, which may present similar to a burn. This can be due to a reaction to the propylene glycol in the gel or the material in the electrodes, such as rubber or metal. However, none of these were factors in Mr. Anagnos’s case.

Burns can occur during IMS therapy if a chiropractor reuses the pads. Then the interferential current transmitted through the pad can become magnified. For example, if only one-half of the pad adheres to the patient’s skin, the current transmitted through the remaining half of the pad is doubled. Magnifying the current in this manner can burn the patient’s skin under that area of the pad.

The Outcome

Mr. Anagnos’s case against Dr. Stephan was tried before a jury. The plaintiff presented testimony of a chiropractor expert witness who testified that the most likely cause of Mr. Anagnos’ burn was Dr. Stephan’s treatment.

In his defense, Dr. Stephan testified that his treatment was uneventful, and he saw no evidence of a burn when he performed soft tissue and chiropractic manipulations after the interferential muscle stimulation treatment. Dr. Stephan’s counsel then presented testimony from his own chiropractic expert who testified that the location and configuration of the burn was such that it could not have occurred during the chiropractic treatment.

Dr. Stephan’s defense team also presented the circumstances surrounding the treatment. This included the fact that Mr. Anagnos went several more times for chiropractic treatment with Dr. Stephan, which indicated he was not dissatisfied with his care. It also was inconsistent with his claims of being injured by Dr. Stephan during his first visit.

The jury agreed that the patient’s conduct after the first visit reflected satisfaction with Dr. Stephan’s treatment. They concluded a reasonable patient would not continue to return for treatment if they believed their chiropractor caused the injury. They also could not understand how Dr. Stephan’s treatment could have caused Mr. Anagnos’s burn. After a short deliberation, the jury found in favor of Dr. Stephan.

What Can We Learn?

In rare instances, burns can occur during interferential muscle stimulation therapy. Occasionally, these are a result of inherent risks of the therapy; other times they are avoidable due to the manner of treatment.

If interferential muscle stimulation therapy is indicated based upon the patient’s presenting complaints and findings on physical examination, consider whether any contraindications are present for that therapy. A diabetic patient may have decreased sensitivity in the area where the treatment is applied and may be more susceptible to burns. A patient with metal prosthetic joints is at risk for burns if the therapy is administered over the implant.

Check the integrity of the skin in the area where the electrode will be placed. If irritation of the skin is apparent, such as redness, a rash or a lesion, applying the electrode to that area is not advisable.

Be aware that electrode pads that are overused and have lost some or all of their adherent capability place the patient at risk for a burn due to the magnification of the current in the portion of the pad that is adherent to the skin.

Patients may claim burns caused by an outside source resulted from their chiropractic care. The best way to successfully defend against such claims is to clearly document in the patient’s record their response to therapy. A post-treatment note reflecting, “The patient tolerated the therapy well” or “The patient felt better after treatment” would be very useful in defending unfounded claims of a burn caused by the treatment.

In terms of the lawsuit, Dr. Stephan was fortunate that his defense team obtained excellent experts that made his defense verdict possible.

Randall C. Monroe and Austin C. Monroe are partners at the Chicago law firm of Brenner, Monroe, Scott & Anderson, Ltd. Their practice is concentrated in the defense of healthcare malpractice cases, including the defense of chiropractors. For more information, visit www.brennerlawfirm.com.