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Factors Snowball to Make for Challenging Case

Amy Paul dropped out of high school to become a model. She continued to work as a model throughout her 20s and early 30s, at which time she started taking courses in fashion design, performance art, general education and cosmetology.

Amy attended a performance art school from 2007–2011, where she participated in various movements representing intervals in music, sound and speech.

Amy first saw Sue Macklane, D.C., on August 24, 2007, for neck and upper shoulder discomfort caused by her school-related activities. She also complained that her low back felt “pinchy,” which Dr. Macklane believed was caused by a subluxation at L4-5. Between August 2007, and March 5, 2008, Dr. Macklane saw Amy approximately once per week with treatment focused on Amy’s neck and shoulder symptoms. Amy described her low back complaints as “a minor issue.”

After the March 5, 2008, appointment, there was a gap in treatment before Amy returned to Dr. Macklane’s office in January 2009. During this interval, Amy treated periodically with her PCP who specialized in homeopathic medicine. Amy saw this doctor for a variety of reasons, including neck, shoulder and back complaints. She was given a variety of homeopathic remedies—including seven injections of bee venom into her buttocks—for treatment of her low back pain. However, these remedies did not relieve her pain.

Amy returned to Dr. Macklane’s office on January 22, 2009, with complaints of left shoulder, hip and low back pain. This treatment period lasted until May 19, 2009, during which Amy was treated by Dr. Macklane and Ken Scarpino, D.C., an independent contractor in Dr. Macklane’s office. Dr. Scarpino worked in Dr. Macklane’s office two days per week and in his own office three days per week.

On January 4, 2011, Amy returned to Dr. Macklane’s office and was seen by Dr. Scarpino. She complained of a nagging tightness in her left gluteus medius and pain at 6 out of 10 in severity. Dr. Scarpino performed a re-evaluation at this appointment and found the Bechterew’s test was mildly positive on the left and negative on the right. The straight leg raise test was positive on the left when Amy was at 110 degrees with full force dorsiflexion, and it was negative on the right. The left extensor halluces exhibited weakness (4/5) on resistive testing. Ely’s and Yeoman’s tests were mildly positive on the right.

Dr. Scarpino performed adjustments at L5–S1 level, at the left sacroiliac joint and performed a transverse friction massage to the left lateral sacroiliac attachments. In addition, Dr. Scarpino applied moist heat packs to the left hip and low back, and performed an active release technique to the left piriformis, left tensor fasciae latae and left gemellus. His differential diagnosis was subluxation versus piriformis syndrome versus gemellus syndrome versus disc problem.

Amy returned to Dr. Macklane’s clinic on January 6, 2011, and was treated by her. She also received treatments on January 11, 2011, and January 20, 2011. It was unclear from Dr. Macklane’s notes whether Amy’s pain had improved, worsened or stayed the same. Adjustments were performed to L5–S1 and the left sacroiliac joint at all three visits.

Patient Returns After a Gap in Care

Amy didn’t return to Dr. Macklane’s office again until July 14, 2011. Her pain centered in the left sacroiliac and buttock, with radiation from the posterior thigh to the posterior knee and mildly to the lateral calf on the left side. She asked Dr. Macklane whether she should have an X-ray, and Dr. Macklane replied that X-rays were not a valuable tool under the circumstances, and an MRI would be needed to visualize the spine properly. However, Dr. Macklane told Amy she would not recommend an MRI because it would only show whether there was a disc problem. What’s more, even if Amy did have a disc problem, this would not alter Dr. Macklane’s recommended treatment. Therefore, Dr. Macklane advised Amy not to have the MRI done and save the $2,000 cost. At this visit, Dr. Macklane performed adjustments to the left sacroiliac and L5–S1 using the flexion and distraction technique.

The next and final date Dr. Macklane treated Amy was July 19, 2011. Her pain level was unchanged from the July 14 visit. Dr. Macklane performed flexion distraction therapy at L4–5 and trigger point therapy and transverse friction massage to the left gluteus minimus and left sacroiliac joint and buttock.

Amy wasn’t satisfied with the minimal relief she was experiencing from Dr. Macklane’s treatment, so on July 28, 2011, Amy contacted Dr. Scarpino who agreed to treat her. Dr. Scarpino made a house call to the home where Amy was staying, arriving between 7:00 and 8:00 p.m. He brought with him his portable adjustment table and some celery extract that he believed could inhibit pain signals. Amy stood up to greet him when he arrived, but she was unable to walk due to her pain.

It was Dr. Scarpino’s normal protocol to have first-time patients complete intake forms. He brought blank forms to Amy’s appointment, but she complained she was in too much pain and would complete them later.

Amy reported her back pain began 13 months earlier and had been slowly worsening. The pain was provoked by sitting, lying down and with almost any motion or position. She complained of an achy back with pain in the left-sided buttock and in the left posterior thigh that radiated halfway down the thigh. She said the pain “rarely went any further.” Dr. Scarpino performed Grade III, IV and V mobilizations to L2, L3, L4 and T4, with Grade V being the high-velocity, low-amplitude CMT.

Amy made no complaints. When they parted ways, Dr. Scarpino asked Amy to telephone him the next day with a status update, and he planned to see her at his office on Saturday, July 30. Amy telephoned Dr. Scarpino on July 29, 2011, but she did not leave a message.

Doctor Transports Patient to His Office

On July 30, 2011, Amy telephoned Dr. Scarpino before 9:00 a.m. and told him she was having severe aching pain in her perineum. Dr. Scarpino came to Amy’s friend’s house again, helped her into his car, and drove to his office with Amy lying down in the front passenger seat covered by a blanket. When they arrived at his office, Dr. Scarpino had to assist Amy into his office because she was hunched forward at a 45-degree angle.

Dr. Scarpino had Amy lay on a table and gave her a five-minute massage. Several times during the massage, Dr. Scarpino applied pressure to Amy’s lower back, and she told him that it was too painful to continue. When that happened, Dr. Scarpino would either lighten his touch or move to a different area of her body. Dr. Scarpino then applied heat packs to Amy’s back. He did not perform any chiropractic manipulations on this date.

Dr. Scarpino then drove Amy back to a different friend’s house. On the way, Dr. Scarpino bought Amy a bottle of women’s multivitamins, and he advised her to take the vitamins, as well as Advil and hot baths. He assured Amy she would be okay.

Patient Goes to Hospital

That night Amy took a hot bath but found it uncomfortable. She awoke at 5:00 a.m. the next day screaming in pain. She had numbness and tingling going down both legs. Her back pain had worsened. Her friend assisted her to her car and helped her lay down in the back seat. She then drove Amy to the hospital.

Upon arriving at the hospital, Amy complained to the triage nurse of numbness to her buttocks, thighs and perineum. She denied any bowel or bladder changes. She gave the history that her back pain first presented nine months earlier while participating in a dance class. Since then, she had been receiving conservative treatment but her symptoms hadn’t improved.

When examined by the ER physician, there was positive lumbosacral tenderness and spasm. A stat MRI was ordered that revealed a “huge, extruded partially sequestered disc herniation at L5–S1, virtually obliterating the thecal sac.” It also revealed disc material impinging upon the left S1 nerve root. Amy received pain medication and steroids, but still complained of severe back pain and paresthesia to the inner thigh and vaginal regions.

Amy was immediately referred for a neurosurgical consultation, and in turn, she was advised to undergo immediate surgery. On the same day Amy presented to the ER, she underwent a left sided L5–S1 laminotomy and discectomy. The pre-operation diagnosis of cauda equina syndrome with massive L5–S1 disc herniation mirrored the post-operation diagnosis.

Amy was discharged home from the hospital three days postoperatively. After removing the Foley catheter, which had been present since her hospital admission, she had no urinary control and went home wearing diapers. She felt a constant urge to void with a tremendous amount of urgency and frequency. She also had small volume voids and a sense of incomplete emptying. Amy purposely began to limit her fluid intake. For quite some time, she was too embarrassed to leave home, given the severity of her urinary symptoms. After 4–5 months, Amy’s condition ultimately improved enough that she could wear panty shields instead of diapers, and she has used them ever since.

Lawsuit Ensues

On October 1, 2012, Dr. Macklane was named a defendant in a lawsuit brought by Amy Paul (the plaintiff). Dr. Scarpino was also named a co-defendant in the lawsuit. The plaintiff claimed that Dr. Macklane treated her over a prolonged interval and failed to: appreciate her worsening signs and symptoms; diagnose a lumbar disc herniation; and refer her for a medical evaluation or MRI.

With regards to Dr. Scarpino, the plaintiff claimed he failed to diagnose the disc herniation and undertook to treat the plaintiff on July 28, 2011. The lawsuit claimed he did so despite Amy Paul’s history of worsening symptoms, and without referring her for an MRI or medical evaluation or first consulting with Dr. Macklane. The plaintiff also claimed that Dr. Scarpino treated her without proper equipment. Finally, there was a lack of informed consent claim, as well as a loss of consortium claim filed on behalf of the plaintiff’s husband.

Upon being sued, Dr. Scarpino promptly contacted NCMIC to report this matter. In turn, the NCMIC claims representative retained an attorney to protect Dr. Scarpino’s interests in this action. Dr. Macklane was insured with another carrier and that carrier also retained counsel. Dr. Scarpino carried a policy limit of $1 million with NCMIC. Dr. Macklane’s policy limit was $500,000. During discovery, it was learned the plaintiff’s claimed damages included:

  • Cauda equina syndrome
  • A massive L5–S1 disc herniation, requiring an emergency laminectomy and discectomy
  • Low back pain, buttock pain and thigh pain
  • Numbness in the gluteus, vaginal and perineal areas
  • Loss of bladder control, including stress incontinence when she coughed, sneezed or laughed
  • Sudden and frequent urges to urinate and occasional bed wetting
  • Painfully heightened genital sensitivity
  • Constipation and inability to control the passage of flatus
  • Altered sexual function

It was Amy Paul’s contention that she could no longer perform as a dancer at her previous level. She made a claim for lost earnings, as well as loss of earning capacity in the amount of $750,000. She contended her out-of-pocket expenses totaled $93,044. In addition, she claimed that her non-economic damages exceeded the jurisdictional limit of $1 million.

While Dr. Macklane made a knowledgeable witness, she came across as vague, evasive and defensive regarding whether a doctor should recommend an MRI for patients with low back pain. She testified that the plaintiff was not a candidate for an MRI between January 2011 and July 2011. Yet, she testified that she recommended an MRI anyway because Amy Paul was somewhat of a noncompliant patient. This recommendation was not charted in Dr. Macklane’s records.

Since the plaintiff only reported 10–20 percent improvement in her low back pain while treating with Dr. Macklane, Dr. Macklane was vulnerable to the plaintiff’s argument that the ongoing treatment caused the herniation to progress over time. Dr. Macklane’s defense attorney privately expressed to Dr. Scarpino’s attorney that he believed the plaintiff’s counsel would be able to convince a jury that Dr. Macklane failed to diagnose the disc herniation because she did not order appropriate referrals or diagnostic testing.

Doctor’s Charting Becomes an Issue

Dr. Scarpino’s entire chart on Amy Paul consisted of a one-page handwritten note recorded on a blank sheet of white paper. As previously stated, Amy was in too much pain to complete the intake forms at the house call on July 28. Furthermore, Dr. Scarpino had no notes referencing his telephone calls with the plaintiff and no billing records. (He recalled Amy paid him in cash, which raised IRS issues.)

Dr. Scarpino testified that he strongly disagreed that he should have obtained an MRI and made a definitive diagnosis of a disc herniation before commencing treatment on July 28, 2011. Although he hadn’t determined the etiology of the plaintiff’s pain, his impression included left sacroiliac joint dysfunction, piriformis syndrome, lumbar subluxation or even a disc herniation (although the latter was not high on his differential). He also said that he didn’t contact Dr. Macklane before starting treatment because he didn’t feel it was particularly relevant how Dr. Macklane had treated the plaintiff. Dr. Scarpino also acknowledged that he had not discussed any risks of treatment with the patient.

After the July 28, 2011, house call, Dr. Scarpino made an addendum to his note. He had written that red flags for treatment would include bowel and bladder dysfunction, but he added in red pen, “*which she denies.” The plaintiff contended that Dr. Scarpino made this change only after learning of the cauda equina syndrome and surgery.

After the depositions of Dr. Macklane and Dr. Scarpino, the plaintiff made an offer of judgment for Dr. Macklane’s $500,000 policy limit and for Dr. Scarpino’s $1 million policy limit. Lacking chiropractic-specific knowledge and facing pressure from Dr. Macklane’s insurance carrier to settle quickly to avoid future litigation costs, her attorney was inclined to accept this offer. He convinced Dr. Macklane that she was at a significant risk for a verdict in excess of her policy limit, which resulted in her accepting the $500,000 demand. In contrast, Dr. Scarpino wanted to pursue an aggressive defense, and NCMIC stood by him. Therefore, his NCMIC-retained attorney rejected the offer of judgment, which resulted in Dr. Scarpino being the lone defendant in this lawsuit.

The plaintiff retained a urology expert who conducted an independent medical exam (IME) of the plaintiff. His opinions were similar to the plaintiff’s testimony in that he found that Amy suffered from stress incontinence when she coughed, sneezed or laughed. He didn’t doubt that the plaintiff experienced sudden urges to urinate with a frequent need to rush to the bathroom. He also believed the plaintiff’s contention that she occasionally wet the bed and had painfully heightened genital and pelvic sensitivity with altered sexual function.

Amy Paul retained a chiropractic expert who opined that Dr. Scarpino failed to diagnose a herniated disc, treated her despite worsening symptoms that were unresolved by Dr. Macklane’s treatment, failed to refer her for a medical evaluation, MRI or other diagnostic testing, and treated her without the proper equipment. The expert alleged these failures caused or exacerbated a massive herniation and the cauda equina syndrome.

Defense Experts Weigh in

On behalf of Dr. Scarpino, NCMIC retained an expert chiropractic consultant. This doctor believed that Dr. Scarpino’s defense faced substantial challenges. He had difficulty reading and understanding Dr. Scarpino’s records and underscored that Dr. Scarpino’s single page of notes without a patient file or billing records would make this claim nearly indefensible. He felt the notes were far too limited in content and did not document an adequate neurological exam or the findings.

This D.C. expert reviewed the MRI films and said they showed “the largest herniation he had ever seen.” He didn’t believe the herniation was caused by the chiropractic manipulation but instead developed time. Unfortunately, he believed Dr. Scarpino’s treatment on July 28 may have caused the disc to impinge on the nerves at S1. He acknowledged that while there is no way to definitively determine what triggered the eruption of the herniation, the last manipulation “was likely the culprit.” According to this expert consultant, the following factors made Dr. Scarpino appear unprofessional:

  1. The house call, which is largely unheard of in the chiropractic community
  2. That Dr. Scarpino drove the plaintiff to and from his office
  3. The sparse notes
  4. The lack of any billing for cash payments/intake paperwork

Dr. Scarpino’s defense team also retained an expert urologist to review and comment on the examination report by the plaintiff’s urology expert. This expert advised against a defense IME because he thought it would be very difficult to disprove the plaintiff’s urologic complaints without invasive testing that would involve catheterization. It would be even more difficult to disprove the plaintiff’s complaints of sexual dysfunction because they would be subjective in nature.

Settlement Discussed

At the end of discovery and prior to trial, the court ordered the plaintiff and Dr. Scarpino to mediate the claim. Prior to mediation, Dr. Scarpino’s attorney estimated the settlement value of this claim—after the $500,000 setoff from Dr. Macklane’s settlement—was $750,000 to $850,000. He believed a sustainable jury verdict value after the setoff was between $1.2 million and $1.5 million. He also believed that he could only successfully defend Dr. Scarpino two to three times out of 10. After this discussion, Dr. Scarpino provided his written consent to settle prior to the mediation.

At mediation, the plaintiff’s initial settlement demand was $1 million, Dr. Scarpino’s policy limit. The NCMIC claims representative who attended the mediation valued Dr. Scarpino’s claim to be worth substantially less than the estimated values Dr. Scarpino’s attorney had placed on the claim. Over time, the mediator started to agree with the claims representative’s arguments that Dr. Macklane was much more culpable than Dr. Scarpino. The main reason for this agreement was that the herniation developed over time and Dr. Macklane never obtained MRI imaging, despite the fact that the plaintiff had not improved over a long interval.

The mediator made headway with this argument and steered the plaintiff to view this case as one where Dr. Macklane was probably twice as culpable as Dr. Scarpino with regards to the plaintiff’s damages. As a result, and with a lot of back and forth negotiating, Dr. Scarpino settled for less than one-half of what Dr. Macklane did.

NCMIC’s legal expenses to defend Dr. Scarpino totaled $141,886.

What Can We Learn?

By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island

Out-of-the-Ordinary Factors

When cases go to trial, the minutest of details can be scrutinized, making even appropriate care seem unusual or bizarre. In this case, Dr. Scarpino’s house calls and transportation of Amy Paul would be considered unusual in chiropractic. In addition, the fact that the patient was in distress should have heightened clinical red flags for the doctor to consider.

Treating on “Auto Pilot”

Both doctors Macklane and Scarpino failed to recognize clear signs the patient’s clinical condition was deteriorating. Continuing to treat when there are no signs of progress is a recipe for disaster. Even a cursory re-evaluation of Amy, coupled with a review of the clinical record, may have raised the level of clinical suspicion.

Documentation is Multi-faceted

When a patient has deteriorating symptoms, scrupulous documentation is essential. In this case, both doctors opened themselves up to expert criticism about their clinical judgment and management. What’s more, the IRS could have contended that Dr. Scarpino committed fraud for receiving an undeclared cash payment. This allegation, even if unfounded, could have presented an unfavorable image of the doctor’s ethics and negatively impacted his defense.

Altered Records

With multiple areas of the doctors’ clinical judgment under scrutiny, it would have been disastrous if the altered records came to light in a courtroom. Altered records are nearly impossible to defend because they speak to a doctor’s credibility.

Independent Contractor

Dr. Macklane hired Dr. Scarpino as an independent contractor, but she did not ensure they were covered by the same malpractice insurer. As a result, the doctors’ interests became misaligned during litigation, which is never good. Also, it would have been beneficial if the practice would have had treatment guidelines in place for the independent doctor to follow. For example, how should the clinical records in the original office be updated to show care rendered outside of the office? How will fees be recorded to maintain contemporaneous records?

Defense Expertise

In this case, the standard of care and causation experts for the defense could not support Dr. Scarpino’s care. However, the defense team was able to settle for less than policy limits due to their rational and persuasive arguments at mediation.

Coverage Limits

In this case, Dr. Scarpino had adequate policy limits that enabled negotiations during mediation and would have reduced the likelihood of an excess verdict had the case gone to trial. In contrast, Dr. Macklane did not have enough coverage to allow her to try the case if her counsel felt it was in her best interest. Always confirm you have enough coverage and are in compliance with board regulations.

Jennifer Boyd Herlihy is healthcare defense lawyer with the firm of Adler / Cohen / Harvey/ Wakeman / Guekguezian,LLP, located in Boston, Mass., and Providence, R.I. She represents chiropractors and other healthcare providers in matters related to their professional licenses and malpractice actions. The firm’s website is www.adlercohen.com.

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