No Good Deed Goes Unpunished
Delmar Drum, DC, failed to follow his normal protocols when treating an employee who was a former patient.
Posted in Risk Management on Thursday, February 6, 2020
Paula Channel, a previous patient of Delmar Drum, DC, later became his employee. Mrs. Channel developed pain and discomfort in the posterior region of her neck, in the right occipital area, while doing heavy rope exercises in the office’s rehabilitation room. She told Dr. Drum about her pain, and he performed a diversified chiropractic adjustment at C2 and C5 with normal movement. It was a right- and left-sided adjustment.
No history was recorded, no intake form was completed and there was neither verbal nor written informed consent. No orthopedic nor stroke screening neurological tests were performed. No chart notes were kept.
Immediately after the adjustments, Mrs. Channel felt sharp, excruciating pain in her head and fell to the floor. She was extremely nauseous and sweating profusely.
Dr. Drum left and returned with a fruit drink, asking Mrs. Channel if she wanted some sugar. The patient declined and went to the bathroom for about 20 minutes. When she returned, she did not appear to feel better. Mrs. Channel’s husband was called, but emergency care was not sought. When Mr. Channel arrived, he asked Dr. Drum whether his wife had suffered a stroke. Dr. Drum replied that he checked for that and she had not.
Mr. Channel took her home, but as her condition remained unchanged, he took his wife to urgent care later that day. Mrs. Channel told the onsite doctor that she had some nausea and dizziness before the chiropractic adjustment. Additionally, immediately after the adjustment, she said she felt violent heavy pressure in her head and extreme pain. She said she was dripping with sweat, extremely nauseous and fell to the floor as the room was spinning and then went black.
Mrs. Channel stated that at the time of her presenting to urgent care, the spinning had resolved, but she still “didn’t feel right” and the nausea persisted. Urgent care incorrectly diagnosed her with cervicalgia and benign positional vertigo.
Over the next three days, Mrs. Channel felt no better and minimized her activities, hoping that her symptoms would dissipate. On the fourth day, Mrs. Channel tried to return to work, where Dr. Drum suggested more adjustments, but she refused.
Later that day, Mrs. Channel consulted her primary care physician who ordered an MRI. She then went to a local hospital where a CT scan was performed and was diagnosed with right cerebella ischemia and injury to the left internal carotid artery.
Nineteen days after the adjustment, Mrs. Channel was still not feeling well and returned to the hospital for a follow up appointment. At that time, additional imaging was performed and she was diagnosed with a left vertebral artery dissection and a stroke.
There was a dispute as to whether Dr. Drum referred Mrs. Channel to the ER for further evaluation after the adjustment when Mrs. Channel began to have immediate sharp, excruciating pain. Mrs. Channel disputed that Dr. Drum did so. The fact that he brought her a fruit drink seemed to imply that he thought Mrs. Channel had a low sugar problem as opposed to an emergency situation.
Considerations with Courtesy Adjustments
Many chiropractors provide “courtesy” adjustments to family, friends, employees and other health care providers. This is a common occurrence among the chiropractic community as these adjustments are not viewed as part of a treatment protocol, but rather just complimentary maintenance.
Complimentary adjustments take only a couple of minutes, the person adjusted is not perceived as a patient and payment is not received for the adjustment(s). Therefore, chiropractors may not follow their normal protocols. For example, they may feel there is really no need to obtain completed intake forms, take a history, conduct a physical examination, provide informed consent, reach a working diagnosis or even keep chart notes.
Of course, although there is no pass to skip these requirements, somehow practitioners typically act as if the examinations and paperwork are really not necessary under the “complimentary” circumstances.
Every state in the United States has a chiropractic board that has formulated rules and regulations that the chiropractor is mandated to follow. No two states have identical rules and regulations; however, there is not a single state that exempts the mandated examination and recordkeeping requirements for patients who only have a casual adjustment with their chiropractor friend/relative/employer.
Despite offering chiropractic services as a courtesy, by providing these services, the doctor has entered into a doctor/patient relationship. Additionally, depending upon the state and the magnitude of the violation of the rules and regulations of that state, the chiropractor is risking private or public reproval, probation, suspension or even license revocation.
The state boards are consumer protection agencies. Their primary purpose is to protect the consumer NOT the chiropractor. The board sanctions are not based upon harm resulting from the practitioner’s actions, as much as the extent and intent involved in the violation the state’s mandated rules and regulations.
Upon review of the risks of chiropractic included in the chiropractor’s informed consent forms, it is clear that none of those risks require a “formal” written doctor/patient relationship before the risk can occur. Not one of them!
If any of the risks listed on a typical informed consent form occurs, a chiropractor’s defense may be jeopardized. This is especially the case with more serious allegations, such as stroke or disc injury. The chiropractor may find himself/herself embroiled in litigation without intake forms, a history and physical, a diagnosis, proof that informed consent was provided, or any chart notes to overcome the patient’s claims of malpractice and/or the board’s claims of regulatory violations.
The basic questions in a malpractice case involve whether the chiropractor’s actions fell below the standard of care, and if so, did those actions cause injury. In a board matter, the primary question is whether the chiropractor complied with the required rules and regulations. In either case, documentation to support a claim that the chiropractor acted as a reasonable, knowledgeable and skilled practitioner will be nonexistent.
Imagine a situation in which a chiropractor meets a person on the street, strikes up a friendly conversation during which it is revealed that he/she is a chiropractor and the new acquaintance then discloses that he/she has had some neck stiffness for a few days. It is almost unthinkable that the chiropractor would simply proceed to manipulate that person’s neck without conducting the formalities required of the profession.
Although it would seem implausible that the above situation would occur, the underlying fact pattern changes only slightly when a relative brings over a friend at a party, explaining that the friend has some neck stiffness and would love it if the chiropractor could perform one of his/her “miracle cures” with a quick and easy cervical adjustment. Changing the requesting friend’s identity to a relative, a close friend, an employee or a fellow health care provider provides no additional protection.
No state in the United States has carved out an exception to the formalities required of the chiropractor when adjusting someone else, whether as part of that state’s rules and regulations, or as an exception to the requirement of acting within the standard of care. Nor does causation depend upon the legal relationship between the chiropractor and the person adjusted.
A family member, friend, employee or other health care provider faces the same risks from chiropractic procedures as a formal patient. In fact, that person is actually more likely to suffer an adverse reaction. That is because the chiropractor will not have the benefit of considering the completed intake forms, a history and physical, an examination revealing information that could lead to a working diagnosis, disclosing risks identified in an informed consent form and maintaining chart notes to compare previous to present and future presentations of the patient.
The best of intentions will not change the potentially Draconian results of the chiropractor’s friendly, undocumented, unexamined courtesy “simple” adjustment.
Edward C. Stark is a partner at Cron, Israels & Stark, in Santa Monica, as well as an adjunct professor of law at Southwestern School of Law, teaching Torts, and Medical Malpractice. Mr. Stark is one of California’s leading attorneys covering torts, medical malpractice, business litigation and professional licensure defense. He has tried to verdict in excess of 75 jury trials and more than 200 court trials.