Off-the-Record Treatment Hinders Doctor's Case
Living with intense, "blow-torch" right shoulder and arm pain, 47-year-old Gail Hill had a discectomy with fusion and plating at C5–C6 performed by a neurosurgeon. This greatly relieved her pain.
Posted in Risk Management on Tuesday, September 4, 2018
About one year later, Ms. Hill was working at the city water works department when she started experiencing symptoms of numbness and tingling in her hands and wrists. When her symptoms didn’t improve, she submitted a workers’ compensation insurance claim for carpal tunnel treatments.
Ms. Hill’s supervisor recommended she see Tom Gold, DC, and Ms. Hill presented to Dr. Gold for a joint evaluation of her wrists and carpal tunnel syndrome.
Dr. Gold noted:
- Ms. Hill’s history included a discectomy with fusion and plating at C5–C6
- The flexion extension in Ms. Hill’s left wrist was normal, but her right wrist had decreased flexion, and she experienced pain with extension
- The ulnar deviation was normal for the right and left with no pain
- The Phalen’s test was positive on both wrists, which according to Dr. Gold, was an indication of carpal tunnel syndrome
- The Tinel’s test was positive on both wrists, and the Finkelstein’s test was negative on the left but positive on the right
Dr. Gold began treating Ms. Hill weekly, after obtaining approval from the city for the workers’ compensation claim. At the first visit, Ms. Hill complained of pain, spasms and numbness in both hands and pain registering at a “7” out of “10.” Dr. Gold applied ice to her wrists, and he used electronic muscle stimulation, ultrasound and stretching for the carpal tunnel.
Dr. Gold Treats Patient’s Headaches “Off the Record”
Ms. Hill also complained of headaches, which Dr. Gold offered to treat as “off the record” and without charge since Ms. Hill was a low-income, single mother. He also believed if he charted a cervical manipulation, the worker’s compensation carrier would deny her entire claim, including the carpal tunnel injury.
Dr. Gold later recalled doing spinal mobilization on the upper three cervical vertebrae. Dr. Gold said it was his standard procedure to treat the upper three vertebrae of a fusion patient.
Dr. Gold specifically remembered he had Ms. Hill lay supine, cupped her head with his hands, positioned one or two fingertips on the top three vertebrae and turned her head to the side. He used his fingers to mobilize the top three vertebrae as he rotated her head a minimal amount. Dr. Gold did not use his hands to turn Ms. Hill’s head because he was concerned it would irritate the cervical fusion.
Although there was no documentation regarding Ms. Hill’s neck complaints, Dr. Gold’s records showed Ms. Hill’s carpal tunnel pain level as an “8” out of “10.” Dr. Gold later said he believed he adjusted Ms. Hill’s neck that day.
Ms. Hill returned to Dr. Gold’s office the next day complaining of soreness and pain in her neck, and in her right arm, pain and swelling. Dr. Gold treated Ms. Hill with electrical muscle stimulation and ice to the cervical spine, but he didn’t adjust her. Dr. Gold performed two more cervical manipulations that were not charted.
Though Ms. Hill was concerned about her symptoms, Dr. Gold was not alarmed. He believed they were routine in nature. Dr. Gold treated Ms. Hill weekly for the next two months.
Dr. Gold Alleged to be Negligent
Nearly a year after Ms. Hill’s last visit, Dr. Gold received a summons and complaint alleging:
- Dr. Gold was negligent in performing a high-velocity adjustment/manipulation to the plaintiff’s neck
- Dr. Gold had prior knowledge of the plaintiff’s recent neck surgery
- There were no medical or chiropractic indicators to warrant the manipulation
Specifically, Ms. Hill contended the cervical manipulations were without her consent, caused swelling and burning, and resulted in surgery to replace the metal plate. Ms. Hill alleged that the manipulations and subsequent surgeries caused permanent damage to her neck, head, nerves and muscles.
She sought compensation for past and future medical expenses, lost wages, lost future earnings, and pain and suffering. She claimed she had difficulty swallowing, suffered extreme physical and emotional pain, and couldn’t work.
Upon being served with lawsuit papers, Dr. Gold notified NCMIC, and a defense attorney was retained on his behalf.
Discovery Reveals New Information
Medical records revealed Ms. Hill had seen several other doctors after Dr. Gold and didn’t report cervical-related pain until eight months after the adjustments. An X-ray revealed a mature fusion with no evidence of the anchor screws loosening or the plate deviating.
The records also showed that Ms. Hill’s primary care physician had ordered an MRI of her cervical spine, which indicated her previous cervical fusion and fusion plate was securely in place. There was no overt spinal stenosis, and the spinal cord was normal in size and signal without any atrophy or wasting. Mild degenerative changes were noted in the cervical spine.
Moreover, when Ms. Hill saw her neurosurgeon again, he ordered a cervical myelogram and CT scan that revealed a solid fusion at the C5–C6 site and a mild disc herniation at C6 and C7 on the right with nerve compression. Surgery followed with a cervical fusion plate at C5–C6 removed and a discectomy at C6–C7. This included a bone graft and the placement of a locking plate.
The NCMIC defense team retained several experts, and together they assessed the case:
- Dr. Gold failed to document the adjustments in question and the patient’s “blow-torch pain” before her first surgery.
- Diagnostic and imaging studies showed that Ms. Hill’s intense pain was due to carpal tunnel—not a disc.
- The first surgery was ill-advised, and the fusion plate was placed too high, which can cause a disc to wear out quickly. Ms. Hill’s one-year abatement of symptoms was due to the transient nature of carpal tunnel syndrome.
- Ms. Hill’s tests were basically normal, supporting the argument that the chiropractic adjustments did not cause injury.
All in all, the defense team felt the case was defensible, and Dr. Gold wanted to try the case. Therefore, the case went to trial, and the jury returned a unanimous decision in favor of Dr. Gold. NCMIC spent more than $483,000 to defend Dr. Gold.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
Dr. Gold’s undocumented treatment outside the scope of the worker’s compensation case raised doubts about his credibility. Any deviation from standard practice, particularly when it involves undocumented treatment or reimbursement, can be a huge factor in court. It can also contradict state board guidelines.
Informed Consent Can’t Be Ignored
Most cases now include a corresponding allegation of “failure to provide and obtain informed consent.” Most states have mandated the informed consent process while others strongly encourage it.
Adjusting Spinal Fusion Areas
Though manipulation can help restore proper motion in dysfunctional areas of the spine, fused vertebrae can weaken the areas above and below the fusion. Dr. Gold didn’t fully understand the patient’s biomechanics before performing a high-risk manipulation.
Recordkeeping Is Vital
Other professionals may need to take over the patient’s care. In this case, Dr. Gold’s records did not include notes on the therapeutic treatments he performed or their progress and purpose, creating another hurdle for his defense.
Jennifer Boyd Herlihy is healthcare defense lawyer with the firm of Adler / Cohen / Harvey / Wakeman / Guekguezian, LLP, located in Boston, Massachusetts, and Providence, Rhode Island. 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.