Patient With Questionable History Becomes Dizzy After Care
Samson Jorgenson, DC, was in the prime of his career, had an excellent reputation and had practiced for more than 15 years. Then, all of a sudden, he was notified that 36-year-old Elizabeth Swanson, a patient of about six months, had filed a lawsuit against him.
Posted in Risk Management on Wednesday, December 2, 2020
Swanson first sought chiropractic treatment from Dr. Jorgenson in February 2016. She complained of occasional dull and achy head, neck and shoulder pain. According to the allegations, Dr. Jorgenson did not inform Swanson about the risk of chiropractic manipulative therapy, specifically about the alleged association between chiropractic manipulative treatment and vertebral artery dissection and stroke.
Dr. Jorgenson established a treatment plan of one visit per week for the next three weeks, which produced good results. Afterward, Swanson returned for several months of chiropractic care with Dr. Jorgenson. Her neck pain symptoms were consistently described as “acute.” She also continued to suffer from spasms. Dr. Jorgenson did not obtain X-rays or other imaging of Swanson’s cervical spine, nor did he refer Swanson to another medical specialist for treatment or evaluation.
One day in June 2016, Swanson indicated that her neck pain was more severe and her low back pain was slightly worse. According to Dr. Jorgenson’s notes, “Swanson estimates her neck pain at a 5/10. She presents today with pain worse than it was at her last visit. She states that she is really tight in the neck and her headaches have come back.”
During this visit, Dr. Jorgenson performed a bilateral high-velocity, low-aptitude cervical adjustment utilizing a diversified technique, after which Swanson said she felt dizzy. Dr. Jorgenson thought Swanson was experiencing an orthostatic situation, and after a few minutes, let her drive home.
According to Swanson’s testimony, Dr. Jorgenson examined her pupils after the adjustment and advised her he was checking to see if she suffered a stroke. Swanson also contended that Dr. Jorgenson advised her that dizziness and weakness were common occurrences after cervical manipulation.
The next day, Swanson presented to a local hospital and was diagnosed with a bilateral vertebral artery dissection. The emergency physician stated, “After returning home, she had persistent dizziness and vomiting, a sudden spontaneous severe pain and vomiting while at rest.” A hospital neurologist added, "She presented to the emergency department with severe left sided posterior neck pain, had a headache with associated dizziness that started immediately after having a high velocity, low amplitude, manual manipulation in the cervical spine at her chiropractor's office."
Unfortunately, both hospital physicians attributed the dissection directly to the chiropractic care and treatment. That diagnosis would carry through all of Swanson’s subsequent medical records.
At this point, the allegations against Dr. Jorgenson were that the patient:
- Was unable to work or take care of her household
- Had experienced a stroke that resulted in a cognitive disability
- Was suffering from anxiety, stress, depression and an inability to focus
The defense faced several hurdles. The first was the temporal relationship between the treatment and the artery dissection. Another was the fact that the emergency department physician and neurologist both attributed the dissection to chiropractic treatment.
Additionally, Dr. Jorgenson was converting to electronic medical records and his recordkeeping suffered during the transition. Some of his records contained errors or were incomplete. Others were dropped or carried through. Of significant concern was a systems-generated, carry-over note that said Swanson had acute pain during every visit in her six months of care.
Moreover, although Dr. Jorgenson said an informed consent discussion took place, it didn’t appear in the electronic records. According to Dr. Jorgenson, he previously used a written informed consent form, but he didn’t use one with Swanson as he was trying to transition to an electronic format. Therefore, there was an allegation of a lack of informed consent, which was difficult to defend without the documentation.
Specifically, the allegations against Dr. Jorgenson were:
- He improperly performed chiropractic manipulative therapy, allegedly with too much force and with an unnecessary rotational component.
- He did not conduct pretreatment diagnostic testing for the patient’s acute problems noted in the records. X-rays, additional testing and referrals also were not done.
- A lack of informed consent.
- The patient’s condition was not conducive to chiropractic treatment.
The plaintiff retained two experts. The first was a chiropractic expert well-known for offering opinions against chiropractors who didn’t do things exactly the same way he did. The expert testified that Dr. Jorgenson’s decision to use chiropractic manipulative therapy and perform it improperly was a disastrous mistake. He contended Dr. Jorgenson’s actions led to a dissection and stroke, resulting in numerous patient disabilities.
The other expert retained by the plaintiff was a neurologist who had written extensively about the medical and temporal relationship between chiropractic treatment and dissections and strokes. He was of the opinion that chiropractors cause a tremendous amount of medical problems, and believed this is what occurred in this case.
The plaintiff alleged more than $4 million in damages as follows:
- Loss of earning capacity: $2.225 million for loss of earning capacity and household services. Swanson was the main breadwinner for the family, and she had a master's degree.
- Noneconomic damages: $2 million for pain, suffering and loss of consortium.
- Medical lien for care and treatment allegedly cause by chiropractic care: $66,000.
This was in great excess to the doctor's policy limits, and he was very concerned about his personal financial well-being, his ability to continue to practice and his potential for bankruptcy.
Defense Weighs In
The defense team met with Dr. Jorgenson to review his records and identify what discovery would likely find. Defense counsel emphasized that Dr. Jorgenson must be brutally honest in his deposition testimony, at trial and before the jury. The defense would admit to some deficiencies in the records but explain that they were a result of transferring to an electronic recordkeeping system.
Relative to the informed consent allegation, Dr. Jorgenson would testify that he had discussed the possible risks and complications of this treatment with the patient. It was important to present this information head on as it was anticipated that the patient would testify to the contrary.
The defense team retained two experts — an academic and a practitioner. Both experts were 100 percent supportive of the care and treatment provided. However, they did recognize problems with inconsistencies in the records and the lack of a written informed consent documents. Although it is not a breach of the standard of care not to have an informed consent form, it is a breach not to inform the patient about potential risks and complications. Without a written document, it becomes a “he said/she said” situation, which is what happened when the patient claimed she wasn’t informed about the potential risks of chiropractic care.
As to whether Swanson was a proper candidate for chiropractic care, the defense’s DC expert said this was exactly the type of patient she saw on a daily basis — people who come in with neck pain and spasms, back pain, and headaches. The academic expert was also 100 percent supportive that Swanson was an appropriate patient for this treatment.
Regarding whether the treatment was improperly done, Dr. Jorgenson said, “I did it exactly the same way that I’ve always done it.” At the deposition, the defense was able to get the plaintiff to admit that during the six months she received care, all treatments seemed to be identical.
This was a big admission for the plaintiff, because the defense was then able to get the plaintiff's expert to concede that he had no basis to form an opinion that the manipulations were done improperly. However, the plaintiff's chiropractic expert alleged that even if a manipulation is done appropriately, it could have severe consequences if performed on the wrong patient. He opined that is what happened in this case.
With competing plaintiff and defense experts, the defense team believed they needed a more solid basis to obtain a strong negotiating position in this case. The defense team decided to delve into patient’s background to determine the accuracy of her allegations and any exaggeration about the extent of her injuries.
The defense took the depositions from Swanson, her mother and her husband, allowing them to talk for as long as they wanted to see if some inconsistencies arose. Predictably, the plaintiff and her family significantly embellished the claimed damages, including subjective items such as inability to concentrate, depression, migraine headaches and anxiety.
The defense had previously learned through some background investigation that when Swanson was age 17, she had been hospitalized and treated for depression. At age 18, she was re-hospitalized and treated again for depression. While in college, she was in a drunken altercation with a police officer that resulted in a concussion. Following that, she was treated again for anxiety, depression and migraine headaches. At age 24, Swanson was readmitted to a hospital for depression and anxiety after being physically abused by her boyfriend.
Additional medical records revealed that while Swanson was in college she was diagnosed with severe attention deficit disorder, which would require accommodations at school and at work. This became important because one of her allegations was that she could no longer hold a job because of her inability to focus. Additionally, the patient’s employment history revealed she had lost four prior jobs due to her ability to maintain her focus on the job. This was all before our doctor's care and treatment.
The defense was also able to find a neurology evaluation conducted after Swanson’s stroke in which an independent treating neurologist noted no cognitive disability.
At mediation, the defense disclosed all of this information, which infuriated Swanson and her husband. Another medical record showed that Swanson had been treated for migraines and depression two years before she saw Dr. Jorgenson. These symptoms were brought on by an abusive attack from her husband while she was pregnant.
About two weeks later, the plaintiff's attorney contacted defense counsel, realizing that his client's credibility, reliability and truthfulness had been severely undermined, along with her ability to validate her damages.
Ultimately, the case was able to be resolved for a fraction of the amount that was originally demanded. And more importantly, it was resolved for dramatically less than the doctor’s policy limits. The doctor did not want to have to face a trial and was happy with the outcome.
What Can We Learn?
By Randy Hackney, Hackney Grover, PLC, East Lansing, Mich.
NCMIC spent a lot of time and expense on this case because it recognized the seriousness of the allegations from the beginning. This allowed the defense team to get out in front of the case and fully defend it.
As a result of this case, the doctor learned firsthand why records are vitally important. Because the records are made during care and treatment, there’s an aura of authenticity about them that cannot be recreated with later testimony.
This case also points out why it’s important to use care during the transition from paper to electronic records. In this case, Dr. Jorgenson realized he had to review all his patient records retrospectively to make sure there weren’t any holes.
Dr. Jorgenson learned the importance of having a signed, written informed consent form. Before the lawsuit, he’d discuss the risks and benefits of care with the patient, but he wouldn’t necessarily have a signed informed consent document on file. The doctor now has each patient initial every paragraph on the form and sign it at the end.
Dr. Jorgenson was ready to testify that one of the reasons he did not obtain X-rays on Swanson was to save her money. If he ordered the X-rays, she would have to pay for them. However, if her primary care physician ordered the X-rays, insurance would pay for them. Because Dr. Jorgenson never told her that, Swanson believed the DC was negligent for not performing needed testing to ensure she was an appropriate patient.
The doctor would have been better served if he would have documented: "Offered to obtain X-rays, but patient declined when told she would be responsible for payment.” Dr. Jorgenson would also have benefited if he had explained why X-rays were not needed and documented it in the records.
Finally, it is important to remember that even when things are going well, problems can crop up at any time. Although this can create a difficult situation for the practitioner, effective preparation, communication and recordkeeping can minimize potential issues.
About the Author
"What Can We Learn" author Randy Hackney is the managing partner of the East Lansing office of Hackney Grover and practices primarily in medical malpractice defense litigation. His practice also includes civil litigation and insurance company formation, insurance policy dispute and interpretation.
Hackney has practiced law for more than 38 years and is widely recognized as a leader in medical malpractice defense litigation, insurance litigation, and insurance company formation. During his career, he has litigated cases in the majority of the jurisdictions in the state of Michigan along with several federal courts.
Hackney was awarded the Robert E. Dice Award and Recognition for Excellence as the most outstanding Michigan attorney in the defense of physicians in medical liability litigation. He has also been selected as a member of the American Board of Trial Advocates. The Michigan chapter of this honorary society is limited in size to one half of one percent of all lawyers in the state of Michigan. Hackney has also received the designation of Super Lawyers, has been selected by his peers to be included in Best Lawyers in America and recently received a Lifetime Achievement Membership to America’s Top 100 Attorneys.