Poor Recordkeeping Results in Indefensible Lawsuit and Board Action

Michelle Towers, age 47, was suffering from low back pain and numbness that radiated down her left leg when she presented to Jack Drayton, DC, at Elk Mountain Chiropractic Clinic on April 17, 2008. She had a history of low back pain dating back to a fall 35 years earlier. However, her symptoms were aggravated when she lifted a heavy box of paper.

Posted in Risk Management on Friday, March 1, 2019

During this initial appointment, Dr. Drayton took a complete history and performed an exam, which revealed positive Rhomberg’s, Fabere’s & Lasegue’s tests. He also took lumbar X-rays, which confirmed moderate disc degeneration.

Ms. Towers’ treatment plan consisted of a lumbar side-posture adjustment, electrical muscle stimulation, ice/heat and massage three times a week for eight weeks.

At the conclusion of the eight-week session, Ms. Towers’ pain level had improved from an “8” to a “1.” Ms. Towers then became an as-needed patient.

Chiropractic care resolved Ms. Towers’ low back pain for a month or so at a time, and she continued to treat with Dr. Drayton for another three years sporadically. Dr. Drayton’s last adjustment to Ms. Towers was May 25, 2011, until she returned to the clinic approximately two years later, on April 2, 2013. At this point, she had moderate low back pain and minor numbness radiating down her left leg.

Dr. Drayton Retires; Dr. Jeremy Takes Over

In the time between Ms. Towers’ last visit and her 2013 return, Dr. Drayton had retired after 45 years of practicing chiropractic, selling the clinic in December 2012 to a new doctor, Luke Jeremy, DC.

Dr. Drayton stayed on for another three months to show Dr. Jeremy how he had operated the clinic and managed the patient load. Dr. Jeremy wanted to keep the practice functioning in the same manner, so he sincerely appreciated Dr. Drayton’s guidance. Dr. Drayton had used an EHR system to create clinical records, and it was included with the transfer of the practice.

While Ms. Towers was surprised to learn that Dr. Drayton had retired upon returning to the office, she agreed to treat with Dr. Jeremy. She informed him about the back pain she had since the prior summer, and she shared an MRI taken by another provider.

Unfortunately, Dr. Jeremy failed to review the study, which showed annular tears, bulges and degenerative disc disease in her lumbar spine. Instead, he followed Dr. Drayton’s EHR treatment entries, and performed the same lumbar side-posture adjustment Dr. Drayton had used in the past.

Immediately, Ms. Towers experienced excruciating pain in response to the adjustment. Dr. Jeremy quickly applied ice to Ms. Towers’ low back to try to relieve the pain. However, when she was unable to rise from the table after 45 minutes, he called 911.

Patient Undergoes Surgery

The EMT transported Ms. Towers to a local hospital, where she received an immediate MRI. Results of the MRI confirmed a large disc extrusion at L4–5, degeneration at multiple levels, and small dorsal annular tears at L2–3 and L3–4. Ms. Towers was admitted and hospitalized for two days. She was then referred to a prominent neurosurgeon.

On April 5, 2013, Ms. Towers underwent a left L4–5 microlumbar discectomy.
The neurosurgeon performed the procedure without complications.

Ms. Towers was released from the hospital 36 hours later and referred to start physical therapy in two months. Physical therapy extended eight weeks and was considered successful.

In the fall of 2014, Michelle Towers (now the plaintiff) filed suit against Dr. Jeremy and Elk Mountain Chiropractic Clinic. The lawsuit alleged:

1. The defendants failed to exercise the degree of care and skill expected of a reasonable, prudent healthcare provider in similar circumstances.
2. Due to the defendants’ negligence, Michelle Towers suffered a back injury and will incur medical expenses, lost earnings, impaired earnings capacity, pain and suffering, disfigurement, and loss of enjoyment of life.

The NCMIC-retained attorney met with Dr. Jeremy shortly thereafter to discuss the allegations and to review the patient’s electronic records. It was clear from the beginning that Dr. Jeremy’s inadequate recordkeeping was going to be an issue. Not only did Dr. Jeremy fail to review Ms. Towers’ MRIs, but he failed to obtain a new written history, perform an examination or render a diagnosis, despite the fact she had not been to the clinic for two years. Further, the validity of the record came into question because it appeared to be a clone of the last record created by Dr. Drayton.

Dr. Jeremy admitted he relied on Dr. Drayton’s sparse EHR notes to determine the adjustment to perform on Ms. Towers. Dr. Jeremy simply copied the older records and neglected to update the findings or procedures.

The case spiraled downward following Dr. Jeremy’s January 5, 2015, deposition. The NCMIC-retained defense counsel attempted to locate a chiropractic expert to defend Dr. Jeremy’s actions but couldn’t find a single chiropractor who would do so.

To maintain his credibility, Dr. Jeremy would need to concede he breached the standard of care by failing to take an adequate written history and examination. He also had to admit he failed to render a diagnosis on the initial visit. However, he denied his treatment caused additional injury to the plaintiff.

In light of Dr. Jeremy’s testimony, the case would be difficult to successfully defend, especially since the first box on jury instructions read: “Did the doctor violate the standard of care?”

Plaintiff Makes Settlement Demand

The plaintiff made a $300,000 demand shortly after Dr. Jeremy’s deposition. It was clear that Ms. Towers came to Elk Mountain Chiropractic Clinic with problems with her low back and most likely had a herniated disc at that time. The only hope for the defense would be to show that Dr. Jeremy’s treatment didn’t cause Ms. Towers’ issues.

After a grueling mediation, both parties came to an agreement and the case was settled for $100,000. Dr. Jeremy was relieved that the case had been resolved, but regretful that his records crippled an otherwise defensible case.

In keeping with the National Practitioner Data Bank (NPDB) requirements (see sidebar), NCMIC sent a malpractice payment report within the 30-day grace period confirming settlement. In turn, the NPDB submitted this payment report to Dr. Jeremy’s state board of chiropractic.Several months following the resolution of Dr. Jeremy’s lawsuit, he received a letter from his state board of chiropractic stating that they were in receipt of the NPDB payment report and wanted to investigate the claim. Dr. Jeremy was ordered to send in all documentation surrounding Ms. Towers’ claim, as well as his own personal response to the allegations within 10 days. The board also requested he send them 10 active patient files, which they named, for further review. A hearing was scheduled to take place in three weeks.

Appropriately, Dr. Jeremy immediately contacted NCMIC regarding the board investigation, so he could receive a defense for the board matter.

Response to the Board

NCMIC assigned the same attorney who represented Dr. Jeremy in the malpractice case to defend him in the board matter. The attorney noted that it was permissible under HIPAA in this state for Dr. Jeremy to share the 10 active patient files, and Dr. Jeremy did so.

Prior to the hearing, the attorney and Dr. Jeremy provided a response to the board that conceded the doctor’s poor recordkeeping but rebutted any allegations of harm. During the hearing that took place on September 15,2015, Dr. Jeremy was allowed to respond to the board’s harsh criticism of his recordkeeping. According to the panel, all 10 files they reviewed were well below the standard of care. With the help of his attorney, Dr. Jeremy explained his reasoning behind each note.

Ultimately, Dr. Jeremy had to admit his documentation fell short of what he was taught during chiropractic college, and he promised to change his ways. Dr. Jeremy was advised that his case would be evaluated by the panel members who would respond in the near future.

It was nine months before Dr. Jeremy heard anything back from his state board. The board investigator handling this case contacted Dr. Jeremy’s NCMIC-retained attorney to propose a two-year probation period, routine audits by the state for five years, 35 hours of recordkeeping courses to be completed in six months, a $2,500 fine and more than $1,500 to pay for board administrative fees.

Dr. Jeremy was astounded by the board’s proposal and could not believe the severity of the reprimand. After back and forth negotiations for another few months, Dr. Jeremy agreed to complete a 35-hour recordkeeping course within six months, accept routine audits for the next two years and pay the board administrative fees.

What Can We Learn?

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

Russian Roulette with Recordkeeping

In today’s hectic society, it can be tempting to take recordkeeping shortcuts. However, records are the foundation of patient-centered care; they enable continuity of care in the event of a change in doctors; and they are the basis for a defense in any litigation.

In Dr. Jeremy’s case, experts could have provided opinions on the causation of the disc, but his poor recordkeeping made a successful defense unlikely. One of the pitfalls of using EHR systems improperly is that it is easy to copy and paste from prior visits. If those prior visits were not well documented, the weak records will be perpetuated if the provider does not improve the documentation. Plaintiff attorneys scrutinize not only the records for vital information, but also for repetition and redundancy. When these are found, the doctor’s clinical competence comes under scrutiny, which is very difficult for a jury to disregard.

Standard of Care

There is not much give-and-take in the standard of care when it comes to recordkeeping. The quality of the record, the content of the record and the contemporaneous documentation of the records are all essential. Therefore, it is extremely difficult to defend a case in which the doctor admits to providing treatment that doesn’t meet the standard of care. Through skillful negotiation by the defense team, both the malpractice and board cases were resolved with the best possible outcome for Dr. Jeremy, given the situation.

Corporation Coverage

Both individual malpractice insurance and practice entity coverage are essential in most cases. In this case, Dr. Jeremy’s practice was also brought in as a defendant in the lawsuit. Additional insurance on behalf of the corporation may cover any alleged negligent actions by employees. Moreover, it may also provide greater limits to the chiropractor in the event of a verdict against him or her.

Counseling Sometimes Needed

It’s common for a doctor not to hear anything from a licensing board for eight to ten months. This can take a toll on a doctor, not knowing if he or she will have a license in the near future. That’s one reason why the NCMIC Claims Assistance Program can provide up to six, one-hour counseling sessions with a licensed and/or credentialed professional for doctors who are experiencing the stress of a claim.

"What Can We Learn" author Jennifer Boyd Herlihy is a 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.