Maggie Elliott, 52, worked as a sales leader at a major wireless service provider when she presented to Stoneman Chiropractic, PC, on April 16, 2016, with neck pain she had for two weeks. Maggie was overweight and had a history of diabetes, high blood pressure and low thyroid levels.
Posted in Risk Management on Monday, April 11, 2022
Maggie and two friends decided to go to Stoneman Chiropractic, which was owned by Jeffrey Stoneman, DC, and Terry Maahs, DC, when they saw the practice’s Groupon for a hydro massage, X-ray and exam. Maggie believed the hydro massage would help ease her neck pain, and her friends thought it would be a spa-like massage treatment. The Groupon stipulated that to receive the hydro massage, the bearer must submit to the X-ray and exam, which were included in the Groupon price.
Maggie arrived that day with the Groupon in hand, mostly intent on receiving the 20-minute hydro massage but also because she was “looking for a good chiropractor.” Dr. Stoneman obtained a history, took an X-ray and performed an exam.
Maggie then returned the next day, April 17, 2016, to receive the hydro massage and learn what the X-ray and exam revealed. Based on the findings, Dr. Stoneman identified Maggie’s “spine was misaligned,” and he recommended 18 months of extensive chiropractic care—the maximum allowed by insurance. Perhaps coincidentally, this was the same treatment plan he recommended for Maggie’s friends.
Maggie signed a consent-to-treat form that simply stated that “procedures performed seldom caused any problems,” and this document was placed in the records. Dr. Stoneman performed a diversified adjustment at C3, C5 and C6 and applied electronic stimulation therapy. Before leaving that day, Maggie said her pain was reduced and her symptoms improved.
On April 22, 2016, Maggie had a previously scheduled hysterectomy performed. She never made mention of neck pain from the chiropractic adjustment, either pre- or post-op. Maggie later claimed that this was because her symptoms were masked by pain medicine.
On May 6, Maggie returned to Stoneman Chiropractic with complaints of severe neck pain that radiated down her left arm. At this visit, Maggie saw Dr. Maahs who used a diversified adjustment at C3, C5 and C6. This adjustment was like the one Dr. Stoneman performed without incident. However, she later claimed she felt a pinch between her shoulder blades during the cervical adjustment at C5-6.
Dr. Maahs asked Maggie to return that afternoon to assess her progress and when she arrived, she was still in severe pain. Consequently, Dr. Maahs referred Maggie for an MRI, which showed a disc herniation at C5-6, with a large disc fragment pressing on the nerve root.
Two weeks after the MRI was taken, on May 20, 2016, Maggie underwent an operation for a cervical discectomy and fusion at C5–6. The treating neurosurgeon deemed the surgery a success and speculated that Maggie would require little or no care in the future.
On April 18, 2018, Maggie Elliott filed a lawsuit against the doctors of chiropractic, as well as Stoneman Chiropractic, PC. She alleged the doctors used excessive force in their adjustments, which caused a disc herniation that resulted in surgery and ongoing pain. Specifically, Maggie claimed that she:
- Was unable to travel, care for her home, do yard work or teach her grandson to swim.
- Could no longer color her own hair.
- Used to be a scuba diving instructor and avid horseback rider and she could no longer do either.
- Had diminished quality of life due to persistent pain, which limited her movement.
- Was unable to perform her job at a wireless company because her position pre-injury required her to hold a tablet while showing customers around the sales floor, which she contended she couldn’t do.
Maggie Elliott presented documented damages of $60,000, yet she was seeking $1.8 million from Drs. Stoneman and Maahs and Stoneman Chiropractic, PC.
Assessment of the Case
The NCMIC defense team evaluated the case for both the doctors and the clinic. Potential negatives for the defense were:
- The plaintiff’s attorney was a “big personality” who was well-known and popular in the community. Consequently, both doctors let down their guard and appeared less than confident during questioning by the plaintiff counsel at the deposition.
- The Groupon offer could be alleged to be a “bait-and-switch” ploy to get patients in the door with a heavily discounted price for a hydro massage and then convince them they needed a long-term chiropractic treatment plan. It could also be alleged to be a “fee-splitting” tactic because the Groupon fee was split with the doctor.
- The plaintiff attorney would try to cast doubt about whether the doctors’ treatments were clinically necessary. He could raise suspicions about the need for the full course of care by pointing out that Maggie Elliott and her friends received the same treatment plan.
- The “consent to treat” document was vague, giving the plaintiff attorney ammunition to contend that informed consent was not obtained.
Fortunately, for Drs. Stoneman and Maahs, there were also several positives to the case. These included:
- The radiological evidence revealed degenerative changes in Maggie Elliott’s neck and back, supporting the need for chiropractic care. Also, nothing in the patient’s history, written assessment or radiologic findings indicated that chiropractic care was contraindicated.
- Both DC’s records were complete, accurate and legible. They effectively told the story of Maggie’s course of treatment.
- The fact that Maggie Elliott told Dr. Stoneman at her initial visit that she was “looking for a good chiropractor” meant she was interested in receiving chiropractic care, as well as the hydro massage. This argument could be used to mitigate any “bait-and-switch” argument.
- There appeared to be at least some discussion with the patient about the benefits and risks of chiropractic care that could be used to counter allegations that the patient’s informed consent was not obtained.
Experts Weigh in
The case went to trial and began with the plaintiff attorney calling several witnesses to testify.
The first witness to provide testimony for the plaintiff was a chiropractic expert who opined that, according to the Rand study, the doctors breached the standard of care in terms of frequency of adjustments and failure to refer. However, the NCMIC-retained defense attorney was able to point out that the Rand study is used primarily for auto accident cases and was out of date, having been first published in 1991.* The plaintiff herself was called to testify about her contention that she could no longer hold a tablet while standing on the sales floor at her job.
During cross examination by the NCMIC-retained defense attorney, it was revealed that Maggie had been promoted and was traveling as part of her position—she no longer needed to be on the sales floor anyway. Therefore, she was not harmed professionally in any way.
Various witnesses, including Maggie Elliott herself, testified that she had not been able to swim, go horseback riding, travel, mow the lawn or scuba dive since her injury. Much of this testimony was extremely emotional, especially when Maggie’s daughter started sobbing on the witness stand. Through her tears, she reminisced about how her mother taught her how to swim, but now she won’t be able to do the same with her grandson.
Social Media Sets Up Major Break for the Defense
This testimony set up a major break for the defense, courtesy of Facebook. Maggie Elliott and these witnesses had posted numerous photos and frequent comments about Maggie’s trips, horseback riding, swimming and scuba diving. A photo showed Maggie in the pool holding her grandson after the alleged injury had taken place.
Another witness for the plaintiff was a co-worker who mowed for her on a “handshake basis.” The plaintiff contended that she couldn’t do this herself anymore and the man testified that he did mow the plaintiff’s lawn regularly. However, when the man was shown an invoice for his mowing services, he denied generating the invoice. This further undermined Maggie Elliott’s credibility because she apparently fabricated the invoice.
Also, the plaintiff’s neurosurgeon’s testimony ended up being favorable to the defense. He could not say whether chiropractic care caused the disc injury—it could have resulted from a multitude of events.
Defense Witnesses Testify
On the defense side, there was strong testimony from expert witnesses. The defense’s chiropractic expert was a highly experienced DC who was also a professor at a chiropractic college. This expert stated that it was his professional opinion that both doctors met the standard of care. He noted that the diagnostic tests and treatment seemed to be appropriate for the situation. Given Maggie Elliott’s curvature of her spine and severe degenerative changes in her neck, she probably had a pre-existing asymptomatic disc herniation when she sought chiropractic care.
This expert also testified that it was his opinion that a cervical herniation would not occur if proper technique was used. He further testified that even if a ruptured disc did occur as a result of improper technique, the patient would have been in such pain that she “probably would not be able to get off the table.” In all, he believed both doctors used the amount of force taught in the chiropractic colleges, didn’t deviate from the standard of care and did not herniate Maggie Elliott’s disc.
This expert also testified the doctors’ advertising claims would not be a concern, as long as the advertisement made no claims for a cure or “tricked the patient into doing something.”
NCMIC also brought in a neurosurgeon as an expert witness who testified:
- There were no bone fragments in the cervical region.
- The patient had a focal injury that was treated and resolved in 2015.
- Some of the alleged medical issues and expenses were not related to the disc herniation.
Because the doctors lacked certainty during certain lines of questioning at the deposition, the defense initially was concerned about their testifying at trial. Fortunately, Drs. Stoneman and Maahs were dedicated to defending their case. After trial preparation, they were both excellent witnesses who were firm in their testimony that their treatments did not rupture the plaintiff’s cervical disc. Further, Dr. Maahs reaffirmed that Maggie Elliott didn’t mention anything about a pinching sensation in her mid-back—her comments were consistent with what anyone would have said after an adjustment.
The case was tried the week before Christmas, which is considered by many attorneys to be the worst time to try a case since jury members would be impatient to get home for the holidays. Consequently, they might not give their full attention to the facts of the case, especially to the defense testimony at the end of the trial. Therefore, the defense team had to be especially perceptive for signs of jury fatigue and to keep the jury focused as the trial neared its conclusion.
The jury came back with a decision on Friday, Dec. 20, 2019. In spite of the trial taking place the week before Christmas and long days spanning from 7 a.m. to 10 p.m., the defense prevailed—$0 was awarded to the plaintiff. NCMIC spent more than $250,000 in defense costs.
What Can We Learn?
Special “deals” with marketing. Even when legal, using these deals may damage a doctor’s credibility and perception as a professional. The potential allegations of “bait and switch” and “fee splitting” can also be huge factors in board actions and malpractice allegations. Check with your state board for guidance/guidelines.
Informed consent. This is a process that requires time, patience, and understanding by both the doctor and the patient. The benefits and risks of care must be clearly comprehended by the patient—simply having the patient sign a form does not constitute providing informed consent.
Documentation reigns supreme. This means taking thorough notes about asymptomatic disc herniation when she sought chiropractic care. the exam, patient history, report of findings, informed consent process, point of care and patient response to treatment. In this case, the notes were very helpful to the defense.
Facebook can be a double-edged sword. Although Facebook was used to damage the plaintiff’s case, it could have just have easily damaged the defense. With devices that can photograph/record instantaneously, violations of privacy and personal information are rampant. Ask yourself: “Would I be okay if this appeared on the front page of a newspaper?”
X-rays and treatment timeframes should not be mandated. No standard of care supports a mandatory X-ray requirement as a condition of being examined and treated. Also, cookie-cutter treatment timeframes are not based upon sound evidence. Make sure you are performing and documenting your re-examinations. These activities go to a doctor’s credibility and can impact the outcome of a trial.
Credibility issues affect the plaintiff, too. The jury determines and weighs the credibility of all witnesses. In this case, Maggie Elliott damaged her own credibility when her tearful tale of incapacity was in stark contrast to her Facebook images and posts. In addition, the plaintiff became even less believable when it became clear that she fabricated a lawn mowing invoice.
* The official name of the Rand study is “The Appropriateness of Spinal Manipulation for Low-Back Pain.”