When Bad Things Happen, a Supportive Team Makes a Difference
Judy Wonderlin, a 67-year-old retiree, presented to Acme Chiropractic seeking treatment for neck pain and tightness, which she had been experiencing for two weeks. After performing an initial examination, Craig Zinzer, DC, proceeded with an exam and testing of her cervical spine.
Posted in Risk Management on Thursday, October 31, 2019
By Kevin Hulslander, Smith Sovik Kendrick & Sugnet, PC
The exam revealed tenderness to digital palpation and muscle tension on both sides of the spine. There was no swelling present, but physical clinical indicators suggesting subluxations were noted at C2 and C3, with possible misalignment in those areas.
Dr. Zinzer then performed numerous orthopedic and neurological tests, all of which were negative. Dr. Zinzer provided Mrs. Wonderlin with moist heat treatment and cervical stretching. After examination, testing and palpation, Dr. Zinzer also performed a manipulation of Mrs. Wonderlin’s C2 vertebrae while she remained in a seated position.
Immediately following manipulation, Mrs. Wonderlin stated she felt better but that didn’t last long as she began to complain of mild numbness in her tongue and left side. She became very weak and began vomiting. When her symptoms failed to subside, Dr. Zinzer called 911, and she was transported by ambulance to the hospital.
At the hospital, Mrs. Wonderlin was diagnosed with a stroke and right vertebral artery dissection. Diagnostic studies revealed a left cerebellar infarction and some residual thrombosis in the right vertebral artery. She was noted to be deteriorating neurologically and additional scans revealed a blood clot in her right vertebral artery. An emergency thrombectomy was successfully performed and a stent was placed in her right vertebral artery.
Mrs. Wonderlin remained a hospital inpatient for approximately one month. During her stay, she suffered numerous setbacks, some of which required extensive and invasive treatment. At one point, her family and medical team considered comfort care, which her husband declined.
The patient was eventually transferred to a rehabilitation center where she remained on oxygen and feeding tubes. She continued to improve with time, but her life drastically changed. She now cannot eat, talk or walk. She communicates by grunting and groaning but remains lucid and keenly aware of her circumstance and surroundings.
One year following her stroke, Mrs. Wonderlin remains in rehab with around-the-clock care. She was expected to return home eventually but has never made it there. Experts estimate her future care and treatment would cost approximately $5.3 million over the course of her life expectancy.
A lawsuit was filed against Dr. Zinzer and Acme Chiropractic alleging a negligent manipulation of the patient’s neck caused her dissection and stroke. The plaintiff counsel claimed that Dr. Zinzer violated the appropriate standard of care because he failed to:
- Complete a more comprehensive review of the patient’s past medical history, including obtaining records and speaking with Mrs. Wonderlin’s treating physician.
- Review prior diagnostic tests and research her current medications.
- Obtain X-rays prior to adjustment.
The stroke occurred on the chiropractic table and Mrs. Wonderlin was severely affected and had serious residual dysfunction, pain, suffering and loss of enjoyment of life. She claimed $10 million in damages.
Defense Experts Weigh In
The defense team immediately sought assistance from experts to confirm Dr. Zinzer had not departed from the standard of care and did not cause the patient harm.
The experts opined that weeks prior to the treatment, the wall of Mrs. Wonderlin’s artery gave way causing an outpouching of the anterior wall. The dissection caused a clot to form over time. The stroke was then caused by movement, possibly due to the manipulation that led to the breaking away of the clot.
The defense experts believed Dr. Zinzer did not cause the dissection and did not cause the clotting. Instead, it was during his non-negligent adjustment or immediately thereafter that the clot was dislodged, resulting in her stroke through no fault of his own.
The experts for the defense included a highly qualified vascular neurosurgeon with forensic experience in stroke who would testify that Mrs. Wonderlin’s vertebral artery dissected several weeks prior when Mrs. Wonderlin began feeling pain and discomfort in her neck. After that, it was only a matter of time before the clot inevitably dislodged, causing the stroke. There was nothing in her presentation at the time of treatment to alert Dr. Zinzer that diagnostic testing was necessary.
Furthermore, had Dr. Zinzer dissected the artery that day, there would have been an almost immediate onset of pain. Instead, the artery most likely dissected due to a degenerative condition (fibromuscular dysplasia) brought on by the patient’s genetic makeup.
The expert was able to reference this generally on the diagnostic studies and posited that her subsequent treating doctors at the hospital failed to further investigate this as a cause because it was convenient and easy to blame the chiropractor based on the timing of the adjustment and the stroke.
An expert chiropractor was brought on by the defense team as a standard of care expert. He believed strongly that Dr. Zinzer provided reasonable, acceptable chiropractic care and treatment. The expert chiropractor was able to make an important distinction: The stroke may have occurred during adjustment, but the stroke was not caused by the adjustment.
The defense team also retained two world-renowned experts to address recent scientific testing to rebut issues of causation, i.e., statistically, a stroke is no more likely to occur in a chiropractor’s office than a family doctor’s office and chiropractic adjustments, if performed reasonably, do not have sufficient force to dissect a vertebral artery.
Dr. Zinzer’s defense also focused on the comprehensive informed consent document that Mrs. Wonderlin signed prior to her treatment. The document specifically outlined the risks of manipulation including stroke. Mrs. Wonderlin even acknowledged that she was aware of the risk of stroke associated with the chiropractic manipulation.
Dr. Zinzer and his defense team believed the case was defensible based on the investigation, the science and the strength of their experts. Moreover, Mrs. Wonderlin’s experts were not as prepared on the science as the defense experts were.
However, because of the visible extent of Mrs. Wonderlin's injuries, there was concern the jury would be sympathetic to her case. Additionally, despite expert testimony that Dr. Zinzer met the chiropractic standard of care, the jury could want to punish Dr. Zinzer for not doing more to review Mrs. Wonderlin’s past records and medication usage, as well as for not pursuing diagnostic testing.
Therefore, Dr. Zinzer consented to settlement for fear he could lose his practice if there was large verdict against him. As a result, a reasonable settlement was reached after extensive negotiations. Dr. Zinzer was pleased with the settlement, which he believed was a positive outcome, given the small but potential risk of a substantial plaintiff verdict. Ultimately, the case resolved for such a reasonable sum because the defense team—including the experts—was better prepared and more qualified than the plaintiff attorney and his experts.
*All names used in Examiner case studies are fictitious to protect patient and doctor privacy.
What Can We Learn?
Informed Consent is Critical
Informed consent has become almost commonplace in malpractice litigation; failure to provide informed consent is often a stand-alone allegation. Doctors of Chiropractic should be aware of the consequences of failing to obtain informed consent or neglecting to document the discussion in the clinical notes. It is beneficial for doctors to be aware of the literature and conversant about the latest scientific evidence on vertebrobasilar stroke.
Document, Document, Document
Dr. Zinzer charted in detail and thoroughly documented his examination, treatment and rationale, making the case a good one to defend.
In today’s world of electronic records, it is less difficult to obtain records—particularly for new patients—than it used to be. Prior records are important because they may reveal some areas that the patient did not disclose during the initial consultation.
X-Rays Prior to Adjusting
Plaintiff attorneys will attempt to include everything possible in a malpractice allegation. However, there is no standard of care violation solely based on whether a doctor took an X-ray or not. In fact, taking an X-ray without clinical indicators is as contentious as NOT taking an X-ray when it’s warranted. The issue is whether a doctor’s clinical judgment was supported by the appropriate clinical indicators. Deciding to take an X-ray or perform other testing should also be predicated on the patient’s presentation and circumstances.