Barb Fowler, then 29 years old, initially visited Robert Lowsen, D.C., on June 30, 2008. She was seeking care for what she described as a stress-posture correction.
Posted in Case Studies on Monday, June 01, 2015
Beyond a history of four pregnancies, three children, one miscarriage and current birth control use, Barb provided no clinical history. Occupationally, she listed herself as a daycare provider and housewife. In speaking with Barb, Dr. Lowsen felt that the source of her stress might be her family and living situation that included tight quarters and disagreements with her husband. He assessed her posture and found that kyphosis might be slightly exaggerated and that her muscles were short and tight.
Dr. Lowsen explained to Barb that his treatment plan was to find and correct biomechanical lesions—trigger points—and apply pressure to them to stimulate natural healing and alleviate pain. Dr. Lowsen defined trigger point as a biomechanical lesion involving an “ischemic depression.” Treatment rendered to Barb on the initial visit consisted of neuromuscular re-education, interferential and heat to the cervical/thoracic spine.
Barb treated with Dr. Lowsen on a bi-weekly basis for her stress-posture correction. On July 23, Barb informed Dr. Lowsen that she was feeling hormonal and experiencing a lack of sex drive and jaw pain. Dr. Lowsen sold Barb soy pills, telling her that soy is a precursor to estrogen. At this visit, Dr. Lowsen also adjusted Barb’s temporomandibular joint. No other treatment was offered on this occasion.
Barb continued to treat with Dr. Lowsen on a bi-weekly basis. At a visit on October 13, 2008, Barb presented with a raspy voice and a low-grade fever. As a result, Dr. Lowsen obtained a throat culture from Barb to rule out strep, and he sent the specimen to a lab. Dr. Lowsen intended to review the results with her once they were returned. This was a routine practice in his office.
Doctor Begins Treatment of Coccyx
On November 19, 2008, Barb presented with complaints of lower pelvic pain. Barb advised this pain began following aggressive sexual activity with her husband. She mentioned vaginal bleeding and an irregular gait. Her chief complaint was pain that occurred mostly when sitting.
Dr. Lowsen’s examination included a full spine examination, motion/palpation and evaluation of the coccyx, which revealed pain in the coccyx and lower back. He suspected a separation of the coccyx, but he didn’t send Barb for radiology studies. Instead, he ruled out possible fracture of the coccyx after he placed a tuning fork over the area and received no pain response.
Dr. Lowsen explained to Barb that she had an anterior coccyx issue, but that he could fix it. He told Barb that, although he doesn’t like the procedure, he would perform an intrarectal exam using a rocking motion to the coccyx. This procedure would help reduce her pain by allowing the coccyx to fall back into place.
Because it was in a sensitive area, Dr. Lowsen called a member of his office staff to be in the room while he performed the treatment. Following the performance of this technique, which was the last adjustment of the visit, Dr. Lowsen advised Barb to apply heat to the area of the coccyx and see her gynecologist for the vaginal spotting. On November 26, two visits subsequent to the November 19 visit, Barb again complained of increased pain in the coccyx area for which Dr. Lowsen administered a second intrarectal adjustment.
Pregnancy Complicates Case
Barb learned on December 30, 2008, that she was pregnant with her fourth child, with an August 18, 2009, due date. During the months of January and February 2009, Barb continued to complain of stress, coccyx-area pain, pregnancy-related sickness, headaches and various pains in her back. Dr. Lowsen continued to treat her with the same regimen of trigger point adjustments and interferential therapy, as well as with three more intrarectal adjustments of the coccyx.
Barb discontinued treating with Dr. Lowsen the first three weeks of March 2009. However, she resumed treatment with him for complaints of pelvic and pubic symphysis pain on March 25, 2009.
During the last months of her pregnancy, Dr. Lowsen adjusted Barb’s pelvis so that the sacroiliac joints would more easily flare during delivery. On July 28, 2009, Barb complained that the pain over her pubic bones was severe and had worsened.
With Barb lying in the supine position on the chiropractic table, Dr. Lowsen examined the pubic area by placing the palm of his hand over Barb’s pubic bones to determine if they were abnormally separated. He found that they were appropriately separated but not properly aligned.
Therefore, Dr. Lowsen performed what he referred to as a “standard pubic adjustment.” For this adjustment, Barb remained in the supine position with her feet on the table and her legs bent. Dr. Lowsen placed his hands on the medial aspect of her knees and then had her adduct her knees together with all of her strength. Then, he forcibly abducted her knees, allowing her muscles to realign her pubic bones. Barb immediately complained to Dr. Lowsen that this maneuver caused her excruciating pain. The pain intensified when she stepped to the floor from the table.
Emergency Care Required
On July 29, 2009, Barb’s husband transported Barb to an emergency obstetrical visit with her OB/GYN. Barb gave her doctor the history of the treatment she received the previous day from Dr. Lowsen. Her doctor diagnosed Barb with a pubic bone symphysiolysis. Her only treatment option until after delivery was to take Tylenol with codeine.
Barb telephoned Dr. Lowsen on July 30, 2009, and told him about her emergency obstetrical visit and informed him that she had a pubic bone symphysis separation. Dr. Lowsen replied that this is exactly what he worked on. He didn’t know if there were any treatment options he could offer Barb, but he encouraged her to return to his office. On July 31, 2009, Dr. Lowsen saw Barb and performed manipulations to her neck, back, pelvis and tailbone. Barb cried throughout this appointment, which was her last visit with Dr. Lowsen.
Although Barb’s due date was estimated as August 18, 2009, Barb made an emergency visit to the hospital on August 2, 2009. She was experiencing severe pain, was unable to walk and needed to use a rolling walker. A pelvic exam was performed, and she was diagnosed with pubic bone symphysis separation, as known as Symphysis Pubis Dysfunction (SPD). She was told to have a C-section or risk major orthopedic surgery and several months of disability. The C-section was performed on August 2, 2009. Due to her inability to ambulate, her hospitalization period was extended to seven days.
Upon discharge, Barb went to a rehabilitation/convalescent home for three weeks for assistance with her activities of daily living. Subsequently, she went to post-partum visits with her OB/GYN. She also saw a physical therapist because she couldn’t perform many activities, including separating her knees. Barb discontinued the physical therapy sessions because her insurance denied coverage for them.
Barb began treating with a physiatrist/sports rehab/pain management specialist. The specialist provided trigger-point injections, manipulations, an anti-depressant for pain and depression, prolotherapy, endocet, buspirone, carisoprodol, naproxen, and pain patches. Her doctor also administered four rounds of platelet-rich plasma injections to her pelvis, sacrum and lumbar areas.
On February 23, 2010, Dr. Lowsen was served with a summons and complaint. Barb Fowler and her husband Jack (the plaintiffs) were suing Dr. Lowsen for chiropractic malpractice for care between June 30, 2008, and July 31, 2009. The suit alleged Dr. Lowsen failed to obtain Barb Fowler’s informed consent, as well as a loss of services, society and consortium by Jack Fowler.
More specifically, the plaintiffs alleged that Dr. Lowsen negligently treated then-pregnant Barb Fowler by:
- Applying fundal pressure on her uterus.
- Forcibly separating her knees, causing iatrogenic injuries.
- Treating obstetrical conditions beyond the scope of his licensing and training.
- Performing maneuvers/manipulations outside the scope of his license.
The plaintiffs also alleged that Dr. Lowsen covered up the injuries, failed to advise the plaintiff of the purpose, risks, hazards, and alternatives of therapy, and failed to maintain records.
When Dr. Lowsen’s NCMIC-retained defense attorney first reviewed the D.C.’s records and interviewed him, the attorney found that most of the plaintiff’s approximately 51 visits were charted. However, some were noted only in the billing log.
Rarely did the notes provide any description of the anatomical area where a problem was found, nor did they address the area to which treatment was directed. Many of the entries said only: “Multiple biomechanical lesions, A, N, I, H.” (A=Adjustment, N=Neuromuscular reduction, I=Interferential, H=Hot/cold pack). What’s more, Dr. Lowsen generally couldn’t recall where the biomechanical lesion was found or where the adjustment or modality was directed.
The plaintiff’s attorney retained OB/GYN Milton Green, M.D., as an expert witness. It was Dr. Green’s opinion that Dr. Lowsen committed malpractice when he:
- Applied excessive force to Barb Fowler’s pelvic area.
- Applied downward pressure to the area of the abdomen.
- Performed a resistance maneuver for the abdominal area.
- Placed the plaintiff in a supine position with knees raised and applied downward pressure and forcibly separated her knees.
This expert witness for the plaintiff further opined that these departures were a substantial factor in causing the SPD, necessitating an emergency Caesarean section and a prolonged hospital stay. Finally, Dr. Green was of the opinion that Barb Fowler’s ligament between the pubis rami was dislodged by chiropractic manipulation and that this dislodged ligament wouldn’t heal back. He classified the plaintiff’s injuries as permanent—they would continue to cause pain, discomfort and impair her ability to ambulate.
Defense Team’s Experts Evaluate Case
Dr. Lowsen’s defense team retained four different Doctors of Chiropractic for their respective expert opinions relating to his care of the patient. Unfortunately for Dr. Lowsen, not one of these D.C.s could defend Dr. Lowsen on standard of care issues.
These D.C. expert consultants were also collectively of the opinion that Dr. Lowsen’s progress notes were not adequate and were of such a poor quality they did not conform to chiropractic standards. Dr. Lowsen was alleged to have failed to:
- Set forth the location of the patient’s “multiple biomechanical lesions.”
- Identify what he adjusted.
- Note where he applied interferential, heat and ultrasonic treatments.
- Set forth the types of neuromuscular re-education exercises that he had the patient perform.
Furthermore, Dr. Lowsen’s treatment extended beyond the realm of chiropractic treatment on at least one occasion when he performed an upper respiratory culture. Moreover, he performed intrarectal coccyx adjustments without having definitive proof that there was no coccyx fracture, making this treatment contraindicated. Finally, once Dr. Lowsen was informed the patient was pregnant, he administered interferential treatments, which were also contraindicated.
Two of the expert consultants who reviewed this matter gave the opinion that interferential treatments to the upper extremities and neck would arguably not be contraindicated in pregnant women, but the other two chiropractic expert consultants concluded that better practice warrants no interferential treatment on pregnant patients to prevent any adverse consequences to the fetus.
Despite these issues, the defense team’s expert consultants agreed that there was no indication Dr. Lowsen did anything to cause the plaintiff’s alleged SPD or Diastasis Pubic Symphysis (DPS). Notably, after delivery by C-section, all follow-up films were negative for a ruptured pubic symphysis. However, this opinion was complicated by the fact that Barb Fowler’s OB/GYN noted on July 29, 2009, that she had pubic bone symphysiolysis. Therefore, it would not be a stretch to conclude that Dr. Lowsen’s treatment on July 28, 2009, led to some pubic symphysis problems.
The NCMIC defense team also retained obstetrician Dr. Michael Hinter as an expert consultant. Dr. Hinter stated that an X-ray is the gold standard for diagnosing SPD after delivery, and he interpreted an X-ray taken on August 6, 2009, four days after Barb Fowler’s delivery, as not showing a rupture. He claimed that there is no way a rupture on July 28 or July 31, 2009, would not have appeared on a film taken 6–8 days later. He also opined that even if, miraculously, the injury did heal or was not visible on X-ray, he couldn’t rule out pregnancy as a cause. This was particularly the case with the plaintiff who had four prior pregnancies.
Dr. Hinter went on to state that relaxin, a hormone that is released during pregnancy and increases during the third trimester, causes the pubis to widen in preparation for delivery. Therefore, the area becomes susceptible to such an injury. Having any prior pregnancy, let alone three prior vaginal deliveries, is a risk factor for SPD, as is a prior back injury.
In terms of disability, Barb Fowler claimed she could no longer run or walk fast. She couldn’t do household chores, care for her kids without full-time help or wear shoes with heels. She claimed she gained about 20 pounds over her pre-pregnancy weight. She needed to use a wheelchair at airports, malls, parks and for other long distances. She also claimed that she could not cook and that meals were anonymously left on her doorstep by members of the community.
Credibility an Issue
Putting aside the issue of liability, there was another issue to contend with for the defense. Dr. Lowsen’s NCMIC-retained defense attorney was of the belief that both Barb Fowler and Dr. Lowsen had credibility issues. Barb Fowler came across as an actress and an exaggerator. Dr. Lowsen was described as crude without self-awareness, sloppy in appearance and often unintelligible in speech.
In short, Dr. Lowsen’s defense counsel believed that he would be difficult to defend before a jury because of the unprofessional demeanor he presented. While the intrarectal adjustments did not really figure in the liability/causation arena, they created an image of sleaziness because of the manner in which Dr. Lowsen described them during testimony.
Throughout the 3 ½ years of this case, Barb Fowler refused to provide a settlement demand less than the full amount of Dr. Lowsen’s malpractice insurance policy limit. On the eve of trial, she requested mediation, and the court ordered the case to be mediated.
While Dr. Lowsen held firm in his belief that he didn’t injure the plaintiff, he decided to settle the case after discussing its strengths and weaknesses with his defense team. After seven hours of mediation, the claim settled for a small fraction of the amount demanded by the plaintiff. NCMIC’s costs to defend this case totaled $135,355.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
Defense experts in this case were unable to state that Dr. Lowsen’s procedures met the standard of care. This is because the doctor’s care could not be supported by standardized textbooks, common usage or his educational training. While Dr. Lowsen is to be commended for having the common sense and professional awareness to have a staff member in the room during the internal coccygeal adjustment, he should have consulted evidence-based documents before administering this very specialized adjustment. What’s more, the patient indicated the procedure was also causing her increased distress. Lack of improvement is a clear “red flag” and reason to re-evaluate treatment.
Chiropractic care for pregnancy has been used with high levels of benefit and patient satisfaction. However, as with any care, and especially during pregnancy, treatment must be provided within the doctor’s area of expertise. Also, any time a pregnant woman is under care, the doctor must provide treatment in full accord with the patient’s concurrence.
Records, records, records
Dr. Lowsen’s records were indefensible, invalid, incoherent and inadequate to support the care and therapeutic conclusions. Also, care must be used with terminology that is written in the record—even using terms, such as ischemic depression, may not be supported by texts or training.
Interaction with other providers
In this case, Barb Fowler was seeing other providers, including an OB/GYN and perhaps a primary care provider. Dr. Lowsen would have been better served to contact the patient’s OB/GYN (with permission) when there were signs of vaginal bleeding. Instead, he left the consultation up to Barb Fowler. Also, a conversation with the patient’s OB/GYN and/or primary care provider may have led the D.C. to take a different care approach from one that is generally not supported by the chiropractic or obstetric community. Communicating with other providers builds rapport and establishes credibility.
Defense attorneys often assess their clients to determine how they will present in court. In this case, the defense attorneys correctly assessed the potential harm of putting Dr. Lowsen in front of a jury. When the care is defensible and the doctor’s image is stellar, there may be some advantage to a jury trial. When care is unsupported and the doctor’s appearance, temperament and education are in question, there is a greater chance of alienating a jury.
Jennifer Boyd Herlihy is healthcare defense lawyer with the firm of Adler / Cohen / Harvey/ Wakeman / Guekguezian,LLP, located in Boston, Mass., and Providence, R.I. 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.