Up against the ropes is a bad place for a boxer. It is also a dangerous place for a chiropractor in the defense of a lawsuit.
Posted in Case Studies on Thursday, September 01, 2016
Donna Jeppersen, D.C., treated Tonya Jones for several years beginning in 2002. She reappeared as a patient from 2011 to 2013. It is this later period of care that became the focus of the lawsuit.
Dr. Jeppersen closed her solo practice in May 2013 and became an associate doctor with Dr. Dan Mercet at the Oak Street Chiropractic Clinic in Jackson, Mississippi.
Tonya was 28 years old and worked for a package delivery company as a loader. She had been a world-class sprinter in college and was currently a wide receiver for a women’s professional football league team. In addition, she was an aspiring Golden Gloves boxer.
Based on SOAP note summaries, Dr. Jeppersen was treating Tonya for recurring cervical, thoracic and lumbar segmental dysfunction with associated headache and hypertonicity, as well as recurring right elbow, right hip, and right knee joint dysfunction and restriction.
During this treatment period, Tonya needed assistance with finances to pursue her boxing ambitions. She was sponsored by a shoe manufacturer, as well as a maker of protective headgear. Oak Street Chiropractic Clinic and Dr. Jeppersen also became her sponsors.
Patient Asks Doctor to Travel with Her
Tonya sought more help from Dr. Jeppersen. She asked the D.C. if she would travel with her to tournaments both as her coach and as her chiropractor. Dr. Jeppersen took a class and became a Level 1 amateur boxing coach.
In July 2013, Tonya won the intercity Golden Gloves Championship in her weight class. Her goal was to win a regional Golden Gloves title to qualify for the World Golden Gloves event to be held in February 2014 in Stockholm, Sweden.
In September 2013, Tonya began to spar with male boxers in preparation for the regional bouts slated for early October in Tulsa, Oklahoma. On September 25 and 26, Tonya had particularly robust sparring sessions with a male who was several weight classes higher than she was.
Tonya complained of headache and neck pain following the sparring sessions; however, she made only one visit to Oak Street Chiropractic for an exam and treatment of her right elbow pain by Dr. Mercet because Dr. Jeppersen was unavailable. Dr. Mercet documented that neurologically Tonya was intact. Several days later, Tonya and Dr. Jeppersen made the road trip to Tulsa.
During the trip, Tonya continued to complain of head and neck pain, and Dr. Jeppersen provided undocumented chiropractic care. In addition, Jeppersen gave her over-the-counter pain medication and hydrocodone from her own personal prescription. This treatment regimen continued until October 2, 2013, the eve of Tonya’s first bout. She won that bout and had cleared the pre- and post-fight exams by the ringside physician.
Later that night, Tonya again developed head and neck pain. Once more Dr. Jeppersen provided Tonya with chiropractic care and gave her over-the-counter and prescription pain medications.
Unfavorable Turn at Boxing Match
On October 4, at 1 minute and 32 seconds into the second round of her fight, Tonya collapsed and began the fight for her life. She was sent to the Tulsa Regional Medical Center where she was diagnosed with a right temporal subdural hematoma, and she sustained multiple ischemic strokes.
Tonya remained in intensive care for three and one half weeks during which time she experienced pericardial effusion and respiratory failure. She was discharged from the hospital after 38 days and went directly to a skilled nursing facility for follow-up care and physical therapy. She remained in that facility for seven months and was then released to home care at her mother’s residence in Hattiesburg, Mississippi.
Tonya Jones was permanently and totally disabled from this severe brain injury. To this day, she suffers from chronic seizures. Her ability to ambulate is greatly diminished due to profound left-side weakness. She is unable to speak clearly and has severe cognitive and memory deficits. She will never work again; receives SSDI, Medicare and Medicaid; and will require continuous care with all aspects of life. At the time of the claim, Tonya’s medical expenses already exceeded $600,000, and they continued to be incurred.
A lawsuit was filed against Dr. Jeppersen, Dr. Mercet and his clinic, the Golden Gloves of America boxing association, and against the gym and trainer where Tonya Jones (now the plaintiff) trained.
The claims against Dr. Jeppersen included allegations of medical negligence, negligence as a boxing coach and general negligence. The claims against Dr. Mercet and the clinic were allegations of medical negligence and the negligent supervision of Dr. Jeppersen.
NCMIC immediately retained a defense attorney for Dr. Jeppersen and separate counsel for Dr. Mercet because their interests were diverse.
Right out of the gate, Dr. Mercet contested his liability as he only treated Tonya one time in his clinic for an elbow problem, which was hardly related to her brain injury. He also disavowed any responsibility for Dr. Jeppersen, as she was treating Tonya outside of the clinic and essentially off the books. Essentially, Dr. Mercet contended that Dr. Jeppersen had provided chiropractic care totally outside the scope of her employment.
Because not all of the allegations against Dr. Jeppersen were related to her chiropractic care and her NCMIC policy, her attorney looked to all potential sources of insurance coverages. She had a business owners’ policy that remained in effect from her solo practice days and a homeowners policy that were applicable because of the allegations of negligence as a boxing coach and general negligence. Those carriers were put on notice and participated in the defense of the case.
Plaintiff Claims that Sparring Spurred Injuries
The plaintiff’s case relied upon a theory of second or multiple impacts to the brain and that Tonya sustained a concussion during the September 25–26 sparring sessions. The theory was her brain did not have time to heal before sustaining further injury from subsequent blows to the head, which in turn had a cumulative effect and caused the massive hematoma and strokes. The allegations were that Dr. Jeppersen should have diagnosed the concussion, stopped Tonya from fighting, not provided pain medications to mask the injury and advised the ringside doctor of health issues prior to the fight.
As mentioned earlier, Tonya was briefly examined prior to each fight and after each fight by a ringside physician. It was clear she had made false statements and misrepresentations about her health and condition because she either did not mention head and neck pain or she denied having problems. Obviously, this would have been an issue raised in the defense of Dr. Jeppersen. Unfortunately, Dr. Jeppersen was in attendance at those exams as Tonya Jones’ coach, and she allowed the plaintiff to be untruthful about her condition. At the time, Dr. Jeppersen apparently did not interject Tonya’s true history either as her coach or chiropractor.
During the discovery phase of the case, NCMIC learned that Dr. Jeppersen provided dozens of undocumented treatments to Tonya. Consequently, the defense was severely handicapped.
What’s more, medical consultants retained for the defense agreed with the plaintiff’s expert that multiple impacts were the cause of Tonya’s injury. In addition, Dr. Jeppersen provided care in a number of states where she was not licensed to do so. Lastly, was the issue of giving the plaintiff her prescription drugs.
Because the case was virtually indefensible, NCMIC entered into settlement talks with the plaintiff with the consent of Dr. Jeppersen. On behalf of Dr. Jeppersen, the case settled for $1.9 million with $800,000 paid by NCMIC, $750,000 paid by the business owners’ insurance carrier and $350,000 paid by the homeowners insurance carrier. Dr. Mercet was dismissed from the case without an indemnity payment. The plaintiff reserved the right to pursue the case against the remaining defendants. NCMIC’s cost to defend the case was $135,000.
What Can We Learn?
By Jennifer Boyd Herlihy, Boston, Massachusetts, and Providence, Rhode Island
The concept of sports chiropractic may enthrall many doctors, but like sports themselves, it requires ongoing training, discipline and practice. Corners are not to be cut. In this case, it was clear there were breaches in the doctor’s ethical and professional clinical judgment.
Document, document, document
It’s all too easy to shortchange the rules of recordkeeping with family, friends, colleagues and patients who are engaged in sports. However, records form a foundational basis for the defense of any case. Therefore, recordkeeping shortcuts hurt a case’s defensibility and put a doctor’s license in peril.
When traveling with an athlete or team, doctors must ensure they are properly licensed where treatment will take place. In this case, Dr. Jeppersen rendered treatment in states where she was not licensed. While NCMIC defended her malpractice allegation, practicing without a license fell outside of her malpractice coverage. Additionally, the D.C. violated considerable laws when she gave her patient medications without the authority to do so.
Tender to all carriers
Because not all of the allegations against Dr. Jeppersen were related to the chiropractic care she provided, her NCMIC-retained attorney looked to all potential sources of insurance coverage. Her business owners’ and homeowners policies helped protect Dr. Jeppersen from an excess verdict.
Patient’s best interest
The cardinal rule for all healthcare providers is “Primum Non Nocere,” which means “First, Do No Harm.” Dr. Jeppersen forgot that rule when she did not disclose the patient’s health issues during a potentially dangerous boxing event, gave prescription medications that were not the patient’s to mask the symptoms and treated without documentation.
Further, Dr. Jeppersen allowed her personal involvement to overshadow her professional judgment. The blurring of boundaries, including sponsorship and coaching, should have led Dr. Jeppersen to refer the patient out for treatment.
Every case can be analyzed and dissected through a rearview mirror, and it is easy for reviewers and experts to comment after the fact about the right thing to do. That’s why it’s important to ask yourself: Would I be comfortable with how my actions would appear before my licensing board or a court of law? If the answer is “no,” then it’s time to alter your approach.
Jennifer Boyd Herlihy is 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.