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Immediate action may be needed when a patient exhibits red flags.

Risk Management

Doctor Who Ignores Warning Signs Faces Allegations

Todd Jones dropped out of high school in 1985 after his junior year. He later attended a local community college where he completed two years of a four-year carpenter's apprenticeship program.


In July 2011, when he was 43 years old, Todd began working as a commercial construction superintendent and was sent by his employer to a neighboring state to work on the construction of a chain restaurant. On Friday, November 11, 2011, Todd experienced back pain while hanging doors at the job site. Later that day, he flew home to spend the weekend with his family. He did not seek medical attention during the weekend, even though his pain had worsened.

Todd’s back pain continued to worsen after he returned to the job site on November 14, 2011. He noticed that Ready Chiropractic, Inc. was in the same strip mall where he was working, and on November 15, 2011, he presented to the clinic to seek relief for his back pain.

Upon presentation to Ready Chiropractic, Todd reported to Bob Jaxson, D.C., that he had been taking Lortab and Soma found in his family medicine cabinet for sciatic and a “pinched nerve” problem. His chief complaints were muscle spasms and low back pain that radiated down his right leg and worsened with sitting, standing, bending, or lifting. He also reported “fire and numbness” in his testicular and anal regions. However, Todd was able to walk from the waiting room to an examination room unassisted.

On physical examination, Todd had an impaired and slow gait. Spinal range of motion at the lumbar spine was limited in all areas. Reflexes were uniformly decreased. The Bechterew’s test was positive on both the right and the left, with the right much more positive than the left.

Dr. Jaxson also performed a straight leg raise test, Braggard’s test, double leg raise test, Hibb’s test, and the Ely’s test. All of these clinical tests were positive. Minor’s sign was also present, and X-rays were taken of Todd’s lumbar spine. Dr. Jaxson limited his treatment on this day to 15–30 minutes of electric stimulation to Todd’s back while he was in the prone position.

Patient Tries to Return to Work

Todd attempted to work on November 16, 2011, but had to lie down to relieve his continued pain. In addition to back pain, he continued to have numbness in his buttocks, and his testicles felt as if they were on fire.

Todd returned to Ready Chiropractic later that day, November 16. Dr. Jaxson showed him the X-ray from the previous day and explained he had degenerative disc disease at L5 caused by years of bending.

Dr. Jaxson proposed a two-week treatment plan, which included chiropractic manipulations to resolve the current problem. Although there was no informed consent form in the record, Dr. Jaxson later said he discussed the course of care with Todd, and he agreed to it.

Todd then received a 15–30 minute session of electrical stimulation and went into another treatment room for his chiropractic manipulation. According to Todd, he was asked to lie on his left side and “Dr. Jaxson then turned and kinked up my leg and then reared up on my right hip and pressed down, which caused my back to crack.”

Dr. Jaxson then asked Todd if he felt any better, to which Todd responded that he was in so much pain that he couldn’t tell. He did report that the burning sensation in his testicles and buttocks was worse than the previous day. After the appointment, Todd returned to the job site for the duration of the work day.

Todd was busy with city inspections on the date of his next appointment, November 17, 2011, and therefore was unable to see Dr. Jaxson. That evening Todd called his wife to tell her about his symptoms and treatment with Dr. Jaxson. She encouraged him to go to the emergency room, but he had been drinking and didn’t want to drive himself to the hospital. Todd did try to call a co-worker for a ride but was unable to reach him.

Todd awoke at approximately 5:30 a.m. on November 18, 2011, finding he had been incontinent of feces in his bed. In retrospect, he believed he may have been incontinent of urine the evening before but thought his pants had been wet from the condensation from the beer can he was holding between his legs as he drove to his hotel from the job site.

Hospitalization Needed

Todd presented to the ER at the local hospital on November 18, 2011. He reported injuring his low back at work one week earlier, and for the past four days, he had no feeling below his waist. Although Todd had good movement in his lower extremities, he denied any sensation other than burning and numbness in his scrotum, back and legs.

Todd shared that he went to a chiropractor a few days after the back injury and that the D.C. told him he had a disc problem in his lumbar spine. After seeing the chiropractor, Todd reported that his pain had continued to increase. What’s more, in the 24 hours before going to the ER, he had been having bladder and bowel control problems, as well as episodes of sharp pain in his buttocks and numbness that extended from his low back into both extremities. This led the ER physician to suspect cauda equina syndrome.

The ER physician examined the patient’s rectum and found no sphincter tone and diagnosed Todd with an acute neuropathy. Consequently, the physician arranged to have him airlifted to a larger hospital in a neighboring city.

When Todd arrived at this hospital, the physical exam findings revealed 4/5 right lower extremity strength and 5/5 left lower extremity strength in all muscle groups. Sensation examination was grossly abnormal with loss of sensation from below L3 in a “saddled distribution.” He had no rectal sphincter tone, no cremasteric reflex and no genital sensation.

An MRI from earlier that day revealed that Todd had a large extruded disc at L5–S1, central and right to the midline. The diameter of the spinal canal was suspected to be narrowed at that level, due to a combination of short pedicles and facet arthropathy. The MRI also demonstrated some evidence of disc protrusion at L4–L5 that was thought to be degenerative in nature.

Patient Diagnosed

Todd was diagnosed with an acute spinal cord compression, secondary to a bulging herniated disc. Immediately after diagnosis, he was taken to surgery and underwent an L5 laminectomy and bilateral discectomy. The extruded, ruptured disc was surgically extracted, representing approximately 3 cc of material.

Todd tolerated the surgery well, with good recovery of strength noted the following day. However, he had persistent “saddle” numbness and bowel and bladder incontinence. He was given physical and occupational therapy for gait training and was instructed to use a Foley catheter bag. While in the hospital, Todd learned to ambulate using a front-wheel walker. After arranging for Todd to be followed by a physician in his hometown, Todd was discharged from the hospital on November 21, 2011. Because Todd still had incontinence, he was discharged with the Foley catheter.

By June 2012, a local physician determined that Todd’s medical improvement had plateaued, and he didn’t expect future improvement. At that time, Todd was able to ambulate, but he experienced back pain when walking on an incline. He also had pain and numbness in the lateral aspect of his left leg that extended to the bottom of his foot. This numbness affected his gait.

Todd also told his physician that he only had very slight sensation in his penis and none in his testicles. He said he was unable to achieve an erection, and it felt like his penis had been injected with Novocain. In addition, Todd was incontinent of stool, secondary to his total loss of sphincter control. He had pain throughout his groin area and difficulty sitting for prolonged periods of time. He continued to experience urinary incontinence.

Lawsuit Ensues for Both Doctor and Practice

On October 30, 2012, Todd Jones and his wife (the plaintiffs) filed a lawsuit naming Bob Jaxson, D.C., as well as Ready Chiropractic, Inc., as defendants. The complaint set forth two causes of action:

  1. Malpractice and professional negligence
  2. Loss of consortium on behalf of Mrs. Jones

Dr. Jaxson was an employee of Ready Chiropractic, Inc., which was wholly owned by Eldon Ready, D.C. The corporation of Ready Chiropractic, Inc. was uninsured for malpractice (see sidebar) at the time Todd was treated by Dr. Jaxson. As a result, the practice owner, Eldon Ready, D.C., was personally liable for providing his legal defense, as well as the damages found against the entity itself. The defense of Ready Chiropractic was paid for by Eldon Ready, D.C., and Ready Chiropractic, Inc.

Dr. Jaxson was insured by NCMIC, and he promptly reported the lawsuit to NCMIC when he was served with the suit papers. Within two days of tendering this matter to NCMIC, Dr. Jaxson had an appointment and met with the attorney NCMIC retained to represent him in this matter, Colin Ray, Esq.

At this meeting, the attorney asked Dr. Jaxson to discuss the care and treatment he provided to the plaintiff. Dr. Jaxson described how when he first greeted Todd Jones, the patient told him he needed to be “popped.” Dr. Jaxson said he asked for more information, and Todd relayed he had low back pain, right greater than left, and pain radiating into his right gluteal region.

Dr. Jaxson explained that he had specifically asked whether Todd had any numbness, tingling, or weakness below the belt-line and any bowel or bladder incontinence. In response, Todd had stated that he complained of “fire and numbness” in his testicular and anal regions but denied having any weakness or incontinence. Further, the majority of his complaint was the radiating pain. Dr. Jaxson shared with his attorney that after this initial consult he performed a chiropractic examination.

Sparse Recordkeeping a Concern 

Attorney Ray discovered Dr. Jaxson’s treatment records on the plaintiff were sparse at best. Dr. Jaxson’s SOAP note from November 15, 2011, simply read, “Exam, lower lumbar.” Dr. Jaxson hadn’t documented the aforementioned conversation, nor did he document the examinations performed or their findings. In explanation, Dr. Jaxson mentioned he always performs the same series of examinations on patients presenting with low back pain. He also recalled that most, if not all, of his exam findings performed on Todd were positive.

Based upon his initial consultation and objective examination of Todd Jones, Dr. Jaxson said he believed a conservative course of chiropractic treatment consisting of physical therapy, electro modalities and general traction was warranted. However, he only administered electrical stimulation (not an adjustment) to Todd’s lumbar spine at the November 15, 2011, visit.

Dr. Jaxson explained to his attorney during this first meeting that Todd returned on November 16, 2011, with the same complaints as the previous day. Dr. Jaxson said his examination revealed tight and tender paraspinal muscles and that he performed an electro-modality treatment to relax the patient’s muscles and gentle traction mobilization. As Dr. Jaxson performed the traction, he asked the patient if it provided any pain relief. When Todd denied any relief, Dr. Jaxson discontinued the treatment.

Dr. Jaxson also told his defense attorney that following the treatment he advised Todd not to return to work that day and to refrain from bending at the waist for any reason. He also advised Todd to contact him immediately or proceed directly to the ER if his pain worsened or if he had numbness, tingling, or bowel or bladder incontinence.

Dr. Jaxson did not document any aftercare instructions; therefore, his recollection of these instructions was entirely from memory. Dr. Jaxson explained that it was his understanding that charting aftercare instructions was only optional.

Dr. Jaxson’s SOAP note from Todd’s November 16, 2011, appointment read as follows:

Subjective: Low back pain continues right greater than left.
Objective: Tight and tender lumbar paraspinals.
Assessment: Same.
Plan: Chiropractic manipulative therapy to lumbar, electrical stimulation.

Dr. Jaxson explained to attorney Ray that in Todd’s case, “chiropractic manipulative therapy” really meant traction but not a traditional adjustment. He was emphatic that he never did any chiropractic high-velocity, low-amplitude adjustments.

Case Assessed by Defense Team and Experts

Attorney Ray’s impression of Dr. Jaxson was that he was professional,presented himself as an intelligent and thoughtful person, and responded to questions in a straightforward manner. This attorney believed Dr. Jaxson would make a credible witness on his own behalf.

Conversely, Dr. Jaxson’s defense team believed Todd Jones came across as having intelligence significantly below that of an average person but as someone who was sincere and respectful. Attorney Ray described the plaintiff as "unsophisticated but likeable," and he didn’t believe he was intelligent enough to make up the history he provided or the treatment he received from Dr. Jaxson.

A Doctor of Chiropractic expert was retained to review this matter for Dr. Jaxson’s defense. His opinions were based on the assumption that Todd Jones did not report cauda-equina-like symptoms to Dr. Jaxson. According to Dr. Jaxson, Todd complained of low back pain that radiated into his leg. He made no mention of numbness, weakness, or other neurological symptoms which would have warranted an immediate referral. This D.C. expert did not believe there was anything about Todd’s presentation that would have made it incumbent upon Dr. Jaxson to immediately refer him for neurological consult.

In addition, the D.C. expert noted that if cauda equina syndrome was in fact in progress, there was no apparent evidence that Dr. Jaxson’s treatment was a specific and proximate aggravating factor. Therefore, this expert consultant believed Dr. Jaxson’s treatment appeared appropriate. However, the D.C. expert did express concerns with attorney Ray about a couple aspects of Dr. Jaxson’s care:

  • Although the D.C.’s X-rays were not of diagnostic quality, they were not retaken.
  • Even though Dr. Jaxson said Todd agreed to chiropractic care, there was no informed consent form in his record.
  • While the expert didn’t think the doctor was obligated to refer the patient, he did think it would have been advisable when the patient mentioned “fire and numbness” in his testicular and anal regions.

The neurosurgeon retained for Dr. Jaxson’s defense was of the opinion that, assuming Dr. Jaxson only applied gentle traction, nothing Dr. Jaxson did caused or exacerbated the plaintiff’s herniation or led to the development of his cauda equina syndrome.

Mediation Mandated

The court ordered this case to mandatory mediation. Prior to mediation, the NCMIC defense team discussed and assessed the pros and cons of the case. Attorney Ray thought an argument could be made that the cauda equina syndrome progressed on its own. If anything, the condition was aggravated primarily by the patient’s work, rather than anything the provider did. However, the defense team was concerned that the doctor’s poor quality X-rays and recordkeeping, as well as his failure to at least consider a referral, based on the patient complaints, would hurt the defense of this case.

Around this time, the plaintiff’s attorney provided the NCMIC defense team with an estimate of damages, should the case be tried. This attorney contended that his expert consultant would opine lost past wages and benefits and lost future wages and benefits would be $1,233,978. Past medical expenses were $140,386 and growing. General damages were calculated to be $500,000, the maximum allowed by the state in which the suit was brought. Adding in a life care plan calculated by plaintiff’s expert,the total damages claimed at trial would be $3,494,261. In contrast, the total damage exposure calculated by the defense team, on the high end, was $1,365,000.

After hearing these numbers and conferring with counsel about the pros and cons of the case, as well as the personal exposure the doctor faced for any judgment above his $1 million policy limit at trial, Dr. Jaxson became very anxious and requested his attorney attempt to settle the case. Dr. Jaxson’s defense team believed the chances of winning the case was marginal and agreed that it would be in the doctor’s best interest to settle.

Consequently, Dr. Jaxson provided his written consent to settle. Todd Jones’ attorney made an opening demand at the mediation in the amount of $2,769,000. After a great deal of back and forth, the claim resolved for approximately 10 percent of the initial settlement demand. NCMIC’s legal expenses and fees to defend Dr. Jaxson in this matter was $148,838.06.

What Can We Learn?

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

Red flags

Testicular and rectal numbness are red flags for cauda equina syndrome. In this case, Dr. Jaxson should have considered immediate action and possibly a referral. Also, when the patient alluded to a chiropractic adjustment it should have alerted Dr. Jaxson that the patient had previous chiropractic care and prompted him to investigate. Finally, because the patient had access to and had taken Lortab and Soma, Dr. Jaxson should have questioned the chronicity of the problem and conducted an in-depth patient history and evaluation of that issue.

Aftercare 

Instructions for care at home and between visits are as important as the actual exam findings. Also, in the courtroom, lack of documented evidence about instructions given is perceived as the equivalent of no instructions given.

Records 

Another reason to have good recordkeeping is that after a lawsuit is filed, a doctor’s unwritten recollection of the events, symptoms, treatments and instructions may be seen as self-serving by a jury. In this case, detailed records, including a properly executed informed consent form, could have improved the defense’s position.

Credibility 

The question of who to believe is critical in any jury decision. In this case, the jury might have believed the doctor had motive to testify that he did not adjust the patient. However, it would be difficult for a patient to describe a specific procedure unless it was performed, which may lend credibility the patient’s description of the adjustment. In this case, the documentation supported the patient.

Non-diagnostic radiographs

Because non-diagnostic X-rays cannot identify a patient’s condition, they often create credibility issues for the doctor. A skilled attorney will ask why the doctor used poor quality films to make important decisions. Also, if an X-ray is not useful but is billed to a third-party carrier, it may be considered fraud and create further credibility issues for the doctor.

Coverage issues

Although NCMIC will support you to have your day in court, not every case is best tried in a courtroom. Deciding whether to settle or not settle is often a complex decision that should be made in consultation with counsel. Although your attorney is paid by NCMIC for their time, the attorney’s duty is to serve your best interests. In this case, Dr. Jaxson was likely best served by settling.

Entity coverage

Ready Chiropractic, Inc. was not insured, so the burden of the cost of its defense was on its practice owner, Eldon Ready, D.C. The result of the lawsuit against Ready Chiropractic is unknown, but Dr. Ready could have suffered vast personal liability and economic exposure, as well as legal expenses to defend the clinic. 

Patient noncompliance 

When a patient does not comply with a doctor’s instructions, the doctor should document the behavior and consider termination of care. If that would have happened when Dr. Jaxson instructed Todd to not go to work and the patient did not comply, this case may have ended differently.
 

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.


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Examiner case studies are derived from the NCMIC claims files. All names used in Examiner case studies are fictitious to protect patient and doctor privacy.