Documentation image

When clinical records are sparse and billing records are not detailed, it can create credibility issues for the doctor.

Risk Management

Doctor's Faulty Recordkeeping Impairs Foundation of Defense

Tim Rae was a police officer from 1975 to 1992 before retiring on disability after four surgeries on his knee. He had a torn meniscus in his right knee and suffered nerve damage from a fall down a stairway that was re-injured from falling on the job.


After retiring, he received a bayman's commercial license to be able to clam, scallop and fish as an occupation.

Early in 2001, Tim woke up with stiffness and pain in his neck that wouldn’t resolve, and he sought treatment with Ron Rossey, D.C., who referred him for an MRI with a neurologist. This MRI revealed degenerative arthritis.

Tim returned to Dr. Rossey for treatment, and his neck pain resolved. He continued to treat sporadically with Dr. Rossey, primarily for gluteal pain radiating down his leg as a result of his bayman activities. Dr. Rossey treated Tim a total of 130 times over a period of six years, but there was no comprehensive treatment plan in the record.

On August 28, 2006, following an 8-month absence from seeing Dr. Rossey, Tim presented with complaints of sharp burning sacroiliac pain. Tim said it was the same pain Dr. Rossey had treated him for during the last 5 to 6 years.

Dr. Rossey routinely performed a complete workup of his patients when they returned for treatment following an extended absence from care. He believed he did this on the August 28 visit, but there were no findings documented in the record. In Dr. Rossey’s practice, this lack of documentation meant no new symptoms were elicited during the examination. Therefore, Dr. Rossey adjusted Tim’s full spine on August 28 and August 30. Tim didn’t voice any complaints that were documented following these visits.

At his next appointment on September 20, 2006, Tim had an obvious ataxic gait, and Tim told Dr. Rossey that he had been experiencing numbness from the nipple down for approximately 10 days. Dr. Rossey examined Tim with a pinwheel to elicit sensation; however, he did not document his findings. He then applied heat to Tim’s back. Dr. Rossey recommended that Tim see a neurologist, although he didn’t refer him to a particular provider. Tim found a local neurologist in the phone book and made an appointment for two days later.

Patient Sees Neurologist

On September 22, 2006, Tim presented to Kim Yeager, M.D., a board-certified neurologist. Dr. Yeager documented that Tim had progressive neurologic symptoms that began in the leg and radiated upward. Tim told Dr. Yeager that his symptoms began within days of a chiropractic adjustment. Dr. Yeager didn’t render treatment to Tim and referred him to a local hospital for evaluation and imaging studies.

At 6:16 p.m. that evening, Tim presented to the ED at the local hospital for the imaging studies. He complained of tingling in his lower legs and numbness from his mid-abdomen to the bottom of his heels. These symptoms had persisted on both sides for the past two weeks.

An MRI of the full spine, without contrast, was ordered. Due to Tim’s claustrophobia in the MRI machine, the study was compromised. Tim was instructed not to leave the hospital until the MRIs were reviewed by radiology, but he left the hospital against medical advice. Tim said he would follow up with Dr. Yeager or return to the ED if symptoms worsened.

The MRI findings were:

  • Multi-level disc disease and central spinal canal stenosis at C3–C4,C4–C5 and C5–C6.
  • Severe central canal stenosis at C5–C6. However, this evaluation was limited due to Tim’s movement during the MRI.
  • Severe central spinal canal stenosis at T2–T3.
  • Grade II Spondylolisthesis of L5 on S1.

The radiology department at the hospital sent Tim’s MRIs to a radiology center for an over read. The MRI of the T-spine noted a chronic—not a new—anterior compression fracture of T7, mild-to-moderate canal stenosis at T2–T3 secondary to minimal anterolisthesis of T2 on T3, disc bulging and spondylotic disc ridging with mild myelomalacia in the left paracentral aspect of the cord.

There was also a large left paracentral focal disc protrusion at T6–7, causing mass effect upon the spinal cord without evidence of myelomalacia. The MRI of the C-spine noted multilevel degenerative disease within the cervical spine without significant canal or neural foraminal stenosis. Results of the lumbar spine noted bilateral chronic spondylolysis at L5 and grade I anterolisthesis of L5 in relation to L4 and S1. It showed significant bilateral neural foraminal narrowing at L5-S1 with possible encroachment on the left and right existing nerve root. These findings were communicated to Dr. Yeager in a phone call.

Neurosurgeon’s Evaluation

Due to a cancellation, Dr. Yeager was able to schedule Tim to see a neurosurgeon on September 27, 2006. The neurosurgeon’s musculoskeletal exam identified slight paraspinal muscle spasm of the cervical and thoracic spine without tenderness or decreased range of motion. His neuro exam noted negative straight leg raising, muscle strength 5/5 in all groups of Tim’s upper and lower extremities. Deep tendon reflexes were 2+, but hyperreflexic bilaterally at the patella. His gait was documented by Dr. Yeager as spastic.

The neurosurgeon’s impression was that Tim’s symptoms related to spondylolisthesis of T2 and T3 with cord changes. He started Tim on a steroid-tapering dose and ordered an EMG. The EMG was suggestive of radiculopathies of L4-L5 and L5-S1.

Tim returned to the neurosurgeon on October 12, 2006. He reported improvement over the last two weeks. He still had mild weakness proximally in his legs, but his gait and sensation had improved. The surgeon's impression was that Tim had progressed nicely, and he was not inclined to advise surgery at that time.

Over the next six months, Tim had weight loss, difficulties with his left lower extremity (he called it a “dead leg”), an irregular gait and hyperreflexia. By May 2007, Tim experienced increased dysesthesias, primarily in the left flank extending onto the chest wall. He reported to the neurosurgeon that his gait had become more unsteady and his pain increased. Because conservative management of Tim’s condition wasn’t working, the surgeon switched gears and became more aggressive in his treatment approach. He recommended a follow up MRI and likely decompression surgery at T2–T3.

Surgery Performed

Tim underwent the recommended follow up MRI, which revealed the same stenosis with evidence of signal changes within the cord at T2–T3 that the previous studies had shown. As a result, on May 9, 2007, he had the following surgical procedures performed:

  • Partial laminectomy of T1.
  • Complete laminectomy of T2–T3.
  • Partial laminectomy of T4 for decompression of the upper thoracic spinal cord.
  • Posterolateral fusion of T1–T4 with instrumentation.

In the next year and a half, Tim complained of significant cervical pain. This pain extended into his upper thoracic region and included a burning sensation. He also complained of tremors in his left leg and difficulty with ambulation that was secondary to subjective weakness in his left leg and complaints of clonus spasticity pain of the left ankle.

When Dr. Rossey arrived at his office on October 13, 2008, he was served with a lawsuit that alleged he failed to properly record and document the plaintiff’s physical signs, symptoms, and complaints. The lawsuit also alleged Dr. Rossey failed to recognize that these complaints would reveal a contraindication to manipulations and performed manipulations that were contraindicated. Dr. Rossey reported the lawsuit to NCMIC, and an attorney, Kevin Mason, was retained to defend him against the allegations.

Attorney Mason filed an Answer to the Complaint, and once he obtained medical records and reports and exchanged paper discovery with the plaintiff's attorney, he noticed Tim Rae for his deposition. After Tim gave his testimony, attorney Mason felt that he was a poor historian about timeframes and treatment dates throughout his deposition. At times, he appeared to be disingenuous in that he testified that he did not have any back complaints prior to the treatment with Dr. Rossey in August and September 2006. However, he had a lengthy chiropractic history.

Dr. Rossey Testifies

Dr. Rossey testified at his deposition that, among other things, his standard procedure was to perform supine thoracic adjustments, and he would have performed that type of adjustment on Tim. He stated the supine maneuver is the least forceful adjustment on the spine. He also testified that the line of drive for Tim’s spine fracture was inconsistent with the supine adjustment. Dr. Rossey didn’t recall Tim voicing any complaints after the August 28 and August 30 treatments. Plus, the changes on the MRI were “chronic.”

Dr. Rossey testified that Tim stopped by his office in December 2006 to bring in a check from his insurance company for payment of two additional treatments in September 2006, in addition to the September 20, 2006, appointment. However, Dr. Rossey claimed that treatments on these dates did not take place—it was a simply a billing error, and the check was returned to Tim’s insurance carrier well before the case began. In addition, Dr. Rossey pointed out there was no documentation that these visits occurred. Attorney Mason was concerned the plaintiff’s attorney would use the billing records to corroborate Tim’s contention that Dr. Rossey adjusted him more than once in September 2006, harming Dr. Rossey’s credibility.

Attorney Mason retained Jill Larson, D.C., to review this matter as an expert consultant. Dr. Larson described Dr. Rossey’s documentation in the treatment records as repetitive and lacking in detail regarding Tim’s care. In contrast, Dr. Rossey’s billing records contained significant details. Dr. Larson thought this might suggest Dr. Rossey had misplaced priorities and further hinder the D.C.’s credibility.

Attorney Assesses Case

In early June 2010, attorney Mason sent a report to the NCMIC claims professional representative assigned to the case, which outlined:

  • Due to the lack of documentation and the discrepancy between Tim’s testimony and Dr. Rossey’s, credibility of the parties may be an emphasis.
  • The lack of radiographic evidence, combined with the lack of a comprehensive documented neurological examination over many years, will be difficult to overcome.
  • If Tim did have a fracture prior to August 2006, the adjustments Dr. Rossey performed would have been contraindicated if the fracture was old and hadn’t healed.
  • Tim alleged that he saw Dr. Rossey on two occasions in September 2006, and that Dr. Rossey performed an adjustment after he presented with an ataxic gait. If so, Dr. Rossey would probably be found liable because an adjustment would be contraindicated.

Attorney Mason estimated a jury would award Tim between $900,000 and $1 million if Tim prevailed at trial. He felt the case had a settlement value between $500,000 and $600,000, and he estimated he would only be able to successfully defend Dr. Rossey at trial 35 percent of the time.

The NCMIC claims representative discussed the report with attorney Mason and disagreed with the evaluation, pointing out the many angles this case could be defended from a proximate cause perspective. Because the attorney was focused on Dr. Rossey’s lack of documentation, he didn’t believe he could successfully defend the case. Therefore, the claims representative transferred Dr. Rossey’s case to attorney Keith Hoover, who agreed that Dr. Rossey’s care was defensible.

Case Options Identified

Over the next several months, NCMIC-retained attorney Hoover and the claims representative worked together closely to determine the specialties of the expert witnesses needed to defend Dr. Rossey and to identify these experts. As the trial date neared, Dr. Rossey started asking his defense team questions about having the case settled.

Attorney Hoover explained that the plaintiff would probably demand at least his full policy limits of $1 million to settle. In addition, the defense had retained excellent experts who would testify that Dr. Rossey didn’t cause Tim’s problems. Therefore, the defense team advised against settling. Given these assurances, Dr. Rossey agreed it made sense to proceed with the case.

At a July 26, 2012, settlement discussion, Tim’s attorney demanded $1 million to settle. He said Tim would rather lose at trial than agree to anything less than $250,000. Therefore, the defense team did not counter this settlement demand. When Dr. Rossey learned the case didn’t resolve, he expressed a concern that he would lose up to two weeks of income if the trial took place during his busy summer season. Attorney Hoover filed a motion to continue the trial after the Labor Day holiday, and the judge granted this motion.

Trial Developments

The trial began and the defense team rated the jury as fair to good, with highlights of the trial as follows:

Day 1—Dr. Rossey was the first witness called to testify by Tim Rae’s attorney. Dr. Rossey did an effective job of testifying, and the plaintiff’s attorney did not bring up sparse records as much as expected. A huge shock was that Tim’s attorney alleged that Dr. Rossey had herniated Tim’s T6 disc, even though surgery was performed on T1–T3. Dr. Rossey was strong in his testimony that he adjusted Tim’s upper thoracic spine but not T6, and this was substantiated by his treatment records, though sparse.

Day 2—The plaintiff’s standard of care expert consultant, Sam Blackett, D.C., was the first witness of the day. Dr. Blackett nit-picked Dr. Rossey’s records, lack of exam and imaging studies. He testified that a supine thoracic adjustment uses a lot of force, and had Dr. Rossey taken an X-ray, he would have known it was a contraindication to adjust a patient with a new T7 fracture. Dr. Blackett did not have an answer for how an adjustment at T1–T4 would affect T7.

Day 3—Tim Rae testified that he was granted disability from the police force because he could no longer run due to his knee injuries and that by mid-September 2006 he could no longer work. However, the NCMIC-retained attorney presented the neurologist’s September 22, 2006, treatment record that referenced Tim Rae was still clamming. At day’s end, the judge called the parties to the stand to ask if there was any interest in settling, and Tim Rae’s attorney quickly responded that they had no interest.

Day 4—The plaintiff’s neurology expert testified that he performed a physical examination on Tim on September 22, 2006. He noted that Tim reported severe pain in his upper back and lower neck, as well as upper abdominal pain. He also exhibited painful behaviors in both shoulders and jerking movements associated with the onset of his abdominal, upper back and lower neck pain. He had an unsteady gait related to numbness and weakness of the left leg and upper back pain. This neurologist attributed Tim’s issues with his thoracic, cervical, lumbar and sacral spine to chiropractic treatment rendered by Dr. Rossey in September 2006. The plaintiff rested its arguments, and it was time for the defense to put on its case.

Day 5—Expert witness Jill Larson, D.C., did a nice job testifying on behalf of Dr. Rossey. However, when cross examined, she remarkably admitted that in light of no other intervening factors, it could be assumed Dr. Rossey’s treatment caused Tim’s spine injury. Despite this small setback, the neurosurgeon who testified next stated Tim’s problems were not due to an adjustment on August 30, 2006 because:

  • Tim’s initial complaint of pain wasn’t shared until several days after the adjustment.
  • Steroid injections resulted in improvement, and when stopped, the patient’s condition worsened. An acute injury wouldn’t act in this manner, according to the neurosurgeon.
  • The deficit was essentially sensory and not motor, which suggests chronic degeneration rather than an injury.
  • Tim complained among other things of weakness in his arm and T2 is below the arm, which is controlled by C4–C6. This occurred when Tim was found to have hyperreflexia in both arms, which are controlled by the cervical spine.
  • The surgery was not effective in relieving the condition.
  • There was no evidence of acute trauma on X-rays taken on September 22, 2006. There was no hematoma, bleeding or swelling of tissues or ligaments. If there was an injury to the thoracic spine, it wasn’t recent.
  • Displacement of the spine takes a great deal of force, especially in the thoracic area where the spine is anchored and held in place by the ribs. The thoracic area isn’t “floating” like the lumbar and cervical spine regions.

After this testimony, Tim’s attorney lowered his demand to $700,000. The defense team considered making a counteroffer of $100,000, but ultimately decided against it.

Day 6—The neuroradiologist retained for Dr. Rossey’s defense was extremely effective in educating the jury. He explained what the imaging studies meant and why the areas of injury couldn’t have been caused by a chiropractic adjustment. This testimony discredited the opinions of the plaintiff’s neurology expert who admitted that he had not viewed any of the numerous imaging studies—he had just read the reports on them. Following closing arguments, the plaintiff made a new settlement demand of $350,000, and attorney Hoover believed the plaintiff would accept $250,000. The jury then began its deliberations of the evidence.

The following morning, the jury reconvened deliberations, and the judge asked the attorneys if there had been any settlement talks. The defense team had decided earlier that morning not to make any offer of settlement, and attorney Hoover shared with the judge that they were prepared to accept the jury’s decision.

Within two hours, the jury returned with a unanimous defense verdict for Dr. Rossey, including the standard of care issue. NCMIC’s legal expenses to defend Dr. Rossey totaled $213,593.

What Can We Learn?

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

Assessment

Treating a patient over the years can lead a doctor to become complacent and miss a patient’s changing condition. A doctor can overcome this tendency through “present-time consciousness.” On the flip side, Dr. Rossey claimed he followed standard procedures in his practice. Yet, he sent Tim to a neurologist for an MRI at one appointment, but then didn’t after the patient demonstrated neurological symptoms. Also, it was the patient’s history not the fracture that presented the red flag because an old/healed compression fracture is not an absolute contraindication to SMT. Numbness of the torso should have prompted Dr. Rossey to reassess the patient.

Documentation

“If it wasn’t written down, it wasn’t done” has been a legal precedent for decades. Documentation should include a record of responses to treatment, and negative examination findings are just as important to document as are positive findings. A patient’s re-evaluation should include how often the treatment took place and under what circumstances. Dr. Rossey’s clinical records were repeatedly noted to be non-existent to sparse—inadequate to support his care and therapeutic conclusions. Despite a successful outcome in this case, proper documentation is essential.

Office procedures

Dr. Rossey testified that it was his standard procedure to perform a complete workup of his patients after an extended absence from care, but this wasn’t documented. Dr. Rossey also treated Tim a total of 130 times in nearly six years, but there was no comprehensive treatment plan in the record, which could raise questions about whether the chiropractic care resulted in any improvement. Moreover, Dr. Rossey’s sparse clinical records were in contrast to his detailed billing records, which could be perceived by a jury that money was more important to him than the care he provided.

Defense team

In rare instances, a case may take an unexpected turn, and a different attorney may evaluate the case differently and have further suggestions. In that event, NCMIC will go the extra mile to find the right attorney for the case. Expert witnesses, defense counsel and the claims department are all important. Most of all, having a company that is truly committed to standing behind its doctors is critical to making all aspects of the defense come together.

Consent to settle

At NCMIC, a doctor has the right to settle—or not settle—a case, which then gives the defense the opportunity to attempt to resolve the case (with no guarantee that it will resolve). Of course, the decision to settle might be determined to be the right one by the defense team. In this case, the defense team rightly decided against settling this case in light of the strong experts they identified, as well as facts that pointed to a likely favorable outcome.

Experts

In this case, the plaintiff’s standard of care expert was unable to explain how an adjustment at T1–T4 would affect T7. In contrast, the neurosurgeon obtained by the defense team was able to clearly delineate the clinical reasons why Dr. Rossey was not negligent. An expert who will educate a jury about the pathophysiology of findings and who can clarify unsupported claims is important. NCMIC utilizes outstanding experts from all fields to defend its doctors.


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.


The information in the NCMIC Learning Center is offered solely for general information and educational purposes. It is not offered as, nor does it represent, legal or professional advice. Neither does this information constitute a guideline, practice parameter or standard of care. You should not act or rely upon this information without seeking the advice of an attorney familiar with the specific legal requirements of the state(s) in which you practice. If there is a discrepancy between the site and an insurance policy you have with NCMIC, the policy will prevail.

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.