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A key element in the defense of a malpractice case is a doctor's informed consent process.

Risk Management

Informed Consent Is a Critical Component in Doctor's Case

Sam Joneson, D.C., first saw Lisa Coxe at his practice, Downtown Chiropractic, in mid-March 2012. Lisa was in her first trimester of pregnancy, and she presented with complaints of chronic low back pain that recently flared up.


Because of Lisa’s pregnancy, Dr. Joneson did not take X-rays as he typically would have. However, based on Lisa’s history and physical exam, Dr. Joneson was able to determine Lisa had a mild disc problem. It was not Dr. Joneson’s normal practice to obtain a patient’s informed consent before chiropractic care because he believed he could safely perform chiropractic manipulations.

During each of several appointments in April and May, Dr. Joneson performed high velocity/low amplitude spinal adjustments. Lisa said at the time that the adjustments helped ease her pain somewhat.

Lisa returned to Dr. Joneson on May 24, 2012, with similar complaints to those she had at her mid-April visit. Dr. Joneson performed a chiropractic adjustment, but since Lisa was still in significant pain, Dr. Joneson scheduled her to return the next day.

That night, however, Lisa’s pain was severe, so she went to the emergency room at General Hospital where she was diagnosed with piriformis syndrome and sciatica. She was given an injection of Demerol and instructed to follow up with her family physician the following day.

The next morning, May 25, Lisa saw Leah Lathe, M.D., at River Professional Associates (RPA), a private family practice where Dr. Lathe was employed. At this visit, Lisa complained of urinary retention. Suspecting a UTI, Dr. Lathe sent her for a urinalysis. According to Lisa, Dr. Lathe told her she could continue with chiropractic care if she desired.

Patient Returns to Dr. Joneson for Care

Later that morning, Lisa returned to Dr. Joneson’s office, and he administered his usual chiropractic adjustment. Then, as he checked to see if Lisa would also tolerate the flexion distraction technique, she cried out from pain. Dr. Joneson stopped immediately, and Lisa left the office without further discussion.

At this visit, there were no notes in Dr. Joneson’s chart about Lisa’s urinary symptoms, nor did Dr. Joneson later recall her mentioning any urinary complaints. However, Lisa subsequently testified that she had told Dr. Joneson she was experiencing urinary retention.

In the early morning hours of Saturday, May 26, Lisa went to the hospital emergency room again. The on-staff physician promptly referred Lisa to the obstetrical department where she was seen by Jason Francis, M.D., who was covering for Lisa’s regular obstetrician. Dr. Francis told Lisa that she wouldn’t be able to be seen for a neurology consultation until Monday anyway. Therefore, Dr. Francis simply catheterized Lisa and sent her home, with the instructions to return Monday morning if she didn’t improve.

Lisa returned and was admitted to the hospital on Monday morning, May 28. After evaluation by her regular obstetrician, as well as a neurologist and a neurosurgeon, she was transferred to a university hospital for surgery for cauda equina syndrome. The reason for the transfer was that her pregnancy presented a complex case, and the university hospital was better equipped for it. Lisa underwent neurosurgery on May 30, 2012.

Post-surgery Lisa was left with bowel and bladder dysfunction. She also had lost virtually all feeling in her sexual organs. Lisa was able to have a normal delivery of her baby, and the baby suffered no ill effects from either the injury or the surgery.

Lawsuit Ensues

Approximately one year later, on June 3, 2013, Lisa Coxe (now the plaintiff) initiated a lawsuit against several parties.

The lawsuit alleged that Sam Joneson, D.C., negligently treated Lisa Coxe. Dr. Joneson’s practice, Downtown Chiropractic, was also a named defendant for vicarious liability. Dr. Joneson promptly notified NCMIC about the lawsuit against him and his practice, and NCMIC assigned experienced counsel to defend the suit.

In addition, Leah Lathe, M.D., was named a defendant, as were RPA and General Hospital, based on the theory of “respondeat superior”—that an employer is responsible for the actions of employees performed within the course of their employment. It is noteworthy that although Dr. Lathe treated Lisa at RPA, she did not treat the patient at General Hospital’s ER, the entity that employed her for emergency shift work.

As discovery progressed, both General Hospital and RPA were dismissed from Lisa Coxe’s lawsuit, based on a motion for summary judgment filed by their defense attorneys. Consequently, Dr. Lathe, Dr. Joneson and Downtown Chiropractic were the remaining defendants in the lawsuit.

Evidence on Liability and Causation Gathered

The attorney for Lisa Coxe retained an emergency medicine physician to criticize Dr. Lathe’s care. This physician testified that Lisa presented to Dr. Lathe with almost classic symptoms of cauda equina syndrome during the morning of May 25, 2012. As such, Dr. Lathe should have referred Lisa for an urgent neurology or neurosurgery evaluation. According to this physician, had that referral taken place, Lisa could have been diagnosed and surgically treated before her deficits became permanent.

The chiropractic expert retained by the plaintiff’s counsel to criticize the care provided by Dr. Joneson and to provide causation testimony alleged that Dr. Joneson violated standards of care because he:

  • Failed to obtain Lisa Coxe’s informed consent
  • Did not fully assess her condition (based on the inadequate evaluation noted in his chart)
  • Failed to refer Lisa Coxe in a timely fashion so she could have been identified as a neurosurgery candidate and treated prior to developing the condition
  • Treated her at the May 25, 2012, visit, which caused the cauda equina syndrome to worsen

The physician and the chiropractic experts’ theories against Dr. Lathe appeared to be inconsistent. The physician expert contended Dr. Lathe should have diagnosed Lisa’s cauda equina syndrome the morning of May 25, 2012; however, the chiropractic expert said it did not develop until Lisa was treated later that day by Dr. Joneson. As a result of this inconsistency, Dr. Lathe was dismissed from the lawsuit.

Remaining Defendants

Sam Joneson, D.C., and Downtown Chiropractic were now the remaining defendants in the lawsuit. The plaintiff was allowed to amend their complaint to add a count of failure to obtain informed consent. The lawsuit contended that a reasonable person in Lisa Coxe’s position would have decided against treatment had the material risks been disclosed.

This count specifically alleged Sam Joneson, D.C., and Downtown Chiropractic (through direct liability and/or vicarious liability):

  • Failed to disclose to and discuss with Lisa Coxe the dangers inherent and potentially involved with respect to the proposed treatment
  • Failed to disclose risks and dangers that materialized and were the proximate cause of Lisa Coxe’s injury

During the next 10 months, experts retained by both the plaintiff and the defense were deposed, and discovery was completed. As the trial date approached, the plaintiff made a settlement demand in the amount of $1 million. Dr. Joneson authorized NCMIC to make a one-time offer of $25,000 to counter the plaintiff’s settlement demand. This offer was rejected, and the case proceeded to trial.

The plaintiff’s attorney began the case with testimony from Lisa Coxe who was an effective witness on her own behalf. She gave heartfelt testimony about her bowel and bladder incontinence issues and that she had virtually no sensation in her sexual organs.

Lisa also testified she had told Dr. Joneson about more symptoms on May 24 and May 25 than what his documentation showed. She further contended that on May 24, Dr. Joneson’s adjustment was so painful she nearly rolled off the table.

Next was testimony from Lisa Coxe’s treating urologist, a board-certified urologist with a sub-certification in female pelvic medicine. This expert urologist witness explained that post-surgery Lisa had a neurogenic bladder, which he believed would be permanent. He testified that Lisa had to double void and follow other regimens to empty her bladder. He further testified about Lisa Coxe’s lack of sensation in her sexual organs.

The plaintiff’s chiropractic expert found deviations in the standard of care in every aspect of Dr. Joneson’s treatment. He testified that Dr. Joneson deviated from the standard of care by failing to order an MRI when he saw Lisa on May 24, 2012, and the manipulations he performed on Lisa damaged her already problematic lumbar disc. With respect to informed consent, this expert testified that Dr. Joneson deviated from the standard of care when he failed to advise Lisa that cauda equina syndrome could occur as a result of a spinal manipulation.

The plaintiff’s final witness was Lisa’s treating neurosurgeon. He testified that Lisa’s surgery was high risk because she was pregnant. During surgery, the neurosurgeon removed a large ruptured disc from Lisa’s lumbar region. Given Lisa’s history, he opined that the chiropractic adjustments on May 24 and May 25 caused the disc to rupture.

Defense Weighs in

The NCMIC-retained defense attorney had Dr. Joneson testify about his initial evaluation of Lisa and how he identified intervertebral disc syndrome. He was able to effectively describe the high velocity/low amplitude spinal adjustment he performed on Lisa on each occasion. Dr. Joneson’s flexion distraction table was brought to the courthouse, and he demonstrated how he would use the flexion distraction technique. Dr. Joneson clarified that he did not administer this treatment to Lisa Coxe but instead gave her a tolerance test and immediately stopped when it became too painful.

David Ropert, D.C., the chiropractic expert retained for Dr. Joneson by the NCMIC defense team who testified next was impressive in his justification of why Dr. Joneson’s evaluation of Lisa was appropriate; his diagnosis and treatment plan were proper; and the treatment was within the standard of care. Dr. Ropert explained that standards of care do not require perfection, and each chiropractor’s approach may differ. He further described how Dr. Joneson was able to identify Lisa’s condition based on the consultation and exam, which eliminated the need for an MRI. Dr. Ropert also went on record stating that most insurance companies will not pay for an MRI until after a patient undergoes a course of conservative treatment for low back pain.

The NCMIC defense team also retained neurologist Rayann Snead, M.D., as a causation expert for the defense. Dr. Snead explained why spinal adjustments do not cause cauda equina syndrome. She advised that while it was possible for significant trauma to rupture a disc, it would require much more force than what is administered during a spinal adjustment. In the case of Lisa Coxe, it was her professional opinion that the cauda equina syndrome evolved from natural disc pathology.

At this point, the defense and plaintiff’s attorneys made their closing arguments. Following these statements, the judge provided the jury with the following explanations about informed consent, material risk and technical battery:

Informed consent: A chiropractor has a duty to disclose material risks of a procedure to his or her patient prior to performing a procedure. This duty arises when:

  1. The risk of injury inherent in the treatment is material.
  2. There are feasible alternative courses available.
  3. The patient can be advised of the risk and alternatives without detriment to the patient’s well-being.

Material risk: In the state where this case took place, a chiropractor is not required to disclose to a patient all of the possible risks and dangers of proposed treatments or procedures. Rather, he or she is only required to disclose results that might well occur and is not required to disclose risks that are extremely remote or unexpected results that are of little consequence.

Technical battery: If the jury finds the defendant did not obtain the informed, expressed or implied consent of the plaintiff to the treatment, the jury must then determine whether the plaintiff would have consented to the defendant’s treatment had she been fully informed. If it is determined that she would not have consented and that the treatment caused the injuries claimed, then the jury may award damages to the plaintiff. In law this is called a “technical battery,” and it is a different theory of liability than negligence. It is not necessary to find the defendant negligent to award damages for technical battery.

Jury Findings

Four hours into deliberations, the jury asked if Lisa Coxe had paid any medical bills out of pocket. The court’s response was it was not for their consideration whether she had paid any medical bills out of pocket. Twenty minutes later, the jury returned with a verdict.

The jury found that Dr. Joneson was not negligent in his treatment of Lisa Coxe, did not cause her injury, and did not commit battery. However, the jury found that Dr. Joneson did commit the tort of lack of informed consent, directly and proximately causing injury to Lisa Coxe. In the state where this case was venued, lack of informed consent is considered a separate cause of action. Therefore, although the jury did not believe Dr. Joneson breached the standard of care, they were able to award the plaintiff damages solely based on their finding of lack of informed consent.

Essentially, the jury found Sam Joneson, D.C., as well as Downtown Chiropractic, not negligent and that he did not cause Lisa Coxe’s injury. However, the jury did find that Sam Joneson, D.C., and Downtown Chiropractic failed to obtain Lisa Coxe’s informed consent and that failure directly and proximately caused injury to Lisa Coxe.

As for damages, the jurors awarded $12,000 in compensatory damages for economic losses and $105,000 in noneconomic losses to Lisa Coxe. NCMIC’s legal expenses and fees to defend Dr. Joneson in this matter were more than $270,000.

What Can We Learn?

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

Informed Consent Can Make or Break a Case 

Most cases today include an allegation of failure to provide informed consent, and it was the centerpiece of this case. Although the jury found the doctor was not negligent for causing the patient’s injury, he was found negligent for failing to obtain her informed consent. Variations of informed consent requirements are substantial, so it is important to understand your state’s informed consent mandates. Your state licensing board is a good place to check for any guidance or regulations on this issue.

The Reasonable Person Standard May Apply

Whether the court considers what a “reasonable doctor” or a “reasonable patient” would do often makes a critical difference in the defense of a case. The higher standard is what a “reasonable patient” would do.

The Courtroom is Drama

Intangibles often play a greater role in the courtroom than the facts. Some intangibles are the perceived credibility of the doctor or the patient, possible empathy for the patient, the accuracy and completeness of the doctor’s records (patient and billing), possible culpability of others, and the attorneys’ expertise. Consequently, jury decisions are always unpredictable.

Deviations from Protocols Can Come into Play 

Although Dr. Joneson did not take X-rays as he normally would have, this was explainable due to the patient’s pregnancy.

Patient Records Must Be Maintained 

In this case, Dr. Joneson suspected a lumbar disc, based on examination and history. This supported the plaintiff’s contention that he failed to diagnose the cauda equina syndrome. If he would have documented that he was being conservative in his clinical approach to Lisa Coxe’s care, it may have helped in his defense.

Individual and Entity Coverages Are Essential 

In this case, General Hospital and RPA were dismissed on summary judgment, but Dr. Joneson and Downtown Chiropractic remained defendants.  Without adequate entity coverage, Dr. Joneson would have been personally responsible for the costs to defend his practice entity and any damages assessed against it.

Verdicts Over Policy Are Not Covered

This case had a verdict within the coverage limits of the insurance policy. Make sure you check your limits of coverage on an annual basis when you renew. Again, your state licensing board is a good place to check for any guidance or regulations on this issue (some have requirements).

Cases Can Take Time

It is not unusual for a malpractice case to span several years. It depends on the state, but the average duration of a claim is 24 to 36 months, and some continue for years longer. This is why it is essential to have a trusted malpractice insurance company supporting you and providing an expert defense on your behalf for as long as needed for the best possible outcome.  
 

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.


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.