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Risk Management

Patient's True Health Revealed

About 15 years ago, Jean Jones sought chiropractic treatment from Jack Chin, DC, for sciatic nerve pain during pregnancy. After delivery, Ms. Jones saw Dr. Chin four times for lingering back pain before discontinuing chiropractic care.


Three years after discontinuing care, Ms. Jones experienced sharp shoulder pain after turning her head. When the pain didn’t subside, Ms. Jones went to a nearby hospital emergency room. Ms. Jones was given a cortisone shot, released with muscle relaxers and instructed to take ibuprofen.

The following week, Ms. Jones returned to see Dr. Chin for what she believed was a pinched nerve. After reviewing the hospital’s films, Dr. Chin had Ms. Jones lie supine on the table and adjusted her at C2–C3 and C3–C4 without incident.

Then, Dr. Chin took her neck and applied forceful rotation in both directions, resulting in what Ms. Jones said was a painful popping in her neck. When Ms. Jones got to the front desk, she felt dizzy, and the front desk assistant told her to call back the next day if she didn’t feel better.

As her mother was driving her home, Ms. Jones developed numbness on her left side and was having trouble speaking. Ms. Jones had to be assisted out of the van and into the house. By this point, her entire left side was going numb, she could not swallow, she couldn’t speak clearly, and she felt dizzy and nauseous.

Doctor Thinks the Patient Has Vertigo

Ms. Jones’ mother called Dr. Chin’s office and told him about her daughter’s many symptoms. Dr. Chin said she had vertigo, and instead of advising immediate medical attention, he suggested that her daughter take some Dramamine.

When Dr. Chin learned they didn’t have any Dramamine, he offered to bring the medicine to the house. Once there, Dr. Chin attempted to force the medicine down Ms. Jones’ throat since she was having difficulty swallowing. 

Ms. Jones’ family asked if she should go to the hospital, and Dr. Chin responded that she’d be better off just resting at home. Dr. Chin told Mr. Jones, the patient’s husband, that he would follow up in the morning.

Not satisfied with these developments, Mr. Jones called an emergency room nurse at the hospital who advised getting his wife to the hospital immediately. At that time, Ms. Jones was throwing up and could barely move. She had to be assisted into the car. She couldn’t focus and had to keep her eyes closed to keep the room from “spinning.”

When Ms. Jones presented to the emergency room, she was unable to open her eyes due to dizziness, she was continually gagging and had difficulty swallowing, and she was experiencing headache and neck pain. She was admitted to the hospital. 

The history and physical taken by the hospital physician indicated that Ms. Jones had no visual disturbance, but she had residual tingling in the left side of her body. The CT and MRI scans were unremarkable. The physician’s impression was intractable nausea and vomiting and vertiginous symptoms.

Four days after being admitted, Ms. Jones was transferred to another hospital for further neurological evaluation. She was admitted with numbness on the left side of her face, left arm and leg. She presented with what the hospital staff thought was a post-cervical manipulation brainstem insult. 

Findings Point to a Probable Dissection

A cerebral arteriogram showed findings suspicious of a dissection involving the distal left vertebral artery extending into the region of the basilar artery. There was no evidence of aneurysm formation and no significant arterial occlusion.

An MRI of the brain revealed abnormal focus of signal intensity involving the left aspect of the brainstem with areas of increased T1 signal intensity. The most likely consideration was a small area of acute infarction involving the brainstem just above the level of cerviocomedullary junction on the left. There was also abnormal adjacent signal intensity within the left vertebral artery flow void.

Three days after the vertebral artery dissection diagnosis, Ms. Jones was discharged to a rehabilitation center to receive physical therapy. The orders included inpatient (and later outpatient) occupational therapy and physical therapy. 

Dr. Chin subsequently received a letter from an attorney stating a malpractice claim was being filed against him. Dr. Chin notified NCMIC, and a claims representative requested that the opposing attorney provide all appropriate documents and information. 

Another three months passed before the opposing counsel provided NCMIC with the information—approximately 1,500 pages of documents relating to his client’s care and treatment. This attorney also produced a report by a DC consultant that contended:

  • Dr. Chin’s negligent treatment caused Ms. Jones to suffer a dissection of the left vertebral artery with left brain stem insult
  • Dr. Chin failed to provide a clinical basis for the treatment of Ms. Jones 
  • Dr. Chin should have obtained Ms. Jones’ informed consent

Experts Review Volumes of Records and Studies

NCMIC retained an attorney to assist in coordinating the expert reviews of the records and imaging studies. Additionally, the company retained two DCs to assess the case. 

These DC consultants were critical of Dr. Chin for not conducting a thorough history, for failing to conduct vascular compromise tests, for failing to obtain the patient’s informed consent, and for not keeping adequate and complete records.

The consultants pointed out another major potential problem in the case—Dr. Chin kept a diary, which summarized his perceptions of the events and treatment of Ms. Jones. This diary:

  • Showed Dr. Chin to be unaware of the possibility of a stroke, despite Ms. Jones’ classic symptoms of nausea, dizziness, left-sided numbness, inability to swallow and pain
  • Dr. Chin never referred Ms. Jones for treatment when her symptoms progressed
  • Was verbose and appeared to have been written after the fact—like a doctor trying to cover his tracks

Ms. Jones’ attorney made it known he wanted to explore a settlement. Before doing so, the NCMIC defense team asked to interview Ms. Jones. At this interview, Ms. Jones contended:

  • Her entire family required counseling to cope with and accept her current physical, psychological and cognitive limitations
  • Her right hand was numb, and she’s right-hand dominant
  • Her right side and right extremities felt like they were burning or being scratched by sandpaper
  • Her left side was so weak that she noticeably favored it when walking and standing
  • She couldn’t see out of her left eye when stressed or tired, she would experience double or blurred vision, and she had& trouble reading
  • She was hypersensitive to noise and visual stimuli. When overloaded with auditory or visual stimuli, she would become dizzy and nauseous
  • She grew weak and experienced fatigue much more often than she did before

Shortly after this interview, opposing counsel made a settlement demand of $1 million, which was Dr. Chin’s policy limit. If the demand was not accepted by year end, Ms. Jones would proceed with litigation.

Nonetheless, before this time elapsed, Dr. Chin was served with a lawsuit. Opposing counsel told the NCMIC-retained defense attorney that he had to file suit because the statute of limitations was approaching. However, he was still amenable to settling out of court.

Strategies Initiated by Defense Team

NCMIC retained a neurologist to review the records and imaging studies. The neurologist was critical of Dr. Chin’s lack of documentation and for not obtaining Ms. Jones’ informed consent. He estimated a 50-to-80-percent likelihood that Dr. Chin’s manipulation caused Ms. Jones’ stroke.

The NCMIC defense team also reviewed Ms. Jones’ social media activity before her deposition. The defense team wanted to assess whether Ms. Jones was embellishing the severity of her complaints.

Once her deposition was taken, Ms. Jones’ attorney approached the NCMIC-assigned defense attorney and asked if mediation was a possibility—though he stressed his client would not accept much less than $1 million. In consultation with the defense team, Dr. Chin agreed to mediation. 

During mediation, Ms. Jones stressed her loss of wages and medical expenses would dramatically exceed Dr. Chin’s policy limits. However, as a compromise, she would discount her claim and accept $950,000 but “not a penny less.” 

At this time, the NCMIC defense team invited opposing counsel to view screenshots and video captures of Ms. Jones’ social media activity. This was set up to provide a side-by-side comparison of Ms. Jones’ testimony at the deposition with her social media activity.

Words cannot describe the impact these videos and images had on Ms. Jones’ attorney. His face turned beet red, and he tried to claim it didn’t hurt his case. The mediator immediately retorted that if he were a jury member he would be hard pressed to award her anything close to the settlement amount demanded.

Settlement Offer Made

At the same time, the defense team realized that Dr. Chin would be difficult to successfully defend for a number of reasons. These included Ms. Jones’ significant medical expenses and the less-than-favorable consultant opinions. So, with Dr. Chin’s written consent, NCMIC made a one-time settlement offer of $150,000. 

The mediator agreed that the amount was reasonable and that Ms. Jones should seriously consider the offer. Though initially reluctant to accept the offer, Ms. Jones and her attorney came to the realization that obtaining a higher award in court was unlikely, especially given her contradictory social media activity. As a result, they agreed to the $150,000 settlement. NCMIC spent more than $53,000 to defend Dr. Chin in this case.

Plaintiff's Responses to Deposition and What Social Media Revealed

Responses

Social Media

QUESTION:
Do you find it difficult to go up steps and balance yourself? 

ANSWER:
Yes, extremely difficult.

Facebook video posted by Ms. Jones shows her performing a vigorous step aerobics class.

QUESTION:
Do you find it difficult to bear weight or balance on your left leg without your right leg’s support? 

ANSWER:
Yes, I need both legs to support me.

This same Facebook video showed Ms. Jones with her hands on hips, kicking one leg in front of her while balancing on the other. She then switched sides to kick the other leg.

QUESTION:
Would it be difficult for you to perform multiple actions with your body on a routine basis?  

ANSWER: 
It would.

Facebook video captured Ms. Jones doing an upper extremity workout with light weights while at the step aerobics class.

QUESTION:
Can you raise your left arm above your head? 

ANSWER: 
I still have weakness in my left hand and arm that makes it difficult to raise my hand above my head.

Instagram selfie showed Ms. Jones with her left arm over her head lifting a 5-lb. weight

QUESTION:
Can you walk normally? 

ANSWER: 
I run into things and tend to move toward the left.

Instagram video posted by one of Ms. Jones’ children shows her walking into a shopping mall—nothing noticeably wrong with her ambulation.

QUESTION:
Can you think of other limitations that would prohibit you from working? 

ANSWER: 
I would need to work in a neighboring community, and I don’t think it would be good for me to drive.

Facebook video posted by Ms. Jones’ son showed her driving her van on a busy four-lane highway

What Can We Learn?

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

Heed the Obvious

A doctor’s credibility would be immediately lost if unaware of the fundamental signs of an impending CVA, and Dr. Chin clearly fit that category. 

Consistency Is Important

In this case, Dr. Chin did not keep precise and accurate office records, yet he expected a jury to believe his extensive home diary of events was factual. 

Informed Consent Is a Reality

In today’s litigious world, obtaining written informed consent is the best practice. It’s a significant risk management tool and one of the most powerful patient discussions a doctor can have. 

Evidence Tells the Tale

With social media, there are very few secrets. In this case, Ms. Jones’ own posts— and those of her children—revealed her poor health claims were exaggerated.  

Defense Team Expertise Is Essential

It is critically important to have an experienced legal and claims team at your side, especially in a challenging case like this one. 

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.