Doctor sweeping image

The penalty for deceit is more severe than for disclosing an error.

Risk Management

The Problem with Sweeping Things under the Rug

Sally Kent worked as a chiropractic assistant for Kit Lambey, D.C., at Lambey Chiropractic Clinic from 1999 to 2000. At that time, she and her husband were friends and neighbors of Dr. Lambey and his wife.


Dr. Lambey offered his employees free chiropractic treatment, which Sally utilized. During her employment, Sally started to make inappropriate comments and advances toward Dr. Lambey, hoping he would reciprocate. Because of Sally’s inappropriate behavior and the dissension it created in the office, Dr. Lambey terminated her employment.

Ten years later, on April 5, 2010, Sally returned to Lambey Chiropractic Clinic seeking chiropractic care. Her chief complaint was back pain that had been present for the past three months. With some hesitation, Dr. Lambey agreed to treat Sally for her complaints. Dr. Lambey treated Sally nine times from April 5, 2010, through August 27, 2010, including a three-month gap in care between April and July.

Dr. Lambey would use two adjustment techniques at each visit. First, he would have Sally sit at the foot of the table, arms crossed across her chest. He would then guide her backward until she was lying on the table. The purpose of this maneuver was to address her thoracic spine. Then, he would position her in a side-lying position, on her right side with her left leg bent and her arms crossed. Dr. Lambey would perform two adjustments in this position to address Sally’s lumbar complaints.

Sally’s last treatment date with Dr. Lambey was on August 27, 2010. At this visit, Sally contended that the laying-down adjustment technique was ineffective; she experienced no release in her thoracic spine at all. As for the side-lying adjustment, Sally said she was already sore and tense and that the adjustment shot excruciating pain into her right leg. Dr. Lambey assisted Sally off the table and offered her electronic muscle stimulation and ice. However, Sally left the office stating her pain was too great for her to receive any additional treatment.

Patient Visits ED

Because her pain persisted, Sally presented to the emergency department of a local hospital later that day. The hospital’s records attributed Sally’s pain onset to a misstep she took while jogging two days earlier. The records mentioned that she had a chiropractic visit, but they contained no accusation or even hint that the chiropractic visit was the inciting event. Sally was released from the emergency department with a prescription for pain medicine, and she was instructed to follow up with her primary care physician.

When Sally saw her primary care physician, he referred her to Timothy North, M.D., a local orthopedic surgeon. Dr. North’s records reflected a new version of events. He wrote that the patient had said her low back pain began on Easter Sunday for which she received chiropractic treatment. However, 10 days prior to seeing Dr. North, Sally claimed she awoke with excruciating pain in her right buttock and leg. This pain was so severe she had to go to the emergency department. Sally told Dr. North that her pain was worse than when she had a cesarean section.

Dr. North ordered an MRI, which was scheduled for later that week. The MRI showed disc degeneration at L5-S1. It also revealed disc extrusion to the right at L5-S1, with caudal migration of the disc fragment displacing the S1 nerve root.

Surgery Performed

Dr. North recommended surgery, and he performed a right L5-S1 laminotomy and discectomy the next day. Sally’s post-op care didn’t go as planned—she received no relief for her leg pain.

Dr. North recommended a repeat MRI with contrast to assess whether a retained disc fragment was causing nerve root impingement. This MRI seemed to show a very small disc fragment or annular fragment just distal to the disc space on the right. Dr. North recommended a second surgery to explore removal of the suspected fragment. The second surgery was performed on September 27, 2010, but it was no more successful than the first surgery. Sally continued to complain of decreased sensation along the lateral border of the right foot and the lateral right calf, as well as a tingling sensation in her posterior right calf.

Dr. North then recommended physical therapy to Sally. When he saw her again in January 2011, Sally had been working out regularly. She was running up to four miles a day and lifting weights.

Lawsuit Pursued

Dr. Lambey received a letter dated August 13, 2011, from Sally’s attorney, putting Dr. Lambey on notice that Sally was considering legal action against him. Sally subsequently filed a lawsuit naming Dr. Lambey and Lambey Chiropractic Clinic as defendants. The suit claimed that Dr. Lambey’s treatment and subsequent lack of appropriate diagnosis caused her chronic right leg pain, loss of strength, and dysfunction.

NCMIC retained expert consultants to review Sally’s clinical records and imaging studies. They all believed that the plaintiff (Sally) had degenerative disc problems. It was their professional opinion that Dr. Lambey’s treatment did not cause the disc issue requiring two surgeries, though it possibly could have aggravated her pre-existing condition.

At the case onset, the NCMIC-retained defense attorney estimated that Dr. Lambey had a 70 percent chance of successfully defending this claim. He based this on the following:

  • The plaintiff’s past health history was complex.
  • She was unable to tell the same story twice.
  • The degenerative condition of the plaintiff’s spine pre-dated her treatment in August 2010.
  • Postings on the plaintiff’s social networking sites depicted her participating in activities she had testified she was unable to do, making her credibility questionable.

“Confidential Patient Notes” Questioned

At Dr. Lambey’s deposition, the plaintiff’s attorney questioned Dr. Lambey about his recordkeeping. This included his use of travel cards and typewritten “confidential patient notes,” the practice’s recent adoption of an EHR system, and his office’s staffing and patient flow.

The plaintiff’s attorney seemed most quizzical about the typewritten notes, and he asked Dr. Lambey how and when he prepared them. Dr. Lambey explained that using a software program on his personal computer, he would type the notes either on the day of the patient visit or a day or two later. Dr. Lambey mentioned these notes were not accessible to his office staff. However, the plaintiff’s attorney remained skeptical about their validity, origin and use.

Within weeks of Dr. Lambey’s deposition, Sally Kent amended her complaint to also allege that Dr. Lambey willfully created, altered, fabricated and/or destroyed the confidential patient notes once a lawsuit was probable. The amended complaint further alleged that these actions were malicious and disrupted the plaintiff’s ability to prove the malpractice claim, making punitive damages warranted.

According to Dr. Lambey, the laptop computer with the confidential patient notes was getting old, so he wanted to update the equipment. Therefore, he had all information from the laptop transferred to a new computer and onto an external hard drive (EHD).

Computer Forensic Technician Investigates

Dr. Lambey then testified that he destroyed the old laptop and disposed of it in a dumpster. This was after he had received the August 13, 2011, letter notifying him of the lawsuit. To defend Dr. Lambey against the spoliation of evidence claim and request for punitive damages, the defense team retained a computer forensic technician to inspect the external hard drive of Dr. Lambey’s computer. Dr. Lambey confirmed that he began using the external hard drive in 2011, which was around the time he acquired an EHR system. During that time, it was clear that the data, at minimum, was backed up in 2010 because it contained the 2010 confidential patient notes.

The computer technician quickly determined the external hard drive had only 80 gigabytes (GB) of live data out of 3,000 GB capacity. The technician found it suspicious that an external hard drive used for three years would only contain 80 GB of live data out of a total storage capacity of 3,000 GB. This was particularly problematic to the case because Dr. Lambey had used the computer for both personal and business purposes.

The technician again examined the external hard drive to determine the data’s location on the drive. In looking at the display, he could see gaps in the storage, which meant the EHD held more than the 80 live GB of data at some point. Seeing that data had been deleted, the technician took the EHD to his office to conduct a more full and complete search.

The initial findings of this forensic review suggested:

  • The EHD was first utilized in June 2012—nearly one year after Dr. Lambey indicated he began using it.
  • The EHD contained the confidential patient notes for the plaintiff for April through August 2010. The document properties indicated that the document had 10 revisions, which corresponded with it being opened and closed at each of the nine office visits described in the document plus a tenth time when the document was downloaded and produced to the plaintiff (when she requested a copy of her records in July 2011).
  • None of Sally Kent’s documents came from the area of the hard drive where Dr. Lambey had deleted files.
  • The hard drive included two personal pictures of Sally Kent, one downloaded in June 2010 and the other in July 2009. It appeared that these pictures were downloaded between 3:00 and 4:00 a.m.

Forensic Findings Raise Questions

When defense counsel asked Dr. Lambey why he had Sally Kent’s pictures on his EHD, the doctor responded that he had copied all photos from his family computer when he was going through a divorce. His wife often went on Facebook to copy pictures of neighbors, friends and family onto the computer. While defense counsel found this explanation plausible, he believed it created another distraction in the case.

Further forensic review revealed the confidential patient notes on the plaintiff were in an active editing phase between 10:02 and 10:55 p.m., July 14, 2011. This was the eve before he produced them to the plaintiff and could be construed as evidence that Dr. Lambey had rewritten and edited the notes.

The technician also found all of the plaintiff’s records had been deleted from Dr. Lambey’s destroyed laptop, except for two Facebook pictures and six letters Dr. Lambey had written to the plaintiff’s attorney. Defense counsel was fearful that these findings would be sufficient to keep the claim of spoliation/destruction of evidence alive.

In spite of these forensic findings, Dr. Lambey continued to attest that the reason he destroyed his 2010 laptop was because it was failing and he wanted to upgrade to an EHR system. Dr. Lambey maintained he was a computer novice—he was naïve when it came to issues of document destruction. He was simply trying to improve the quality of his practice when he destroyed the laptop in September 2011 (after he was notified about the potential suit). In his defense, numerous briefs were filed and representations made to the court and counsel as to Dr. Lambey’s position. These documents argued vigorously that the spoliation/destruction claims should be dismissed.

Bombshell Development

Two days prior to the final pretrial conference when the findings of NCMIC’s retained computer forensic technician would have to be disclosed to the plaintiff, defense counsel met again. All the issues regarding Dr. Lambey’s records on the plaintiff were discussed. On the morning before the final pretrial conference, defense counsel received an email from Dr. Lambey. This email stated that Dr. Lambey had gone into his office storage room and found the laptop he thought he had gotten rid of. He claimed that because he had multiple laptops, he was confused about which one was destroyed. Upon opening up the laptop, he saw it included Sally’s notes, and they were identical to what was found in the EHD examination. In this email, Dr. Lambey contended that this proved that he didn’t destroy the evidence like he thought he had.

Defense counsel immediately brought this bombshell development to the attention of the NCMIC claims representative. He explained that the judge would have to be notified of this development at the pretrial conference, and he was concerned that it would not only negatively impact Dr. Lambey’s credibility but also that of the defense team. It could very well lead to an award of punitive damages, which was excluded from Dr. Lambey’s coverage. What’s more, the development could generate a compensatory award if it raised suspicion among jurors that something else was going on.

Therefore, with Dr. Lambey’s consent, defense counsel contacted the plaintiff’s counsel the day before the final pretrial conference to make a counter offer in response to a prior settlement demand. The claim settled for roughly one half of the plaintiff’s initial settlement demand.

Legal expenses and fees to defend Dr. Lambey were $102,270. 

What Can We Learn?

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

No substitute for the truth

Full and complete disclosure is not only mandated during any litigation, but the penalty for deceit is more severe than the consequences of disclosing the truth. In all cases, there is attorney / client confidentiality that exists in the relationship. Therefore, Dr. Lambey should have disclosed the obvious deception upfront. This would have allowed his attorneys to determine the best approach rather than to be blindsided by last-minute revelations.  Further, it compelled an otherwise defensible case to be settled.

Punitive damages

Not always considered in malpractice cases, punitive damages—damages intended to deter similar conduct—are usually imposed when there is “willful or wanton” conduct.  The judge could find the conduct of Dr. Lambey rose to that level. Punitive damages are NOT covered by malpractice insurance and are the responsibility of the doctor. Depending on the state, punitive awards can be many times the amount of the award to send a message to the defendant.

Spoliation of evidence

It is often said that bad records can be defended but altered records cannot. Spoliation of evidence is a very serious matter and is not taken lightly by courts. Not producing the evidence is far more harmful than dealing with the consequences of what is in the documents. In some states, it is a felony to alter or destroy records.

Standard of care

The standard of care in this case, was not Dr. Lambey’s clinical approach but instead his documentation because it caused the plaintiff to question the veracity of Dr. Lambey’s explanation. The fact that he typed the separate reports and his staff didn’t have access to them would not be appropriate standard of care and became very damaging to his case.

Technology talks

What you put on your computer can be retrieved by experts even when you think you erased the information. Fortunately, in this case, Sally Kent was also less than cautious because she made claims about her physical prowess on social media, which was in contrast to her legal claim of a disability

No good deed goes unpunished

If you previously terminated a patient for a valid reason, remember that, and do not treat that patient in the future. Generally, history will repeat itself in some fashion.

Believability is critical

Most malpractice cases are rather straightforward. The patient alleges an injury or a violation of a standard of care. The doctor then counters with experts to support the appropriateness of his or her care and processes. In contrast, this case became less about the CARE provided and more about the CREDIBILITY of the parties involved. Juries do not like deceitful and manipulative behavior and are likely to punish it. Circumstantial issues became the focus of this case due to the doctor’s lack of honest and full disclosure. This hampered the defense and potentially changed the outcome of what could have been a very defensible case. In addition, it likely created future malpractice insurability issues for the doctor.
 

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.