Defense Team and Experts Support the Doctor After Specialized Therapy

posted in Risk Management on March 13, 2017

Joe Lynch presented to a medical practice on April 2, 2010, with complaints of “unbearable, constant, sharp, stabbing and throbbing” posterior pain that radiated to his upper back, arms and wrists. He also had complaints of neck stiffness.

The pain began two days before the visit, but Joe couldn’t recall any precipitating event or injury. He was diagnosed with neck pain, given a prescription and referred for a cervical spine X-ray.

Joe returned to the medical practice on April 5 with complaints of “severe, constant, sharp and throbbing” neck pain that radiated to the upper back, intrascapular area, bilateral subscapular region, shoulders and arms with associated neck stiffness. His X-ray showed spondylosis at C5-6 with foraminal osteophyte production and bilateral narrowing.

Joe was again diagnosed with neck pain and prescribed a different prescription. Joe returned to the medical practice on April 7. Joe had undergone some physical therapy treatment but was unable to continue due to severe pain. As a result, the treating physician prescribed a stronger pain medication and ordered an MRI of Joe’s cervical spine.

On April 9, Joe was seen again at the medical practice, this time by his primary care physician, Julia Rose, M.D. He continued to report stabbing pain that radiated into his upper back, as well as neck stiffness.

Dr. Rose’s musculoskeletal exam revealed decreased range of motion, pain and crepitus with rotation of the cervical spine, and tenderness, spasm and inflammation of the left trap and paraspinal muscle of the cervical spine. Because Joe recently had stents placed due to a cardiac condition, it was potentially contraindicated to proceed with the MRI. Instead, a CT scan was ordered, which revealed central disc herniation, osteophyte complex at C2–3, bilateral joint hypertrophy at C5–7, mild bilateral neural foraminal stenosis at C5–6 and reversal of the normal cervical curvature.

Dr. Rose recommended physical therapy and chiropractic care. She referred Joe to Ron Mayne, D.C., and prescribed five new medications for his pain and spasms.

Patient Receives Chiropractic Care

Joe presented to Dr. Mayne on April 12, 2010. In spite of the medications, Joe complained of neck pain, neck stiffness and pain radiating into his left shoulder and upper arm. In his initial examination, Dr. Mayne noted that Joe had dull, throbbing and shooting pain in the cervical spine that favored the left side and radiated into the left posterior shoulder and upper arm. He exhibited diminished or decreased pinprick on the left over the C5 and C6 dermatomes, normal coordination and fine motor skills, as well as brisk and symmetrical reflexes.

Dr. Mayne’s examination also demonstrated a positive Jackson compression maneuver on the left. Palpation revealed subluxation of the cervical and thoracic spine and the left shoulder. It also demonstrated tenderness of the cervical and thoracic paraspinal muscles and the trapezius and posterior shoulder musculature.

Dr. Mayne reviewed the CT scan report, discussed it with Dr. Rose and ordered an EMG. His working diagnosis was cervicobrachial syndrome with cervical, thoracic, lumbar, sacral and upper extremity dysfunctions. He listed Joe’s prognosis as guarded and recommended chiropractic treatment three to four times per week with a reevaluation at four to six weeks.

Decompression Therapy Begins

Dr. Mayne began chiropractic treatment that initially involved manipulation of the full spine and shoulder, electric muscle stimulation and neuromuscular rehabilitation. On April 15, 2010, Dr. Mayne learned the results of the EMG. It revealed bilateral C5–6 radiculopathy and carpal tunnel syndrome. Based on these findings, Dr. Mayne added Intervertebral Differential Dynamics (IDD) spinal decompression to Joe’s treatment plan, using a maximum weight of 25 pounds. Joe improved from this treatment.

On April 22, 2010, Dr. Mayne reduced the decompression weight by two pounds after Joe had a muscle spasm. He also told Joe to apply ice. Joe had worsening pain and another spasm on April 29, 2010, but then exhibited constant and continued improvement until May 24, 2010, at which point his pain significantly increased. When the pain persisted, Dr. Mayne referred Joe back to Dr. Rose for a May 26 consultation.

After determining an MRI was not contraindicated, Dr. Rose ordered an MRI of Joe’s cervical spine in hopes of definitively diagnosing his condition. The MRI performed on May 28, 2010, revealed a soft tissue mass extruding from C6–C7, resulting in spinal cord compression and severe central spinal canal stenosis. The radiologist recommended an MRI with contrast of the cervical spine, which Dr. Rose ordered, and it was completed on June 3, 2010. This study demonstrated findings most compatible with a large disc extrusion arising from the C6–C7 disc with associated cranial migration and severe stenosis of the spinal canal at the C5–C6 and C6–C7 levels. The study also revealed an ill-defined enhancement within the left lateral recess at the C5 vertebral body and at the C5–C6 intervertebral disc level.

Joe then came under the care of a neurosurgeon on June 9, 2010, who found him to be a candidate for surgical intervention. Joe underwent an anterior cervical discectomy at C5–C6 and C6–C7, a corpectomy at C6, a fibular strut allograft fusion of C5 through C7, anterior plating at C5 through C7 and placement of a Gardner-Wells tong. The post-operative diagnosis was a herniated, extruded disc with severe cord compression at C5–C6 and C6–C7, with herniation likely originating from C6–C7.
 

Lawsuit Ensues

Approximately two years later, on June 7, 2012, a lawsuit was filed, which named Ron Mayne, D.C., and Mayne Family Chiropractic, Inc. as defendants. Joe Lynch (now the plaintiff) claimed Dr. Mayne was negligent for treating him with decompression therapy, considering his presenting symptoms. The suit alleged that the decompression treatment caused or contributed to Joe Lynch’s herniations, spinal cord compression and resulting surgery. The plaintiff also alleged that Mayne Family Chiropractic, Inc. was vicariously liable for the acts and omissions of Dr. Mayne and his employees.
 
Dr. Mayne notified NCMIC of the claim, and NCMIC promptly retained counsel to protect the interests of Dr. Mayne and his practice, which shared his $1 million policy limits.
 

Discovery Testimony

During discovery, Joe Lynch testified that he experienced relief from Dr. Mayne’s light chiropractic manipulations, as well as from massage and ice packs. Although the plaintiff admitted he was heavily sedated with pain medications during that time, he claimed his condition worsened in the first week of decompression therapy. Joe contended that his neck pain began to radiate down his arms, he started having problems with balance and he became incontinent of bowel and bladder. However, the plaintiff admitted he didn’t tell Dr. Mayne about these complaints.
 
The plaintiff’s chiropractic expert consultant, Lois Jones, D.C., opined that the disc decompression therapy was absolutely contraindicated in this case. She didn’t believe that there was an identified compression to decompress, and if there was a neurologic compromise, it was not sufficiently identified to justify the decompression treatment. However, she did not use IDD in her clinical practice.
 
Dr. Jones further alleged that decompression therapy caused the C5–C6 disc herniation. Additionally, Dr. Jones contended that Dr. Mayne deviated from acceptable chiropractic standards when he treated the plaintiff without obtaining his informed consent.
 
The plaintiff’s neurosurgical expert witness, Benny Hayward, M.D., testified that if Joe Lynch was in sufficient pain to warrant the prescribed pain medication, he should have been immediately evaluated for surgery. He also stated that a patient with a normal neurologic spinal exam shouldn’t receive the pain medication prescribed.
 
Dr. Hayward took the position that Dr. Rose and Dr. Mayne both documented normal neurologic examinations on all visits without noting any sign of spinal cord compression or weakness. Even though Joe was taking narcotic pain medication and undergoing chiropractic treatment, his pain worsened dramatically, he developed weakness and he was unable to ambulate without assistance. This was due to a large disc herniation and spinal cord compression that Dr. Hayward alleged was caused by chiropractic manipulations and the IDD disc decompression.
 
Furthermore, Dr. Hayward opined that it was a deviation of the standard of care to place a patient on narcotic pain medication for spinal complaints. He also stated it was a contraindication to treat a patient with spinal complaints and taking narcotic pain medication, without obtaining an MRI study.
 

Defense Experts Weigh in

The chiropractic expert for the defense, Michelle Smith, D.C., was retained to provide her professional opinion. She explained that the case reflected a common scenario in which patients who have degenerative disc disease from the wear and tear of life develop symptoms. These symptoms often can be tempered by medication, manipulation, physical therapy and injections. However, a small number of patients require surgery.
 
Dr. Smith was of the opinion that Dr. Mayne’s examination of Joe was well within chiropractic standards because it contained the requisite elements of neurologic and orthopedic examination procedures to formulate a working differential diagnosis based on Joe’s presentation. Dr. Smith explained that Dr. Mayne’s treatment consisted of spinal and extremity manipulations, analgesic and spasm-relieving physical therapy modality adjuncts, as well as computerized nonsurgical spinal decompression.
 
Dr. Smith described how decompression is intended to reduce intradiscal pressure, increase the central spinal canal diameter and increase the size of the intervertebral foramen. Essentially, the goal of decompression is to remove pressure from the spinal cord and exiting nerve roots. Therefore, because of the diagnosis of foraminal stenosis and compression at the C5–C6 level, Dr. Smith believed that Joe Lynch was a candidate for IDD therapy. In all, it was Dr. Smith’s professional opinion that Dr. Mayne’s diagnostic and therapeutic actions complied with the chiropractic standard of care.
 
The NCMIC defense team also retained a seasoned neurosurgeon with decades of experience, Richard Walters, M.D., to serve as an expert consultant to review the plaintiff experts’ testimony. Dr. Walters stated that Drs. Jones and Hayward’s opinions hinged on the belief that the decompression therapy provided by Dr. Mayne caused Joe’s herniation and need for surgery. Dr. Jones believed there was no “identified compression to be decompressed,” and Dr. Hayward believed that decompression applies force on the spine that could lead to herniation and compression. Dr. Walters disagreed with both of these beliefs.
 
Dr. Walters further testified that Dr. Jones missed that Joe’s spine was already compressed based on Dr. Mayne’s positive exam findings. He also testified that Dr. Smith overlooked the fact that decompression therapy is meant to relieve pressure and force on the spine, not apply it. Furthermore, he noted that the spinal decompression therapy was set at a maximum level of 25 pounds, which was a weight well below the FDA standard.
 
In short, it was Dr. Walters’ professional opinion that Joe was a candidate for Dr. Mayne’s conservative chiropractic treatment and that Joe responded to that treatment but ultimately required surgery to remedy his underlying problem. Dr. Walters found nothing to support the contention that Dr. Mayne’s care, including the IDD therapy, caused the C5–C7 herniation.
 

Long-Term Conditions Lead to Settlement Demand

After surgery, Joe Lynch continued to complain of pain in his arm that waxed and waned. He had to take pain medicine regularly, as well as take medication for balance issues on an infrequent basis. Joe testified that he was no longer able to do yardwork or housework and could no longer ride a motorcycle.
 
Joe Lynch previously worked 36 to 48 hours per week maintaining machinery that cleaned natural gas from landfills, but he missed five months of work as a result of his cervical injury. He claimed $35,000 in past wage losses and roughly $73,000 in past medical expenses. He estimated his future medical expenses to be approximately $25,000.
 
The plaintiff’s attorney made a settlement demand of $375,000 with the message that he did not have authority to move from that figure. Dr. Mayne took the position that he did nothing wrong in his care and he chose not to give his consent to settle the case. As a result, the case proceeded to trial.
 

The Trial

Based on the plaintiff’s attorney’s opening statement, it was clear he would argue that there was no logical explanation for Joe’s herniation other than Dr. Mayne’s IDD treatments. The NCMIC-retained defense counsel countered by highlighting how the defense experts would show that the herniation existed before Dr. Mayne’s treatments, didn’t respond to conservative therapy and progressed to the point that it required surgery.
 
Testimony began with the plaintiff testifying that he never exhibited signs of a neck injury before Dr. Mayne’s treatment—his excruciating neck pain began after he received the IDD therapy. He testified that he lived with daily pain; he found it difficult to even get out of bed each day. The plaintiff’s wife testified that since her husband’s injury, he had less stamina, his gait was off and he was unable to perform many of the physical activities he did before.

On cross-examination, the plaintiff was questioned about two neck injuries he previously reported to the medical practice in 1996 and 2003. Defense counsel pointed out that the records showed that the plaintiff complained of excruciating neck pain that radiated to his arms and wrists many times before Dr. Mayne’s treatment. This established signs of a herniation in progress. Defense counsel didn’t believe the plaintiff presented well because his testimony conflicted with most of the medical records.

The plaintiff’s neurosurgical expert, Dr. Hayward, and his chiropractic expert, Dr. Jones, testified next. The plaintiff’s attorney focused his questions on Joe Lynch’s damages. Dr. Hayward testified that when he examined the plaintiff, he found radiating pain and weakness in both arms, an abnormal gait and diminished residual deep tendon reflexes. His diagnosis was acute neck pain, bilateral radiculopathy, aggravation of a degenerative condition, a herniated disc and diminished sensation in his upper and lower extremities. He believed the plaintiff’s condition was permanent.

On cross-examination, Dr. Hayward admitted that the plaintiff’s complaints of pain during his exam were subjective, and he observed no wincing, groaning or grimacing when he examined the patient. Defense counsel pointed out that Dr. Hayward failed to review pertinent portions of the plaintiff’s records, including the actual diagnostic films and the post-operative records that discussed the plaintiff’s successful healing process. Defense counsel did not believe that Dr. Hayward presented well on cross-examination—he appeared disorganized and uninformed.


Liability and Causation

The plaintiff’s attorney attempted to establish liability and causation during chiropractic expert Dr. Lois Jones’ testimony. This expert criticized both Dr. Mayne’s treatment and his billing records. She testified that Dr. Mayne deviated from the standards of chiropractic care when he treated with decompression therapy that was contraindicated by the patient’s presentation. She testified that the decompression treatment on May 24, 2010, caused the plaintiff’s herniation, which required subsequent surgery.
 
On cross-examination by defense counsel, Dr. Jones continually attempted to avoid answering questions directly. The judge had to instruct Dr. Jones repeatedly to answer defense counsel’s questions. In short, Dr. Jones presented as defensive and arrogant, and her inexperience with decompression therapy was exposed.
 
Another highlight was surveillance video of the plaintiff. The video showed the plaintiff playing with his children, standing for long periods of time, and running, walking and bending without a problem, which contradicted the testimony about the plaintiff’s damages.
 
When the defendant, Dr. Mayne, testified, he came across as confident,caring and knowledgeable about the practice of chiropractic. He told the jury how he examines each patient, discusses the treatment plan based on the exam findings, uses a model of the spine to illustrate findings, and discusses the risks and benefits of each modality. He explained how the decompression machine works and why the plaintiff was a candidate for it. The neurosurgical expert for the defense, Dr. Richard Walters, also testified. He shared that he had treated more than 4,000 cases involving cervical herniations, 900 of which required surgery. Out of these, only three herniations were caused by trauma.
 
Dr. Walters explained that most cervical herniations develop from activities of daily life and are typically treated conservatively. On occasion, conservative therapy will not work and surgery will be required. He also explained that patients with narrow spinal canals are more likely to require surgery to treat the herniations, and this was the case with Joe Lynch.
 
The next day, the defense chiropractic expert, Dr. Smith, effectively explained how a decompression machine works, why the plaintiff was a candidate for it, and how the machine could not cause a herniation as it decompresses discs (as opposed to compressing them). On cross-examination, the plaintiff’s counsel grilled Dr. Smith on Dr. Mayne’s billing and treatment records, but she credibly responded to the attack based on her practical experience.
 
After the defense rested its case, the jury was charged with determining:
  • Did the plaintiff prove that Dr. Mayne deviated from the accepted standards of chiropractic care in his use of the decompression machine?
  • Did the plaintiff prove that Dr. Mayne’s deviation was a proximate cause of his cervical disc herniation?
If the answers to both questions were “yes,” the jury would then need to determine how much money would fairly and reasonably compensate the plaintiff for his wage losses, medical expenses, pain and suffering, and future medical expenses. In addition, the jury would need to determine any compensation to the plaintiff’s wife.
 
Following closing arguments, the jury began deliberations. During this time, the plaintiff’s counsel asked defense counsel whether the defense’s settlement position had changed. After conferring with Dr. Mayne, the defense team responded that it had not.
 
After five hours of deliberation, the jury returned with a defense verdict. There were no appealable issues. NCMIC’s legal expenses to defend this claim were more than $285,000.
 
 
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.
 

This article appeared in NCMIC’s Examiner magazine, a publication for NCMIC policyholders with compelling case studies and practical tips for avoiding a malpractice allegation. View the current issue of Examiner for more case studies and articles.

The information on this page 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.

What Can We Learn?

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

Believability of Experts

A jury will assess the credibility of all witnesses, including experts. Juries will often assess an expert witness’s expertise and experience in making this determination. In this case, the defense experts had the edge both in clinical expertise and in years of experience.

Credibility of Plaintiffs and Defendants

Juries are sensitive to what they perceive as deceptive behavior. In this case, the surveillance footage of Joe Lynch called into question his claims of being physically damaged.

In addition, the patient has a responsibility to disclose vital information that would aid, alter, modify or reverse a course of treatment. In this case, Joe Lynch’s failure to tell his doctor that he was losing control of his bowel and bladder hurt his credibility.

Informed Consent Process

Informed consent is becoming an issue in most litigated cases. In this case, Dr. Mayne testified that even though there was no informed consent form on file, it was his process to discuss the risk/benefit of care with each patient.

If Dr. Mayne would have memorialized the discussion in the chart, informed consent would have been a nonissue. Informed consent is often difficult to defend in court when there is no evidence it took place.

Evaluation and Referral

In terms of the patient’s evaluation and referral, Dr. Mayne did things right. The patient was sent to Dr. Mayne by a medical physician as a referral, which meant Joe Lynch was examined and evaluated by someone prior to Dr. Mayne.

Dr. Mayne performed an independent and proper evaluation with orthopedic and neurological evaluation, reviewed the CT analysis, ordered an indicated test (EMG) and properly altered treatment based on new evidence. Additionally, Dr. Mayne appropriately referred the patient after a conservative trial of care.

Entity Coverage

This case highlights the wide legal net cast when litigation is initiated. Dr. Mayne had his corporation covered with entity coverage. NCMIC offers a shared limits of liability entity coverage option at no additional premium.

Doctors who are owners of a chiropractic entity (e.g., an LLC, partnership or corporation) can share their limits of liability with their practice entity at no additional charge. (Separate limits are also available for an additional premium.)

Jennifer Boyd Herlihy is a 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.

Informed Consent and NCMIC

Most malpractice cases today are filed with an allegation that the doctor did not obtain a patient’s informed consent or that the doctor provided informed consent incorrectly.

While NCMIC will defend you whether or not you choose to use an informed consent process in your practice, you are advised to consult with your state association or licensing board to ensure you meet your state’s informed consent requirements (if any).

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