Obvious clinical signs missed. Bogus informed consent process. Failure to act when the patient's health depended on it. What more could go wrong to sour this DC's case?
Posted in Case Studies on Wednesday, November 13, 2024
Jim Hoss, a 39-year-old salesman for a bottled water distributor, visited his employer’s staff MD complaining of a history of neck problems as well as new pain radiating into his left shoulder and the back of the arm that began after a recent delivery. The doctor’s working diagnosis was cervical disc disease, cervical strain and sprain. After 11 more appointments over the course of about six months, Jim was discharged and said to be “fine.”
Several months later, Jim kicked a flat of water bottles sticking out of a pallet when he suddenly felt severe pain in his low back, but did not seek treatment. A few months later, he kicked a full 5-gallon water bottle he thought was empty and experienced sharp pain in his low back that lasted five minutes.
A Second Opinion
Since Jim had never experienced pain like this before, he decided to see the chiropractor across the street from his workplace. On his personal history form for Dr. Tim Bole, Jim indicated general aches and low back pain over the years due to the physical nature of his job, along with more severe back problems over the past two months. He also complained of neck pain, problems with walking, numbness in his left hand, and tingling and pain all the way down the back of his left leg. Dr. Bole reviewed the form but did not further question Jim about his health history.
Based on neurological testing, Dr. Bole concluded Jim’s deep tendon reflexes were normal and muscle testing was normal in the cervical spine, but diminished at L4-5 on the left leg. Sensation at L4-5 was diminished by distribution.
Orthopedic testing indicated normal cervical distraction and positive foraminal compression in the neutral position, and the Soto Hall test was positive. These results lead Dr. Bole to a preliminary finding of a sprain or strain. The range of motion of the cervical spine was essentially normal, though right and left rotations were somewhat limited. Reflexes of the upper extremities were without hyperreflexia and sensation was intact. In short, Dr. Bole believed Jim’s cervical spine was relatively normal.
Dr. Bole’s exam of Jim’s lumbar spine revealed positive orthopedic and neurological findings. Kemp’s and Yeoman’s were positive bilaterally, the Straight Leg Raising Test was positive on the left at 40 degrees, and Lasegue’s and Braggard’s were positive on the left. Neurologically, there was muscle weakness and decreased sensation over the L4-5 dermatome and muscle weakness in the lower left extremity.
Dr. Bole advised Jim that his problems stemmed primarily from his low back condition, making him a good candidate for chiropractic treatment. He asked Jim to sign an informed consent document he developed himself, which stated solely: “Chiropractic procedures are usually beneficial and seldom cause any problems.”
Dr. Bole began treating Jim with heat applied to the low back, followed by a side posture adjustment. His neck was adjusted with a cervical manipulation on the right and the left with a cervical manipulation. After three weeks of treatment three times a week, Jim saw no change in symptoms. By the fourth week, he was experiencing a heavy feeling in his legs and intermittent shooting pains into his arms and legs, which worsened when he bent forward. Dr. Bole reassured him the new symptoms were nothing to worry about and continued to administer the same treatments. Dr. Bole also recommended that Jim cut his work hours to part-time and receive help with any heavy lifting.
Jim’s employer couldn't accommodate a part-time work schedule, but they did assign another salesman to assist him. Jim continued to see Dr. Bole three times a week for the next five weeks, during which there were no additional documented complaints or changes.
Jim's Condition Worsens
The assisting salesman expressed concern about Jim’s condition to their supervisor. Concerning behavior included trouble walking up even slight inclines, frequent loss of balance, difficulty holding a pen, and illegible handwriting. Jim didn't dispute these observations, but told his supervisor that Dr. Bole had assured him his symptoms were nothing to worry about.
The supervisor was concerned enough about Jim’s deteriorating condition to convince him to revisit Dr. Welke, the company doctor who originally treated him. After another exam, Dr. Welke arranged a nerve conduction study of the upper extremities and a consult with a neurologist.
In the study two days later, both ulnar nerves were reported to be depressed at the elbows. At the neurologist’s office the following week, Jim continued to complain of paresthesia in the fourth and fifth fingers of both hands and numbness in his left thigh. Physical examination demonstrated:
- Hyperreflexia of Jim’s upper and lower extremities
- Plantar responses were equivocally extensor
- Decreased vibration below the mid-tarsal level
- A positive Lhermitte’s sign
MRI findings revealed a large herniated disc at C5-6, causing massive pressure on Jim’s spinal cord and increased intensity in the cervical cord that would be compatible with a contusion.
A few days passed before Jim could see neurosurgeon Dr. Robert Jolly. By this time, Jim was complaining of a “rubbery” feeling in his left leg, numbness at his waistline and an “electrical” feeling ranging from his arms to his legs that was especially strong on the left side. The physical exam detected a slightly ataxic gait and spasticity of the lower extremities (left greater than right) and decreased sensation in the left lower extremity and sensory level to the waist. At that point, Dr. Jolly advised surgery.
Surgery Results
During surgery two days later, Dr. Jolly found a large osteophyte at the C5 vertebral level. Dr. Jolly removed this and the C5-6 cervical disc using an anterior approach. In addition, he removed osteophytes from the C6 vertebra.
Seven months after surgery, Dr. Jolly believed Jim reached MMI. Jim tried to be as active as possible, but he still had chronic arm and neck pain, weakness and a burning sensation in his hands, and weakness in his arms and legs. Jim described his legs as “feeling slow,” and Dr. Jolly noted Jim walked with a slightly spastic gait and was unable to turn rapidly. His motor skills indicated weakness in the hand grasp bilaterally, especially in the left hand.
Jim was unable to return to work at the bottled water distributor. He attempted to work at several jobs that were sedentary in nature and ultimately landed a position at a telemarketing company, earning roughly one half as much as he did with the bottled water distributor.
The Claim Against Dr. Bole
Jim filed a complaint against Dr. Bole, which contended:
- Dr. Bole failed to conduct diagnostic testing before treating Jim’s condition.
- Jim’s discomfort significantly increased after seeing Dr. Bole.
- Dr. Bole failed to re-examine him when his symptoms worsened.
- Dr. Bole continued manipulating Jim’s neck despite worsening symptoms.
- Dr. Bole failed to refer him for diagnostic tests as indicated.
- Dr. Bole failed to inform him about the risks of manipulation.
- Jim suffered permanent spinal cord damage as a result of Dr. Bole’s treatment.
Jim's attorney brought in a chiropractic expert to assess the case. The expert concluded Dr. Bole’s care fell below the chiropractic standard of care because he failed to obtain a proper history, select an appropriate manipulation procedure, inform Jim about the risks of manipulations and obtain adequate informed consent, and re-examine Jim when his symptoms worsened. It was the expert’s opinion that Dr. Bole’s actions led to a delay in the correct diagnosis, which caused Jim to suffer permanent residual damages.
Dr. Jolly said he believed Jim’s condition was not acute and had progressed over time, but wouldn't say that the DCs' treatment had not aggravated Jim’s pre-existing condition or comment on whether Dr. Bole deviated from the standard of care.
Experts retained to defend Dr. Bole agreed with Dr. Jolly that Jim did not have an acute injury but a chronic condition that progressed over time. In addition, they offered the opinion that Jim had long-tract symptoms before he began treatment with Dr. Bole. At the same time, these experts believed the defense’s case could suffer because:
- Dr. Bole should have been aware of the possibility of cervical cord pathology, due to Jim’s neck complaints and radiation into the lower extremities.
- Prior to manipulation, Dr. Bole should have obtained imaging to better define any underlying cervical cord pathology.
- Dr. Bole should have examined the lower extremities for indications of long-tract findings and cervical cord compromise.
- Dr. Bole’s failure to recognize Jim was suffering from a cervical disc herniation probably led to a worsening of Jim’s condition and a less-than optimal surgical outcome.
As the case moved forward, Dr. Bole became concerned that a jury may award damages in excess of his $500,000 insurance policy limits and agreed to mediate the case. At mediation, the NCMIC claims representative and Dr. Bole’s defense counsel sensed that Jim was anxious to settle his case. After mediating the case for nearly six hours, Jim agreed to accept a settlement offer in the amount of $195,000.
What Can We Learn?
If the case history is important enough to take, it’s important enough to review. Jim’s complaints and history indicated a more complicated condition, yet Dr. Bole didn’t probe deeper into his constellation of symptoms. In a malpractice allegation, experts for the plaintiff would undoubtedly suggest that a more thorough evaluation would have pointed Dr. Bole to a different treatment and resulted in a different outcome. It would then be a challenge for the defense to explain why information written on the intake form was ignored.
When a patient has been treated over time without observable changes, it is time to S.T.O.P.:
- Scrutinize. Review, re-evaluate, re-examine and refocus. It is unusual to initiate treatment without observable improvement in the symptoms. More importantly, if the patient’s condition is getting worse, it’s time to change your approach.
- Treatment. Post-exam, DCs often choose a plan of treatment that includes modalities, specific chiropractic adjustments, and other advice or lifestyle changes. However, if there is no progress or alleviation of symptoms, it may be necessary to initiate a different treatment, referral or recommendation.
- Observe. If there's no improvement, it’s critical to observe not only the patient but also the clinical records detailing what has transpired since the first visit. Good clinical records memorialize the treatment provided and support the need to undertake a new approach.
- Patient. The admonition,“If you listen to patients, they will provide the accurate diagnosis,” is worth serious consideration. Jim told Dr. Bole he was getting worse. The doctor could have used this information to facilitate a discussion to determine if there was additional information the patient hadn’t revealed.
Informed consent cannot be taken lightly. Informed consent means providing the patient with the material risks of treatment in clear, easy-to-understand language as well as communicating the potential consequences of going without treatment. Courts view informed consent as a valuable mechanism for consumer protection.
In this case, Dr. Bole’s informed consent form and process did not meet the basic criteria of revealing the material facts and the potential risks to the patient. Also, Dr. Bole should have documented that he provided informed consent in his clinical records. Providing this information appropriately can enhance a doctor’s credibility and the patient’s confidence in the doctor.
Finally, Dr. Bole should have asked a staff member and someone from Jim’s family to be present for the findings and treatment recommendations. Involving Jim’s family may have generated questions and facilitated a discussion that led to a more comprehensive informed consent process.
Although this case study is based on a real case, names, dates and details have been changed to protect patient and doctor privacy.