Doctor working on patient's back

DC Takes Uncertain Steps When Treating Employee/Friend

Quality treatment and thorough documentation are still needed when providing free care to employees, friends and family. See what can happen when a DC falters in his care.

Ann Preston, 35, had been a longtime patient of chiropractic care. In late 2019, Ann and her family relocated to a new development in the suburbs.

The first neighbor to welcome them was Dr. Dan Mosebach and his wife, Liz. Ann was delighted to learn that Dr. Mosebach was a chiropractor and that his office was just five miles away. In addition, Dr. Mosebach maintained a small office in the basement of his home.

In February 2020, Ann decided to become a patient of Dr. Mosebach because his office was more conveniently located than her former chiropractor’s office. Ann and her family had also become friends with the Mosebach family. Their children played together daily. The adults socialized at least weekly and, at times, joined others at neighborhood gatherings.

Dr. Mosebach had a successful and growing solo practice. He employed one assistant and one receptionist/bookkeeper. The practice was seeing 20 new patients a month on average.

Ann was an enthusiastic and compliant patient who adhered to her scheduled maintenance treatments. Ann was outgoing and totally believed in the benefits of chiropractic, so much so that she recommended chiropractic and Dr. Mosebach wherever she went, making a number of new patient referrals to the practice.

Dr. Mosebach offered Ann a part-time assistant position to which she excitedly accepted. It seemed like a good fit—she could work part-time while her kids were in school and earn extra money and Dr. Mosebach would gain a motivated employee. As many chiropractors do, Dr. Mosebach provided free chiropractic care to his employees.

Employee/Patient Experiences Neck Pain

In April of 2020, Ann did an extensive amount of painting to the interior of her home. She also hung wallpaper in her kitchen, dining room and two of the children’s bedrooms.

These activities caused her neck pain, which radiated into the right shoulder and arm and became intolerable. Without testing and with an examination consisting solely of cervical palpation and checking the cervical RoM, Dr. Mosebach began treating Ann’s neck pain at his practice.

The care provided to Ann consisted of electric muscle stimulation (EMS) applied to the C5 through T2 region. That was followed by chiropractic manipulative therapy to the cervical, thoracic and lumbar spine. Treatment was provided at the conclusion of Ann’s scheduled work days, which were Monday, Wednesday and Friday. Because Ann was a non-paying patient, Dr. Mosebach saw no need to keep records. This was his custom with his other employees, as well as his family members.

In the early afternoon on Saturday, May 28, 2020, Ann came to Dr. Mosebach’s house. She explained that her neck pain was really bothering her. Dr. Mosebach invited her in and took her to his basement treatment room. Dr. Mosebach began the usual course of treatment. EMS pads were slid under the back of Ann’s shirt and placed at the nape of her neck. At the conclusion of the 10-minute EMS session, the pads were removed and CMT was provided. Ann thanked the doctor and left.

Complaints of Burns by EMS Treatment

Approximately 20 minutes later, Ann returned to Dr. Mosebach’s home in a panic and upset. She said her neck was hurting and she could feel bumps on it. Ann removed her shirt and the doctor saw five pencil eraser-sized lesions resembling burns on what appeared to be an area of sunburn. Ann then revealed that she had three sessions in a high-speed tanning bed that week, with the last session occurring two days prior on May 26.

Dr. Mosebach opined the lesions were at least several days old as they were scabbed over and could not have been caused by the EMS treatment. Ann was insistent that something be done immediately. As it was Saturday afternoon, there were no options other than the ER at the local hospital. At the ER, the records noted that the second-degree burns were caused by EMS, and the burns were compounded by a moderate sunburn caused by the tanning bed. Ann requested an immediate plastic surgeon consult, but the ER physician advised her there was nothing to be done until the burns healed.

Ann told Dr. Mosebach that very day that she would no longer work for him. Further, she expected to be compensated for her injury.

Lawsuit Ensues

Dr. Mosebach began keeping a journal of events regarding this incident that evening. He contacted NCMIC on Monday morning. The NCMIC claim representative attempted contact with Ann Preston, but she had already retained counsel.

The NCMIC claim representative worked with the patient’s attorney and Dr. Mosebach for a number of months to attempt resolution of the claim. NCMIC gathered all the medical records, including the tanning salon records, and had Ann Preston examined by a plastic surgeon. The parties were unable to reach a resolution, so a lawsuit was ultimately filed.

The case was problematic for the defense from the onset because:

  • The doctor had no records of treatment.
  • He had not inspected the area where the EMS pads were applied at the time of the application or at the end of the session.
  • The ER records indicated the burns were fresh.
  • Ann Preston had affidavits from several other people who witnessed the burns within minutes of her leaving the doctor’s home.
  • Even though the doctor’s journal indicated he left the patient alone during the EMS treatment, his deposition testimony was that he was in the room closely monitoring the treatment at all times that afternoon.

Doctor Contends It Was a Sunburn—Not EMS

Dr. Mosebach was adamant that the burns were caused by a sunburn, not the EMS. While this appeared to be a plausible defense to the allegations, it tended to hurt the defense as well. The NCMIC-retained experts could justify the care provided by Dr. Mosebach up to the time he applied the EMS pads. It was their opinion that he should have inspected the area prior to the application of the EMS pads and maybe even at the conclusion of the treatment.

This case was one of the more emotionally driven cases seen by NCMIC. There was an extreme amount of animosity between the parties. The incident caused a major rift in the neighborhood where they lived as each expected neighbors to pick sides. There were even some acts of vandalism to property for which each party denied responsibility.

Case Finally Resolves

All of this took an emotional toll on the people involved. It also cost more time and money than was necessary. The case was eventually settled and dismissed on March 25, 2023—nearly three years from the date of the treatment causing the alleged injury.

The settlement amount was $27,500, and the amount spent defending the case was $43,405.

What Can We Learn?

Treating without keeping records. Almost every doctor who has treated a staff person or family member has been guilty of not keeping adequate records for the care provided. It’s easy to believe a friend, relative or staff person would never sue you or take any adverse action against you. After all, you are doing them a favor! Unfortunately, the reality is that many family, friends and staff members will litigate if something goes wrong. This creates an added predicament for you if there are no records to support your treatment or diagnosis.

Read the fine print. Doctors typically only find out about the fine print in a contract when it’s too late. That’s why you should check your policy to see if it excludes coverage for treating family and staff. (NCMIC does provide coverage for the treatment of family and staff, but not all malpractice companies do.)

Examine the patient 101. Any textbook on diagnosis will explain the need to visually inspect the patient and the specific body part involved. In this case, the doctor relaxed the basic fundamentals of physical examination and diagnosis. This was probably due to the familiarity of the doctor/patient relationship, as well as the casualness of the home environment where the patient was treated. The lack of an examination made the doctor less credible and the expert witnesses unable to support the care the doctor delivered.

Beware of escalating emotional involvement. The doctor/patient relationship is a bond built over time, and ultimately, with trust. When trust breaks down, an individual can act in ways previously thought impossible. In this particular case, the destruction of the doctor/patient, neighbor/neighbor, doctor/friend and doctor/staff relationships all culminated in an unsettling response. All relationships have the potential to be fractured by unforeseen circumstances that are emotionally charged and rarely productive.

Litigation is stressful and paralyzing. The doctor is likely to feel anger and resentment because litigation fosters a sense of inadequacy, fear and mistrust. At NCMIC, we’re here to help. It is important that you contact NCMIC as early as possible in the event of any litigation, actual or threatened (or even if you encounter an uncomfortable situation). Although a case can endure for several years, it is imperative to maintain a professional attitude throughout the entire process.

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