Doctor Attempts to Relieve Preteen's Cervical Discomfort

Drifting in and out of consciousness while at a local hospital, 11-year-old Kelly Barber complained of pain in the upper left part of her abdomen.

Kelly had been thrown from a vehicle during an automobile accident. She was diagnosed with a splenic laceration with significant intraperitoneal fluid. After an open splenectomy was performed, she was admitted to intensive care in stable condition.

The following day, Kelly’s doctors addressed her other injuries. The Glasgow coma scale was 15, correlating with a minor brain injury, but there were no obvious signs of acute traumatic injury. There were no dislocations, bony or soft-tissue abnormalities identified. Additionally, various studies revealed: 

  • A small scalp hematoma in the high right parietal scalp
  • Thoracic and lumbar spine alignment was within normal limits, and no fractures or dislocations were shown in the thoracic and lumbar-spine and lateral X-ray views 
  • The pelvic ring and bilateral hips were within normal limits
  • No fractures or dislocations were identified
  • Normal soft tissues at the craniocervical junction without evidence of fracture from C1–C2
  • Widening at C3–4 
  • A right pedicle fracture of C4
  • Slight rotation of C1 through C3 when compared with C4–T1
  • Laminar disruption at C3–4
  • Nondisplaced fracture of the C4 left pedicle and lamina with no evidence of encroachment onto the spinal canal 

Orthopedist Prescribes Philadelphia Collar

Following 13 days of hospitalization, Kelly was discharged from the hospital. She still complained of neck pain and general discomfort, and was instructed to continue wearing the Philadelphia collar she was placed in while in intensive care. Kelly was to follow up with her pediatric and orthopedic physicians and to limit her activity until after the appointment with her pediatric surgeon.

While Kelly was hospitalized, her parents retained an attorney to pursue a claim against the driver who caused the accident. Once this attorney learned of Kelly's neck discomfort, he recommended that she be evaluated by Martin Wolfe, DC. 

Four days after discharge, Kelly visited Dr. Wolfe for the first time. She presented to Dr. Wolfe’s office wearing the Philadelphia collar. She complained of headaches and bilateral neck pain, radiating into her shoulders and left hand. The X-rays Kelly brought to the visit showed a right pedicle fracture of C4 and laminar disruption and widening at C3–4. 

Dr. Wolfe performed a Spurling’s Test on Kelly that he interpreted as negative. His treatment rendered to her consisted of hot packs and EMS. Kelly was asked to return the next day, and when she did, her complaints were the same. Dr. Wolfe’s office repeated the treatment and asked her to return in 24 hours.

Two weeks later, Kelly had a third and final visit with Dr. Wolfe. She said her pain was as severe as ever, and that the Philadelphia collar remained extremely uncomfortable. Dr. Wolfe advised Kelly to switch to a “soft” collar to alleviate some of the discomfort.

Soft Collar Wreaks Havoc with Treatment Plan

During a follow-up appointment two weeks later, Kelly's pediatrician noticed she was wearing a soft collar—not the Philadelphia collar her orthopedic physician had prescribed. Kelly had to rest her chin in her hands to hold up her head.

The pediatrician referred Kelly to her orthopedist, who took additional X-rays, which showed an anterior compression with mild anterior subluxation of C4 relative to C5. Kelly was immediately taken into surgery for a C4–C5 anterior cervical discectomy, decompression and fusion with left iliac crest bone graft. A peak plate was placed over the top of C4–C5 with two screws into C4 and two screws into C5.

Several months after that operation, Dr. Wolfe received a letter from an attorney, alleging negligence when he: 

  • Removed her cervical collar, which caused her fracture to become displaced
  • Provided Kelly with a soft collar, which led to her noncompliance
  • Aggravated her pre-existing cervical-spine injury when he performed the Spurling’s test at the first visit

Because no lawsuit had been filed, NCMIC had to wait to receive information about the allegations. After obtaining the majority of the records and diagnostic studies, NCMIC retained consultants to provide opinions regarding Dr. Wolfe’s care.

The first chiropractic consultant was alarmed by Dr. Wolfe’s removal of Kelly's Philadelphia collar as it was inconsistent with the practices taught by chiropractic institutions. 

The second chiropractic consultant was critical of Dr. Wolfe performing a Spurling’s test. This expert’s opinion was that this test placed a great amount of stress on the area in question. 

An orthopedic surgeon also reviewed the case. He believed Dr. Wolfe’s most serious mistake was exchanging the Philadelphia collar for a soft one. He explained that this was the equivalent of removing a cast prematurely and replacing it with an Ace bandage. This surgeon opined that Kelly would have had a 90-100% chance of healing without complications had Dr. Wolfe not intervened. This expert saw no viable defense for Dr. Wolfe.

Dr. Wolfe understood that settling the case was his best option and gave his written consent to settle. After an initial settlement demand of $850,000, the matter ultimately settled for $235,000. Expenses associated with the investigation of this case were $10,325.

What Can We Learn?

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

Consultation With Other Providers

Any change in clinical treatment contrary to another health care provider’s orders may constitute a challenge to appropriate care. In this case, Dr. Wolfe should have consulted with Kelly's orthopedic physician before initiating his own treatment plan.

Contraindicated Evaluation  and Testing

The appropriateness of Spurling’s test was clearly an issue in this case. With known trauma, current X-rays, and the initiation of a Philadelphia collar, Spurling’s test seemed contraindicated. Additionally, in cases involving trauma, health care professionals should demonstrate a heightened awareness of potential complications. 

More X-rays Not Always Needed 

Because Kelly brought her recent X-rays to the visit, which showed a right pedicle fracture of C4 and laminar disruption and widening at C3–4, there was no reason to duplicate radiographic imaging. They would not have provided additional information. 

Treatment of Fractures

Some state statutes do not permit the treatment of fractures. In that case, Dr. Wolfe would not only be in violation of a standard-of-care issue, but also of this statute. He could also face a possible disciplinary action by the state’s board of examiners for practicing outside the scope of his license.

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 health care providers in matters related to their professional licenses and malpractice actions. The firm’s website is

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