When a doctor stays the course despite finding several reasons to re-evaluate his care, it's cause for concern. Read how one DC learned the hard way.
Posted in Case Studies on Wednesday, November 1, 2023
Laura Berg, 47, presented to the Birdland Chiropractic Clinic for the first time on April 17, 2016.
She was suffering from low back pain and numbness that extended down her left leg—complaints that started when she was in the seventh grade. At that time, she had fallen off some playground equipment and was seen by her primary care physician. Though she was diagnosed with a sprain/strain, Laura continued to have low back pain throughout her life. Her symptoms became worse when she tried to lift a heavy box into the trunk of her car.
On April 17, Laura was seen by Jack Leland, DC, who took a complete history and examination that revealed positive Romberg’s, Fabere’s and Lasegue’s tests. Dr. Leland also had taken a set of lumbar X-rays on the initial visit that confirmed moderate degeneration throughout the region.
Dr. Leland’s chiropractic care plan for Laura called for three visits a week for four weeks, and then twice a week for the next month. This plan consisted of lumbar spine adjustments in the side posture position and treatments with electrical muscle stimulation, ice/heat and massage.
At the conclusion of the eight-week session, Laura had improved significantly. She went from an “8 out of 10” to a “1 out of 10” on the visual analog pain scale. At that point, Laura became a “see-as-needed” patient.
Laura continued to treat with Dr. Leland for another three years on a somewhat regular basis. She still had complaints about her low back, but chiropractic care seemed to resolve her pain for at least a month. Dr. Leland’s last adjustment of Laura was on May 25, 2019.
In August of 2019, Laura went to a walk-in clinic at St. Joseph’s Hospital when her low back symptoms flared up. There she had an MRI that showed annular tears, bulges and degenerative disc disease in her lumbar spine. However, she declined to receive any treatment at that time, and the pain eventually went away on its own.
Dr. Edmonds Takes Over When Dr. Leland Retires
Dr. Leland decided to retire after 45 years of practicing chiropractic, and he sold his practice to Luke Edmonds, DC in December 2019. Dr. Edmonds had only been out of school for a few months but was eager to start his own practice. Dr. Leland remained with the practice for three to four months to show Dr. Edmonds his office procedures, introduce him to patients and to provide both with a level of comfort during the transition. Dr. Edmonds relied heavily on Dr. Leland for advice, and he tried to operate the clinic just as it had been run for the previous 45 years.
On April 3, 2020, Laura returned to the Birdland Chiropractic Clinic with moderate low back pain and some minor numbness down into her left leg. While Laura was surprised to learn Dr. Leland had retired, she agreed to treat with Dr. Edmonds as she thought “he seemed like a pleasant man.” Laura then informed Dr. Edmonds of the complaints she had in August 2019 and brought along her MRI for him to review. Unfortunately, Dr. Edmonds failed to review the film.
Relying on Dr. Leland’s chart, Dr. Edmonds performed a side posture adjustment on Laura, which caused immediate pain. Dr. Edmonds applied ice to her low back in an attempt to relieve the pain. After 45 minutes of therapy, Laura was still unable to get up from the table, prompting Dr. Edmonds to call 911.
Patient Goes to the Hospital
Laura arrived at St. Joseph’s Memorial Hospital and was immediately taken for an MRI. Results of the MRI confirmed a large disc extrusion at L4-5, degeneration at multiple levels with small dorsal annular tears at L2-3 and L3-4. Laura was hospitalized for two days before being sent to a neurosurgeon known for his work on professional athletes.
On April 6, 2020, Laura underwent a left L4-5 microdiscectomy. The procedure went as well as could be expected with no complications. Laura was released from the hospital 36 hours later and was given orders to start physical therapy in two months. This therapy went very well for Laura, lasting eight weeks with no major complaints.
Legal Action Ensues
It was a surprise to Dr. Edmonds when in the fall of 2021, Laura filed suit against him and the Birdland Chiropractic Clinic. The lawsuit alleged:
- Dr. Edmonds failed to exercise the degree of care, skill and learning that a reasonable, prudent health care provider in the same profession would be expected to show in similar circumstances.
- As a direct and proximate result of Dr. Edmonds’ negligence, Laura suffered an injury to her back.
- Laura incurred medical expenses and lost earnings. Her future earning capacity was also impaired.
- Laura will continue to experience pain and suffering, disfigurement and loss of enjoyment of life.
Dr. Edmonds met with his attorney shortly after the suit had been filed. In discussing the allegations and reviewing the doctor’s chart, it was clear that the defense was going to have problems with Dr. Edmonds’ recordkeeping or lack thereof.
Not only did Dr. Edmonds fail to review the patient’s MRI, he also failed to take a new written history, perform an examination or identify the problem. This was despite the fact that Laura had not been to the clinic for two years.
At his deposition on Jan. 5, 2022, Dr. Edmonds admitted he had relied on Dr. Leland’s records to determine what type of adjustment to perform on Laura. Complicating the issue was the fact that all of Dr. Leland’s office visits with Laura were documented on a single 4-by-8 inch travel card.
At this point, Dr. Edmonds’ defense counsel tried repeatedly to locate an expert to support the doctor’s actions. However, not one of the many DCs contacted would agree to back his actions.
A Strategic Maneuver
Based on these unsupportive reviews, it became clear that Dr. Edmonds would need to concede that he breached the standard of care by failing to take an adequate written history and examination. This move would show him to be an honest doctor—one willing to admit his mistakes. This, in turn, would preserve his credibility when he testified about other aspects of his chiropractic care. As a result of these developments, Dr. Edmonds admitted to breaching the standard of care. Laura’s attorney made a demand of $300,000 to settle the case shortly after Dr. Edmonds’ deposition.
In light of Dr. Edmonds’ testimony along with the first question of the jury’s verdict form, “Did the doctor violate the standard of care?” it was apparent the case would be a difficult one to defend. Defense counsel would have to press the fact that Dr. Edmonds did not actually cause Laura’s injury.
Pursuing the “Causation” Defense
Dr. Edmonds’ defense pursued the point that Laura originally presented to the Birdland Chiropractic Clinic with problems with her low back that she had experienced since the seventh grade. In fact, she most likely had a herniated disc when Dr. Edmonds first saw her, though the doctor’s lack of documentation made this difficult to prove. Fortunately, the MRIs taken in August 2019 and April 2020 showed similar findings, which supported the doctor’s contention that he didn’t cause the injury.
After a grueling mediation, both parties agreed to settle the case for $75,000. Dr. Edmonds was relieved to have the case resolved but embarrassed that his poor records crippled a case that appeared to be otherwise defensible.
Then, in accordance with the National Practitioner Data Bank (NPDB) requirements, NCMIC sent a medical malpractice payment report within 30 days of confirming settlement. In turn, the NPDB submitted this medical malpractice payment report to the state’s board of chiropractic. This began a chain of events that would result in further anxiety for Dr. Edmonds.
The Letter No Doctor Wants to Receive
Several months after Dr. Edmonds’ lawsuit was resolved, he received a letter from his state board of chiropractic. This letter stated the board was in receipt of a medical malpractice payment report and now wanted to investigate it. Dr. Edmonds was ordered to send in all documentation surrounding the events of Laura’s claim, as well as his own personal response to the allegations within 10 days. On top of this, the board specifically requested 10 active patient files for further review. A hearing date was set for three weeks later.
Dr. Edmonds contacted NCMIC immediately regarding the board investigation. Dr. Edmonds’ malpractice policy with NCMIC included an audit and legal defense endorsement (ALDE). This endorsement covers state disciplinary proceedings, among others.
NCMIC retained attorney Steven Eckstein, who had represented Dr. Edmonds in the civil case, to defend Dr. Edmonds through the board investigation. Eckstein prepared an extremely thorough response to the board, which included Laura’s entire file as well as the patient files requested by the board.
At the hearing, Dr. Edmonds faced harsh criticism of his recordkeeping by the panel of board members. According to the panel, all 10 files were well below the standard. With the help of his attorney, Dr. Edmonds tried to explain his reasoning behind each note on each file. In the end, however, Dr. Edmonds agreed his recordkeeping did not measure up to what he was taught in school and he promised to make improvements. When the hearing adjourned, Dr. Edmonds was advised his case would be further reviewed by the panel and he would have a response soon.
A Tense Waiting Period
It was nine months before Dr. Edmonds heard back from the state board of chiropractic. The board investigator handling the case contacted Mr. Eckstein with a proposed consent order, which included:
- Two-year probation period
- Routine audits by the state for five years
- 35 hours of recordkeeping courses to be completed in six months
- $2,500 as a fine and $1,600 in costs for board administrative fees
Dr. Edmonds was astonished by the board’s proposal—he could not believe the severe reprimand the board was trying to impose.
Negotiations between Eckstein and the board went on for several more months before the parties could come to an agreement. A consent order signed by Dr. Edmonds agreed that he would complete the 35-hour recordkeeping course within six months, receiving routine audits for two years and paying the administrative fees. Fortunately, the fine and the two-year probation period were waived as a result of the defense team’s diligent efforts.
What is the National Practitioner Data Bank and How Does it Work?
The National Practitioner Data Bank (NPDB) was enacted by Congress to improve the quality of care by requiring malpractice payers and others to report those who engage in “unprofessional” behavior. The NPDB is an electronic repository of all payments made on behalf of physicians in connection with medical malpractice settlements or judgments as well as adverse peer review actions against licenses, clinical privileges, and professional society memberships of health care practitioners.
By federal law, insurance companies must report all malpractice payments and certain adverse actions to the NPDB (doctors have the opportunity to include a response with the report to share their side of the story). In turn, the NPDB is required to make this information available to state licensure boards, hospitals, and in some situations, professional societies and health care entities.
The intent is to improve the quality of health care by encouraging state licensing boards, health care entities and professional societies to identify and discipline those who engage in unprofessional behavior. The aim of the NPDB is also to restrict incompetent health care practitioners from moving from state to state without disclosing previous malpractice situations.
What Can We Learn?
By Daniel M. Bachi, Esq., West Palm Beach, Fla.
Keep good records. In today’s hectic society, it can be very difficult to write a book on every patient following treatment. But weighed against the time and effort put into a lawsuit or even a board investigation, it can be well worth the extra effort. Records are the only way a patient’s continuity of care can be assured. In this case, an additional five minutes spent by Dr. Edmonds on this file could have saved him a three-year nightmare.
Check prior history. Neither Dr. Edmonds nor Dr. Leland conducted a proper history, which would have provided valuable information in the case. For example, Laura indicated her back problems dated back to when she was in the seventh grade. Asking about previous doctors who saw her and obtaining records of prior care could have uncovered a prior diagnosis of herniated disc. This may have supported Dr. Edmonds’ contention that he didn’t cause the herniation, but the passage of time simply worsened it.
Re-examine whenever a patient presents with a new condition or after an extended time between visits. When patients return to the office with a new condition or after a few months, a re-examination and a history should be performed. In this case, Dr. Edmonds should have inquired about what Laura was doing between visits and whether accidents or other incidents may have caused her increased back pain after a moderately pain-free interval.
Remember to review tests and reports. In this case, the MRI clearly revealed the annular tears and other degenerative changes that may have altered Dr. Edmonds’ therapeutic approach. Prior records and reports should be obtained, reviewed and documented in the chart.
Remember jurors are patients-in-judgment. It’s often forgotten that the jurors who sit in judgment are themselves potential patients. When they listen to the facts of the case, they often empathize with the plaintiff and think: “I could have been the patient treated by that doctor.” The care you provide, the image you generate, the impression you make, the credibility you exude and the competence you exhibit will affect the impression you make on a jury.
Make settlement decisions carefully. Even if a payment is made for the smallest dollar amount to resolve a case with no real merit, it must be reported to the NPDB. Licensure boards, managed care organizations and others may be able to access the NPDB in certain situations. In some states, settlement information is also required by state licensing boards and/or chiropractic boards.
Be aware of the emotional toll of board hearings. It’s not uncommon for a doctor not to hear anything from the board for 8 to 10 months, if not longer. This can be stressful as doctors are in limbo and without any control over their ability to continue to practice chiropractic in the future.