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DC adjusting woman's lower back

Doctor Struggles with Patient Noncompliance

Both doctor and patient play important roles in obtaining good outcomes. Should the doctor cede control of the care approach?

Leah Harms, a 44-year-old pharmaceutical researcher and consultant, first presented to William Westoff, DC in July 2018. Leah reported symptoms of back pain that began after her dog suddenly yanked on the leash during a walk. Leah brought with her an MRI from 2015 that revealed an L5–S1 bulging disc with desiccation.

At Leah’s first visit, Dr. Westoff determined treatment by feeling the joints and paraspinal muscles for tone, inflammation, swelling and intersegmental joint restriction. He also used global biomechanics, patient range of motion, and tests to assess muscle and joint integrity. He tested orthopedically and by checking Leah’s deep tendon reflexes. These findings were normal. Because Dr. Westoff did not typically record negative/normal findings, they were not documented.

From his evaluation, Dr. Westoff found weakness in Leah’s left soleus and the musculature in her lower back. He found no atrophy or dysfunction. Her deep tendon reflexes of the upper and lower extremities were within normal limits.

Through various testing, Dr. Westoff identified that Leah’s left quadriceps muscle and range of motion were not within normal limits. She had positive findings on the Nachlas and Yeoman’s Tests, as well as on the straight leg raise at 80 degrees.

However, because Leah had no loss of reflexes, atrophy of the extremities, nerve root tension signs or extreme pain, Dr. Westoff didn’t believe she needed a follow-up MRI. Dr. Westoff determined the causes of her left-sided sciatic pain were multifactorial and included Leah’s weight gain, history as a cigarette smoker, driving several times a week for 10–14 hours per day, and the previously diagnosed lumbar degeneration and desiccated bulging disc. Dr. Westoff believed the source of the sciatica was the L5–S1 disc, and it would only worsen over time. However, he did not communicate this to Leah.

The chart did not indicate if he performed an adjustment at the first visit, but it did reflect that he adjusted her when she returned two days later describing similar symptoms in her low back and hip.

Doctor Provides Adjustment

At this second visit in July 2018, Dr. Westoff adjusted Leah with her lying recumbent on her side. His normal process was as follows:

  • Her lower leg would be straight, while her upper leg would be flexed hip high, so that her foot would be behind the knee of her straight leg.
  • Her arms would be crossed over her chest.
  • Dr. Westoff would then place his right hand on the patient’s arms and his left hand on the lower back at the facet joints of L3-4, L4, L5 and the sacroiliac joints.
  • Dr. Westoff would then use his right hand to stabilize Leah while his left hand created posterior-to-anterior pressure on her low back.
  • Dr. Westoff would know the maneuver was successful if the back became facilitated or there was an audible sound.

If this adjustment didn’t result in the appropriate relief, Dr. Westoff would slightly alter the treatment method and try again. The alternative method was exactly as previously described, except that instead of her top leg bent and put behind the knee of the other leg, it would be stretched straight out and elevated. Dr. Westoff would provide the adjustment under the top leg and behind the hamstring.

Dr. Westoff’s chart never distinguished whether the first adjustment obtained the result he wanted, or if he had to move to the second form of adjustment. He later recalled that several times between July and September 2018 he had to move to the second adjustment, due to Leah’s back being tight or the first adjustment not providing the desired response.

In addition to the chiropractic adjustments, Dr. Westoff also prescribed a regimen of moist heat, electrical muscle stimulation, ultrasound, trigger-point therapy and home exercise. Dr. Westoff recalled that Leah often declined these therapies, due to time constraints. He didn’t recall if he ever discussed the need for these therapies with Leah or determined whether she was performing the prescribed exercises at home.

Dr. Westoff treated Leah 18 times between July 2018 and September 2018, during which she reported various symptoms at each visit. They included left sciatic pain, right arm pain, mid back pain, low back pain, restless leg syndrome and foot cramping in the arches of her feet. The symptoms that manifested themselves the most were left-sided sciatic pain into her hip and low back pain.

Other than slight progress to the function of her spine, Leah’s overall condition was essentially the same at each visit without much improvement. Dr. Westoff did not consider a referral to another specialist since Leah was not complaining of severe pain, and neither neurological symptoms nor dysfunctions were present. Because Leah was not complying with the physical therapy in his office, Dr. Westoff surmised that she was not complying with her home exercise program either. Dr. Westoff believed Leah’s lack of compliance was the reason her symptoms hadn’t improved significantly.

In September 2018, Leah was scheduled for breast reduction surgery, and she stopped seeing Dr. Westoff. After recovering from surgery, Leah began working out with a personal trainer, which left her sore. As a result, Leah called Dr. Westoff’s office and was able to convince the receptionist to squeeze her in for an appointment on Dec. 22, 2018.

Treatment After Care Gap

Dr. Westoff’s customary practice was to conduct a complete reevaluation after not seeing a patient for three months or more. However, Dr. Westoff didn’t consider Leah’s condition to be significantly different from prior visits. What’s more, Leah was pressed for time and just wanted a quick adjustment to relieve her discomfort. Consequently, Dr. Westoff proceeded to adjust her without a complete reevaluation.

Dr. Westoff later recollected that there was nothing unusual about Leah’s presentation, other than she had more hypertonicity and tension than she had during prior treatments. His first attempt to adjust Leah proved unsatisfactory, so he tried the previously described alternative technique. Leah contended that there was significantly more force with this second adjustment, and she felt pain immediately after it. However, because the pain was not debilitating, she did not mention it to Dr. Westoff or his staff.

Immediately thereafter, Dr. Westoff’s office was closed for the holidays. During this time, Leah later testified that her back discomfort worsened, and the pain began traveling down her leg.

Leah sent an email to Dr. Westoff on Dec. 27, 2018, in which she claimed she developed a sharp pain in her right hip 24 hours after the Dec. 22, 2018, adjustment. Advil hadn’t controlled the pain, so on Dec. 26, 2018, Leah’s sister gave her a Percocet, which also provided only minimal relief. Dr. Westoff replied to Leah’s email by asking her to return to his office the evening of Dec. 27, 2018, for a reevaluation of her condition.

Leah was able to go to that appointment, and Dr. Westoff performed a more complete examination this time. Leah’s heel-to-toe walk test was negative, the straight-leg test was positive at 45 degrees, and Braggert’s was positive on the right. Dr. Westoff found joint dysfunction at L4–5 and at the sacrum. Leah had myofascial inflammation at the piriformis on the right and in the lumbar paraspinals. Her range of motion was severely guarded and painful. Dr. Westoff also wanted to test Leah’s deep tendon reflexes, but she was too uncomfortable to do this test.

Dr. Westoff did not adjust Leah on Dec. 27, 2018. Instead, he placed her in a traction position to help decompress the discs, and he applied ultrasound for six minutes. He recommended ice and rest and that she follow up with her primary care provider for medications.

Dr. Westoff did not document how Leah responded to the care rendered at this visit. Although he was concerned that Leah’s symptoms had shifted to right-sided pain, he did not refer her to an orthopedist or a neurosurgeon. Instead, he referred her for an MRI for the following day.

Doctor Apologizes

During this same Dec. 27, 2018, appointment, Dr. Westoff informed Leah that he should not have attempted the Dec. 22, 2018, low back adjustment “cold,” without a proper assessment. He admitted he was responsible for Leah’s injury and said he was very sorry he hurt her.

On Dec. 28, 2018, Leah had the lumbar MRI Dr. Westoff had ordered. In addition, she contacted her primary care physician who arranged for her to be seen by a pain management specialist that day.

When Dr. Westoff followed up with the director of the radiology clinic about the MRI, he learned that Leah had a chronic but exacerbated L5–S1 disc bulge. To Dr. Westoff, this indicated that Leah’s sciatic pain on Dec. 27, 2018, was consistent with a minor bulge.

Dr. Westoff left a voicemail message for Leah on Dec. 29, 2018, asking her to call him back to discuss the results of the MRI and schedule an appointment. Later that day, Leah returned the call and told Dr. Westoff’s receptionist that she had received an epidural injection the previous day and would not be returning for chiropractic treatment.

Leah’s first and second epidural injections proved to be ineffective. Therefore, Leah was referred to spine surgeon, Larry White, MD, who saw her on Jan. 12, 2019. Dr. White’s reading of the MRI showed a 90% disc collapse at L5–S1, which made her spine unstable. Dr. White also thought the disc herniation was compressing two separate nerve roots and was “a case of impending cauda equina syndrome.” Dr. White told Leah it was his opinion that if she didn’t have surgery within one week, she would require surgery on an emergency basis for cauda equina syndrome in the future.

On Jan. 14, 2019, Dr. White performed a lumbar fusion with interpedicular screws and ipsilateral connecting rods at L5–S1. After Leah’s five-day hospital stay, she still had significant pain but was improved enough to go home.

By April 2019, Leah was able to walk for more than one mile at a time and no longer needed pain medications. She was also able to use an elliptical trainer and perform abdominal strengthening exercises.

Lawsuit Ensues

In spite of her overall good physical condition, Leah decided to sue Dr. Westoff. The first count of the complaint was that Dr. Westoff:

  • Failed to perform appropriate diagnostic studies and related evaluation prior to applying significant physical force to the lumbar spine.
  • Applied physical force to the lumbar spine that was excessive and inappropriate under the circumstances.
  • Used a chiropractic manipulation that was contraindicated.

The second count of the complaint was for lack of informed consent. Leah contended that if she would have been informed about the risks associated with the procedures performed by Dr. Westoff, she would not have consented to them. She retained a chiropractic expert to attempt to establish that Dr. Westoff breached the standard of care. The expert consultant opined:

  • When Leah presented to Dr. Westoff in July 2012 with left-sided radicular symptoms, the standard of care mandated an MRI be obtained.
  • With the lack of progress, Dr. Westoff should have obtained an MRI by September 2018.
  • When Leah’s condition didn’t improve by September 2018, she should have been referred to an orthopedic surgeon or a neurosurgeon.
  • Dr. Westoff should have insisted that Leah follow his prescription for physical therapy modalities before performing chiropractic adjustments.
  • When Leah returned for care on Dec. 22, 2018, Dr. Westoff should have performed a reexamination with orthopedic and neurologic testing.

Leah’s surgical expert (and also her surgeon), Dr. White contended that the chiropractic adjustment on Dec. 22, 2018, caused the condition Leah presented with on Jan. 12, 2019.

He based his opinion on the history Leah had provided to him. This included that Leah had developed acute right-sided hip pain within 12 hours following the chiropractic adjustment, and that her right leg symptoms progressed until Dr. White first saw her on Jan. 12, 2019.

Dr. White also opined that the twisting, rotational motion of the chiropractic adjustment administered on Dec. 22, 2018, caused the herniation. Moreover, Dr. White criticized Dr. Westoff for not conducting orthopedic and neurological testing before administering the chiropractic adjustment on Dec. 22, 2018.

Defense Counters

The NCMIC-retained defense counsel thought that, from a standard of care standpoint, the most vulnerable area of Dr. Westoff’s defense was how he handled the patient’s re-examination on Dec. 22, 2018. Dr. Westoff conceded that he would have normally performed a more complete re-examination after a 3–4-month hiatus from care, but Leah was pressed for time that day.

Experts retained for Dr. Westoff’s defense contended that while a reexamination would have been appropriate, it was not mandatory. The reason for this was that Leah’s condition was not significantly different than it was in September 2018. Even if a re-examination would have been performed, its findings probably would not have altered the prescribed care.

The NCMIC defense team retained a radiologist on behalf of Dr. Westoff to review the plaintiff’s 2015 and 2018 imaging studies. The crux of this doctor’s opinion was that any changes in the 2018 MRI compared to the 2015 MRI were a result of a chronic process. They were not caused by a particular event. He supported this opinion by pointing to “associated changes” that were observable in the imaging studies. These included:

  • For L5–S1, changes in the bone and irregularity of the endplate indicated a chronic process.
  • Modic-type two changes of the endplates adjacent to the abnormal disc indicated a chronic rather than an acute condition. (Modic changes are pathological changes in the bones of the spine and the vertebrae. These changes are situated in both the body of the vertebrae and in the end plate of the neighboring disc.)
  • An articular facet joint arthropathy indicated abnormal chronic stress.
  • There were no soft tissue changes or bony changes consistent with an acute traumatic process, such as a fracture, dislocation, soft tissue swelling or soft tissue edema.

The plaintiff contended that she continued to experience significant discomfort and loss of range of motion in her spine. She also maintained she was no longer able to run, lift things around the house or drive long distances. Her medical bills totaled more than $73,000.

Leah lost her job in October 2018 and was unemployed when she returned to Dr. Westoff’s care in December 2018. While she was able to later obtain employment, she still pursued a wage loss claim. She contended that she would not be able to be promoted in her current job without traveling extensively, which her injuries prohibited.

Case Goes to Mediation

The case was then scheduled for mediation. The NCMIC-retained defense attorney identified major obstacles in obtaining a favorable verdict for Dr. Westoff. These included:

  • Dr. Westoff’s failure to conduct a re-examination before the Dec. 22, 2018 adjustment.
  • The fact that the plaintiff’s condition deteriorated post adjustment and that Dr. Westoff did not obtain her informed consent before treatment.
  • Dr. Westoff’s continued belief that he was to blame, and he was likely to concede fault when pressed at trial.
  • Dr. Westoff had told the patient he had caused her injury, which could be treated as an admission of liability at trial.

After giving the matter careful thought, Dr. Westoff decided he did not want to go to trial, and he gave his written consent for NCMIC to resolve the claim. After a full day of mediation, the case settled for $147,500, plus the cost of mediation. Defense costs to defend Dr. Westoff totaled more than $88,000.

What Can We Learn?

Insist on patient responsibilities. To obtain overall success through therapeutic intervention, patients must comply with doctor recommendations. This is in a patient’s best interest, and doctors should confirm patients are adhering to the recommended treatment protocol. If not, they should explain why it is important and document their rationale, while avoiding negative commentary about a noncompliant patient. In this case, it appears the patient did none of the advised rehabilitation exercises or home therapies.

Stick to your custom and practice. Dr. Westoff was attempting to accommodate a busy patient when he failed to adhere to his normal re-evaluation protocol. Essentially, he allowed the patient’s desires to influence him to deviate from his custom and practice. What’s more, if Dr. Westoff would have followed his standard process, he might have found clinical indicators that altered how he provided treatment that day.

Document the normal, as well as the negative. It is important to record negative findings, as well as a rationale for why a test or referral was (or was not) ordered or made. An explanation in the records explaining why a test finding or referral would have been immaterial can be invaluable when a malpractice allegation is initiated months or even years later. It supports the thought process of the doctor. In this case, Dr. Westoff wrongfully assumed there was no need to record normal findings, and he failed to document his reasoning for not referring the patient to another specialist or further testing.

Obtain informed consent. An allegation of failure to obtain informed consent is a component of almost every malpractice case in today’s legal environment. In this case, Dr. Westoff should have had an informed consent discussion with Leah Harms about the progressive nature of her condition and risks of treatment and documented it. Ideally, the patient would also have signed a form listing the specific risks/benefits of treatment.

Refer, reevaluate or raise your index of clinical suspicion when there is no improvement. Usually, there are discernible changes in symptoms to a patient over time. If Dr. Westoff would have had a process in place to ascertain clinical changes, he would have discovered the patient’s pain increased after his second adjustment on Dec. 22, 2018. Many times, it can be beneficial to have patients fill out interim update forms to help identify these changes.

Be careful with apologies. Having empathy for a patient doesn’t mean admitting wrongdoing or negligence. Things you say, even if meant to empathize or sympathize, may be used against you in court. Further, many states have required guidelines on this issue and some even require an apology in certain situations.

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