avoiding responsibility is not advisable

Doctor's Head in the Sand Regarding Responsibilities

A patient visits a DO, an MD and a DC. Which one was responsible for her injuries?

Sue Lenz, 56, was working as an exterminator. On March 12, 2017, she was performing a pest inspection at a local club, and while looking between a cabinet and countertop, she became startled. She thought she saw a large object and abruptly twisted her neck, striking her face on the countertop.

Sue immediately complained of pain in her head and neck. She filed a workers’ compensation claim and was sent to her employer’s company doctor, Jason Jones, DO, who diagnosed an orbital fracture. This injury required surgery and on April 18, 2017, Sue underwent an open reduction and internal fixation of a left orbital fracture.

After Sue was discharged by Dr. Jones, she was referred by the workers’ compensation carrier to orthopedist Thomas Burns, MD, to address her neck complaints. At Sue’s initial evaluation on Sept. 10, 2017, Dr. Burns diagnosed a cervical herniated disc at approximately C5–6 with acute onset of cervical radiculopathy.

Sue was treated with anti-inflammatories and physical therapy until Oct. 10, 2017 when she had an MRI of the cervical spine. The MRI showed disc herniations at C5–6 on the right and at C6–7 on the left. On Oct. 18, 2017, Sue underwent an anterior cervical microscopic discectomy and arthrodesis at C5–6 and C6–7 with machined allograft spacers, bone morphogenic protein and anterior cervical plating. Postoperatively, Sue continued to be followed by Dr. Burns until her discharge on Feb. 12, 2018.

The day after being discharged by Dr. Burns, Sue went to perform a bed bug inspection at a local hotel. As she was lifting a king-size mattress, she developed significant neck and right upper extremity pain, as well as a grabbing and burning sensation throughout the right trapezius muscle that extended into her right arm and thumb. Sue returned to Dr. Burns, and his physical examination revealed she had approximately 80% of her normal cervical range of motion with good strength and sensation in the upper extremities.

Dr. Burns diagnosed Sue with a thoracic strain and symptomatic thoracic spondylosis. He prescribed a steroid and pain medication, and gave Sue a work restriction of lifting no more than 15 pounds and no overhead work. The X-rays showed her previous neck fusion was still in place. Dr. Burns discharged Sue at maximum medical improvement in early July 2018. Her diagnosis was an improving thoracic strain and a mild thoracic spondylosis.

Patient Sees a Chiropractor

On March 13, 2019, Sue saw Todd Gund, DC, with the chief complaint of pain in the back of her neck, between her shoulders and low back areas. She told Dr. Gund that she felt pain over the past two weeks and that the pain was aggravated by the duties of her pest control job. She chose to treat with Dr. Gund because she did not have chiropractic insurance coverage, and Dr. Gund ran a cash practice and charged less than other area chiropractors.

Dr. Gund’s physical examination revealed decreased range of motion in Sue’s cervical and lumbar spine areas. He found Sue’s muscle strength to be normal in both her upper and lower extremities. During his soft tissue examination, Dr. Gund noted muscle spasm, trigger points and hypertonicity in Sue’s posterior cervical region, the thoracic region between her shoulders, the lower lumbar region, and the right and left sacroiliac regions. Dr. Gund diagnosed Sue with low back pain and cervical lumbar segmental dysfunction. He treated Sue with 10 minutes of electrical stimulation, manual massage therapy and diversified adjustments at C1, C2, C5, C6, T4, T5, L4 and L5.

When Sue returned to Dr. Gund on March 15, 2019, she again complained of pain in her neck, low back and in the area between her shoulders. Sue’s straight leg test was positive and Kemp’s test produced increased low back pain; the shoulder compression test, the cervical distraction test and the cervical compression test were all positive on the right side. Dr. Gund also noted muscle spasm, trigger points and hypertonicity throughout the cervical, thoracic and lumbar spine. Dr. Gund again treated Sue with 10 minutes of electrical stimulation, manual massage and diversified adjustments at C1, C2, C4, C5, T5, T6, L4 and L5. Sue was scheduled for treatment with Dr. Gund on March 20, 2019 but did not return.

Sue Returns to Her Primary Care Physician

On March 17, 2019 Sue saw her primary care physician, Stewart Blue, MD, for neck and right arm pain with numbness, tingling and weakness. She reported to Dr. Blue that in February 2019 she began noticing some neck tightness.

Sue also told Dr. Blue about her two chiropractic treatments by Dr. Gund, which she said resulted in severe pain from her neck down to her right hand with numbness and weakness in her right arm. Dr. Blue diagnosed cervical radiculopathy and prescribed a steroid and muscle relaxer. He also scheduled an MRI of Sue’s cervical spine for later that day. This MRI showed changes from the previous cervical surgery in October 2017, as well as a disc herniation at C4–C5. Consequently, this was no longer a workers’ compensation case, and Sue was referred to Chris Kay, MD, and not to Dr. Burns, who performed the surgery in 2017.

When Sue was first seen by Dr. Kay on March 20, 2019, she provided a history of undergoing a C5–7 anterior cervical discectomy and fusion by Dr. Burns in 2017. She reported she did well for several years, but she had recently developed mild neck pain. She also told Dr. Kay that she received chiropractic manipulations one week before, and after that she developed acute right arm pain, numbness and weakness with the inability to raise her right arm and no feeling over her deltoid.

Symptoms Persist; Patient Undergoes Surgery

Sue said she tried conservative treatment, including steroids, anti-inflammatories and muscle relaxers, but her symptoms persisted. Dr. Kay reviewed the MRI of Sue’s cervical spine that showed the new acute disc herniation at C4–5. This herniation was causing severe compression on the nerve root. Dr. Kay noted that he believed Sue developed adjacent segment disease, and as a result of her chiropractic manipulation, the disease progressed to become a herniated disc.

On March 28, 2019, Dr. Kay removed the cervical hardware that had been placed at C5–7 in October 2017, and he performed a new cervical discectomy and fusion at C4–5. Following surgery, Sue underwent 17 physical therapy sessions in April and May 2019. When Sue followed up with Dr. Kay late in May 2019, he noted that she had recovered exceptionally well post surgery—her pain and numbness had resolved.

Sue saw Dr. Kay again on July 14, 2019. Although Sue no longer had pain and numbness, and the weakness in her right arm was almost completely gone, she had new pain that radiated down her right arm into her second and third fingers. This new pain was suggestive of a C7 radiculopathy. Dr. Kay ordered an MRI that was performed on Aug. 1, 2019, but it didn’t identify significant pathology at C7 that would account for the new problems. Sue’s last office visit with Dr. Kay was July 14, 2019.

Lawsuit Pursued

On Sept. 11, 2019, Sue filed a lawsuit against Dr. Gund. The suit alleged:

  • Dr. Gund failed to obtain and record a proper and complete history of the plaintiff’s previous neck surgery.
  • In light of the plaintiff’s prior neck surgery, Dr. Gund should not have manipulated the prior fusion area.
  • Dr. Gund’s manipulation led to a disc herniation at C4–5 and the need for the subsequent surgery, which resulted in Sue’s chronic arm problems.

Dr. Gund reported the lawsuit to NCMIC for coverage under his malpractice insurance policy (with policy limits of $500,000), and an attorney was promptly retained to protect Dr. Gund’s interests. The discovery process then began.

When Dr. Gund treated Sue, he was using a new electronic medical record system that had a number of shortcomings, including no informed consent form, no patient history form, no HIPAA form and no other documentation completed by the patient. Dr. Gund's records were also silent on Sue’s past cervical spine surgery. Dr. Gund believed he would have asked Sue about her surgical history, but there was no documentation that he did so.

Patient and Spouse Testify

Sue testified at her deposition that she and her husband were both present at her office visit with Dr. Gund on March 13, 2019. She testified that both she and her husband immediately told him that although she had neck and shoulder pain, she did not want Dr. Gund to touch her neck because she had had neck surgery the previous year. She claimed that Dr. Gund agreed to this. She further testified that while in the treatment room, Dr. Gund had her lie on the examination table where he massaged the area between her mid-back and the base of her neck. The plaintiff denied that Dr. Gund adjusted her on March 13, 2019 and following the treatment, the plaintiff testified that she left the office feeling a little bit better.

The plaintiff testified that when she returned to Dr. Gund on March 15, 2019, she reminded him that she did not want her neck adjusted. However, she testified that Dr. Gund took her back into the treatment room, had her lay supine on the table, and pulled up and twisted her neck. Sue testified that she screamed from the immediate pain in her neck and right arm, and she was assisted off the table. At that point, Dr. Gund suggested that she go home and ice her shoulder and arm. The plaintiff testified that she tried icing her arm over the next two days, but because she continued to experience excruciating pain and weakness, she made an appointment to see Dr. Blue.

The plaintiff’s husband, a retired fire chief, was also deposed. He corroborated his wife’s testimony that she informed Dr. Gund on March 13, 2019 and March 15, 2019 about her past neck surgery and her request not to have her neck touched. He testified he wasn’t in the treatment room during either office visit, so he didn’t have firsthand knowledge about Dr. Gund’s treatment. However, he recalled hearing his wife scream and that he ran into the treatment room on March 15, 2019. He also testified that Dr. Gund advised his wife to apply ice to her arm but he did not suggest she seek further medical attention.

Dr. Gund Questioned

Dr. Gund was questioned extensively about his documentation and his new electronic record-keeping system. He testified that before the new system, each patient would fill out a questionnaire that asked about the patient’s medical and surgical history. His documentation also included consent and treatment forms. When he switched to the electronic record-keeping system, he no longer had the patient fill out any questionnaires, and he also abandoned the use of consent and treatment forms.

Dr. Gund testified that he did ask Sue about her spinal surgery history. Based on the fact he did not make any notation, he was certain the plaintiff did not disclose the previous neck surgery. If that information would have been conveyed to him, Dr. Gund testified he was certain it would have been documented in his notes.

When questioned if he had noticed Sue's surgical scar on her anterior neck, Dr. Gund responded that he had not. The plaintiff’s counsel produced a photograph displaying a prominent neck scar shortly after the plaintiff was dismissed from Dr. Burns’ care in February 2018. In response, Dr. Gund said the scar must have faded in the 13 months between when the photo was taken and when he first treated Sue.

In addition to the lack of records on the plaintiff’s surgical history, there were other inconsistencies in the March 13 and March 15 records. The plaintiff's counsel attempted to capitalize on these inconsistencies, calling into question the reliability of Dr. Gund’s entire chart. For example, Dr. Gund testified he performed orthopedic testing, as recorded in a note on March 15. He contended that he would have done similar orthopedic testing on March 13 even though it wasn’t recorded. Dr. Gund conceded that other tests and evaluations performed on both visits were not in his records.

The plaintiff’s counsel questioned Dr. Gund about his treatment. Contrary to what Sue testified, Dr. Gund contended that he adjusted the plaintiff on March 13 and March 15. Dr. Gund testified that he identified subluxations at C5–6—the level where the plaintiff had fusion surgery—and he adjusted this level to correct the subluxations. Dr. Gund acknowledged that had he known about the cervical fusion, he may have adjusted other cervical spine areas but not the fused level.

Dr. Gund’s deposition concluded with him emphatically denying that the plaintiff or her husband ever told him about the prior neck surgery. He also denied the plaintiff and her husband requested that he not adjust her neck.

Defense Experts Weigh In

Dr. Gund’s defense counsel retained neuroradiologist David Veys, MD, to review and compare MRIs taken on Oct. 10, 2017, and March 17, 2019. Dr. Veys’ interpretation of the Oct. 10 MRI was virtually identical to that of the reading radiologist. Dr. Veys saw disc herniations at C5–6 on the right and C6–7 on the left. The C4–5 level had mild degenerative changes but no disc protrusion or bulge.

On the March 17 MRI, Dr. Veys saw definite evidence of disc herniation at C4–5, as well as the hardware placed for the C5–6 and C6–7 discectomy and fusion in October 2017. He noted there was a definite change at C4–5 between October 2017 and March 2019.

Dr. Veys described the disc herniation at C4–5 as acute and as a condition that was definitely less than 60 days old. He believed it could have occurred just five days before the imaging study, which was when Dr. Gun treated the plaintiff. He based his assessment on the fact that water had not yet been drawn out of the disc, which suggested the injury was acute.

Chiropractic and neurosurgical experts were retained by the plaintiff and the NCMIC defense team. Although several healthcare providers were retained to provide supportive opinions for Dr. Gund’s defense, few agreed to do so.

The neurosurgeon retained for the defense opined that Dr. Gund did not cause the plaintiff’s disc herniation at the C4–5 level nor the need for the surgery. His reasoning was weak at best. He testified that he believed that a diversified adjustment was simply a palpation technique. Therefore, it would not cause enough force on the disc to result in a disc herniation.

The doctor of chiropractic retained by the defense team testified that Dr. Gund’s overall treatment met the standard of care. However, he agreed a chiropractor should ask about spinal fusion surgeries before treatment and note that information in the record. He opined that if Dr. Gund did not do that, he did not meet the standard of care.

Assessing the Case

Sue earned $20 per hour as an exterminator. She didn’t return to work after Dr. Kay’s surgery. If a jury bought into the argument that she suffered a permanent wage loss claim and would have worked another eight years at $40,000 per year, then the value of her permanent wage loss was $320,000. Additionally, her medical bills totaled $95,000.

The plaintiff claimed that all of her ongoing problems, including pain, numbness, weakness and decreased range of motion in her right arm and hand were related to Dr. Gund’s treatment. She claimed these problems prohibited her from engaging in activities that would involve significant use of her hand. The NCMIC-retained defense counsel expected that the plaintiff would ask a jury for the jurisdictional limits of $350,000 for noneconomic damages. Defense counsel also placed a value less than $25,000 for the loss of consortium claim by the plaintiff’s husband.

Dr. Gund’s attorney believed it was more likely than not that a jury would conclude that he either failed to ask the plaintiff about her surgical history or failed to record it. As a result, Dr. Gund forgot about it by the time of the second office visit. Further, Sue’s husband would testify at trial he heard his wife request he not touch her neck at the second visit. For these reasons, he believed there was only a 10 to 15% chance he could successfully defend Dr. Gund.

After giving his written consent to settle, Dr. Gund and the plaintiff agreed to mediate this claim. After a full day of mediation, the plaintiff did not move off of the policy limit demand of $500,000. An offer of $200,000 was offered on behalf of Dr. Gund, but it was rejected, and an impasse was declared.

At a case management conference approximately five months after the mediation, several offers and counteroffers ensued to no avail. At this point, defense counsel believed $350,000 was the plaintiff’s lowest number, but the NCMIC claims representative tested the waters with a $250,000 counteroffer. This offer was rejected by the plaintiff’s counsel with the message that they might consider a higher figure.

One week later the defense team offered the plaintiff $300,000 with the message that this was their final offer. After additional back and forth negotiations, the plaintiff agreed to accept $300,000 to settle this lawsuit. NCMIC’s legal expenses to defend this claim were more than $110,000.

What Can We Learn?

Don’t Make Excuses: Dr. Gund harmed his case by attempting to blame his shortcomings on his electronic record-keeping software. Instead, it was Dr. Gund’s responsibility to:

  • Ensure his software met or exceeded minimal standards for compliance and competency.
  • Know if informed consent was required by state mandate. (Informed consent is generally advisable regardless of any mandate.)
  • Obtain and record the patient’s past history and clinical records, especially due to the patient’s history of past surgeries.

Consider a Hands-Off Approach: Sometimes the best treatment is no treatment, particularly when the literature suggests a manipulation may be contraindicated. In this case, Dr. Gund failed to contemplate whether treatment in post-surgical areas was advisable.

Know When to Write it Down: If litigation is in play, records become an integral part of the litigation process and a huge component of any case’s success or failure. Although often a doctor’s custom of care can be discussed, without the support of the records, statements that “I would have done it” can be perceived by the plaintiff’s counsel and the jury as self-serving.

Use Clinical Reasoning: This case represents an example of poor clinical reasoning because Dr. Gund failed to:

  • Obtain past medical and surgical records, which were available 
  • Obtain past MRIs and X-rays, which were available
  • Provide and obtain informed consent
  • Document physical findings
  • Exercise prudent patient management plan of a complex case
  • Discuss and document the patient’s warning about avoiding treatment in certain areas
  • Document any rationale at the time that supported his clinical judgment

Avoid “Robo Care”: The plaintiff was prepared to show the jury Dr. Gund’s office was set up to generate volume rather than to deliver quality care through use of proper protocols and present-time consciousness. Additionally, Dr. Gund’s inadequate office management software exacerbated the problems.

Understand the Defense: The defense team had to overcome many barriers including the fact that Dr. Gund’s care could not be supported by his colleagues. Due to the skill of the claims and mediation experts, the case was able to be resolved for an amount below his policy limits. (Most states require a certain level of minimum coverage as a condition of licensure so check with your board regarding the state’s policy limits requirements.)

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