Frequent Patient Turns Plaintiff in Lawsuit Against DC
Jennifer Mullen was looking for relief from pain in her upper back, chest and shoulder. After multiple visits to Dr. Carlos Rex, Jennifer claimed the DC touched her inappropriately.
Posted in Case Studies on Wednesday, August 10, 2022
Jennifer Mullen sought treatment from Dr. Carlos Rex for pain in her upper back, chest and shoulder. After performing an exam and ordering x-rays, Dr. Rex treated Jennifer with chiropractic adjustment and worked on her bilateral pectoralis regions.
After being treated a dozen times over the course of six months, Jennifer reported improvement, saw benefits from the regular treatments and had even rescheduled multiple times with Dr. Rex.
At her last visit, Jennifer alleged that while performing manual therapy, Dr. Rex had touched her breast inappropriately. She made no comments to the doctor or the office staff after the appointment, but later filed a police report.
An officer arrived midday, unannounced, at the clinic and asked to speak with Dr. Rex. When confronted with Jennifer’s allegations, Dr. Rex was shocked and didn’t understand how Jennifer had misinterpreted the care he’d provided. He tried to explain the care, justify his treatment and offered an explanation about how mistakes or misunderstandings could have occurred. The discussion with the police officer was further complicated by the officer’s lack of understanding of chiropractic care and treatment and anatomy involved.
Dr. Rex was not a native English speaker and didn’t understand all of the police officer’s questions. He didn’t know how to explain himself without creating further misunderstandings. His cultural background also impacted their encounter.
In the officer’s report, Dr. Rex’s expressed apology to the patient was interpreted as a confession. The officer also opined about Dr. Rex’s behavior and subsequent attempts to clarify his statements.
A complaint was also filed with the chiropractic board at that time. NCMIC retained an attorney to defend Dr. Rex with his board action. This attorney also collaborated with Dr. Rex's criminal lawyer to make sure the defense in both cases was coordinated and similar. He was successful in having both the criminal and licensing complaints dismissed.
A Lawsuit Ensues
Two years later, a lawsuit was filed against Dr. Rex and the clinic where he was employed. Jennifer and her husband alleged the clinic failed to properly supervise Dr. Rex. The couple was asking for more than $250,000 for pain and suffering. Dr. Rex denied the allegations and asserted he was providing the same treatment he had provided at previous appointments. The clinic denied the couple’s allegations and asserted that Dr. Rex was well-trained in the therapy he was using and had no other patient complaints in his professional history.
What was different about Jennifer’s last visit to Dr. Rex? She had presented with similar symptoms and findings that she’d reported in the past, and Dr. Rex provided the same treatment. But there were key differences, according to Jennifer. First, her husband was out of town on a long assignment, and she remained at home taking care of their small children. Second, she wore different clothing on the date of her last appointment and alleged Dr. Rex reached under her clothing while providing treatment.
Defending Dr. Rex
Discovery was difficult, as much of Jennifer’s other medical treatment, including past mental health care was provided out-of-state, and her memory regarding her other providers was vague. Resolution of the case was hampered by her counsel’s insistence that they were protecting potential victims by pursuing their claim against Dr. Rex.
Defense was complicated by the same language and cultural differences that led to misunderstandings during Dr. Rex’s initial interview by the police. Dr. Rex and his family encountered personal and health stressors during trial that made litigation even more overwhelming for him.
The Case is Settled
More than four years after Jennifer’s last treatment, Dr. Rex agreed to settle the case for a nominal amount. The case against the clinic was dismissed as part of the settlement.
Agreeing to a settlement can be a difficult decision for any practitioner, as each must weigh the risks and benefits of pursing a defense verdict against the risks and benefits of certainty and closure of the case. Of significance, Dr. Rex will have to report the settlement in future attestations, but that was a risk he was willing to assume to move forward with his life.
What Can We Learn?
A visit from law enforcement, especially unplanned, can be stressful. If a police officer or investigator asks to speak with you, politely obtain the following information: their name, who they work for, what they would like to discuss and how you can reach them. Calmly tell them you need to contact your counsel to better understand your rights and responsibilities before you speak to anyone regarding a patient. Even if there are no accusations against you personally, you need to consider HIPAA and other confidentiality requirements, and the broader implications of any investigation that is pending. If you are asked about a member of your staff, the same advice applies.
Be prepared for the unexpected. Have the names and contact information for: 1. Your malpractice carrier, 2. A criminal attorney who understands health care issues, and 3. An employment/business attorney who understands health care practice issues, if you are the owner of your business.
If you do not know whether you need a criminal defense or employment law attorney, your carrier may be able to refer you to local defense counsel who may also handle these matters, or who may be able to provide you with referrals to other attorneys in the area.
Speak to your claims representative and/or attorney before you speak with anyone else. Comments you make to others, including staff and colleagues, are likely not protected and may influence the remainder of the case, as well as your employment.
If you are the owner of a clinic, your clinic can be named as a defendant in a lawsuit. In order to ensure defense and possible indemnity coverage, you should obtain the following insurance coverage for the clinic: malpractice, general liability and employment practices liability coverage. Over the years, we have seen several doctors surprised when their business is named in a suit, but they are not individually named, and they do not have any available coverage. Check with your provider regarding whether entity coverage is on your policy.
Communicate with the patient each time you will be working near sensitive areas and explain what you are doing. Use diagrams or demonstrate on yourself or a model and point out the anatomical regions. Ask the patient for feedback throughout the treatment.
If you are treating a member of the opposite gender near sensitive areas, consider the following options:
- Invite them to bring a chaperone of their own choosing.
- Leave the door open or see if a staff member is available to step into the room.
- Offer and/or use additional gowns, sheets or towels for the patient’s comfort level and coverage.
- Ask the patient to wear appropriate clothing to their appointments and do not reach under clothes to access treatment area.
- Ask the patient to move their own breast tissue, or self-guard, by placing their own hand over sensitive areas or between where you are working and the sensitive area.
- If treatment is anticipated in sensitive areas, do not schedule visits before or after traditional office hours and make sure other staff or colleagues are present in the clinic.
- Pay attention to your intuition and any red flags and refer the patient to another doctor or therapist if you have concerns.
About the Authors
Adina Matasaru is a shareholder with Harrang Long Gary Ruddick PC in Portland, Oregon. She divides her time between litigating on behalf of her clients and counseling them on creative solutions to complex business matters and the prevention of liability. She is best known for her defense of health care professionals before their licensing boards and in malpractice claims. That work has allowed her to develop a deep understanding of the practices and businesses of chiropractors, naturopaths, medical doctors, nurse practitioners and other health care providers, which she puts to use in advice on regulatory compliance, risk management, and general business matters.
Rebecca Tobias, senior paralegal at Harrang Long Gary Ruddick PC, provided invaluable assistance with this case study.