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Herniation Complicates Patient's Case Against DC

Brett Stern treated with William Petra, DC, hoping to alleviate his neck, shoulder and arm pain. Was a preexisting herniation the cause and did the DC's treatment make it worse?

Brett Stern presented to William Petra, DC, in April 2021 complaining of recent neck pain and stiffness, and pain radiating into his left shoulder and arm. Dr. Petra’s evaluation of Brett included positive cervical distraction and compression tests, and his working diagnosis was cervical radiculopathy.

An April 2 X-ray showed spondylosis at C5–6 with foraminal osteophyte production and bilateral foraminal narrowing. Brett was referred for a CT scan in lieu of an MRI because he had cardiac stents placed recently. An April 8 CT showed bilateral joint hypertrophy at C5–7 and mild bilateral neural foraminal stenosis at C5–6. Also, an April 15 EMG nerve conduction study revealed bilateral C5–6 radiculopathy and carpal tunnel syndrome.

Dr. Petra treated Brett with light manipulations and intervertebral differential dynamic (IDD) decompression therapy until late May 2021, when Brett’s condition worsened.

A Lawsuit Ensues

Brett claimed that Dr. Petra was negligent in treating him with the decompression therapy, considering his symptoms, and that the treatment caused his herniation, cord compression and need for surgery.

To challenge causation, Dr. Petra’s counsel retained a neurosurgeon and a neuroradiologist. The neurosurgeon said Brett was a candidate for conservative chiropractic care. He explained that Brett responded well to conservative chiropractic care at first, but later required surgery to remedy a long-standing neck and back problem that worsened during the treatment period but was unrelated to the chiropractic care. He also said Dr. Petra’s decompression therapy could not have caused Brett’s C5–7 herniation because Brett’s spine was already compressed and because the IDD therapy was specifically designed to relieve such compression.

Dr. Petra’s neuroradiology expert referenced the films taken before the treatment period and used them to discuss the preexisting condition that worsened, namely the herniation. He noted that the April 2 X-ray showed straightening of the cervical spine, with mild spondylosis. He found that the April 8 CT revealed soft tissue in the anterior epidural defect on the right side of the thecal sac and no high-density material in the spinal canal, supporting a finding of extruded disc material at C5–7.

To attack liability, Dr. Petra’s counsel retained a chiropractor versed in IDD decompression therapy. That expert explained that Dr. Petra’s neurologic and orthopedic exams of Brett were within chiropractic standards. He noted that Dr. Petra’s manipulations of Brett’s spine and use of IDD decompression were appropriate based on the foraminal stenosis and compression at C5–6. He also referenced literature supporting the use of decompression therapy for disc herniations, degenerative disease and spinal stenosis: in other words, Brett’s condition.

Defense Gives Compelling Testimony

Brett said he was taking OxyContin, Oxycodone and Lyrica for pain that limited his movements and activities. He also claimed that he suffered from imbalance, had trouble lifting certain objects, and could not play with his son or do yard work. Shortly before trial, Dr. Petra’s counsel retained an investigator whose surveillance showed Brett fighting with another man, playing with his son, standing for long periods, and running, walking and bending with no issue. Counsel showed that footage to the jury.

Dr. Petra testified well at his deposition and at trial. He explained chiropractic simply and passionately. He discussed how he examines patients and develops care plans for them based on the findings. He explained the tests he uses and the films he requires before treating patients. He referenced spinal models to enhance his testimony. And he explained his training and experience with decompression therapy, how the IDD machine works and why Brett was a candidate for it and could not have suffered injuries as a result of being treated on it.

Dr. Petra taught the jury how he treated Brett with light spinal adjustments and IDD therapy. He discussed how Brett responded to that care in terms of his pain level, which decreased from 8/10 to 5/10. He explained that although Brett had two flare-ups (muscle spasms) during the treatment period, his pain level continued to decrease from 5/10 to 4/10 until May 26, when his pain level increased to 6/10.

Treatments Questioned

Brett’s chiropractic expert criticized Dr. Petra for not securing Brett’s informed consent for manipulative and decompression therapy. He believed the decompression therapy caused Brett’s C5–6 disc herniation. Dr. Petra’s counsel deposed that expert and had him concede that he had never used a decompression machine or known of one causing a herniation and had understood that it was meant to treat herniations. He also conceded that the records and testimony supported that Brett benefited from the decompression therapy.

Brett’s neurosurgery expert also believed that Dr. Petra’s decompression treatment caused Brett’s herniation and cord compression, leading to his surgery. Dr. Petra’s counsel also deposed that expert, who could not identify when or how the IDD therapy caused the herniation or what level of magnitude it had on Brett’s spine. He said he could not diagnose a herniated disc on a CT but agreed that Dr. Petra’s neuroradiologist’s interpretation of the CT would support a preexisting herniation that evolved during Dr. Petra’s care of Brett.

The Verdict

Brett conveyed a high settlement demand based on the severity of his injuries and his claimed limitations; Dr. Petra refused to settle believing his care was proper and non-injurious.

The trial lasted three weeks and ended with a unanimous defense verdict. The jury believed Dr. Petra’s neuroradiologist’s opinion that the herniation was present on the April 8 CT scan, despite the initial radiologist’s report not mentioning it. The jury understood Dr. Petra’s neurosurgeon’s explanation that the herniation progressed during the treatment period despite—and not because of—Dr. Petra’s chiropractic treatments. The jury also accepted Dr. Petra’s chiropractor’s testimony on how and why Brett was a candidate for decompression therapy and manipulations, even with a cervical spine herniation present.


What Can We Learn?

Herniation can preexist a patient's care by a chiropractor. From time to time, a pre-existing condition can worsen during care, but that doesn’t mean negligent treatment was rendered. The defense goal in a case like this one is to show that although the condition is diagnosed after the care, it is also unrelated to the care.

If you suspect a herniation, make sure the patient understands what it is and what the course of treatment looks like. Manage expectations appropriately so the patient feels well-informed. Some patients won’t respond well without well-defined next steps.

Informed consent. Informed consent is not merely a signed form but rather a two-way process in which patients are asked if they understand the risks of care and are given an opportunity to ask questions. The patient must understand the information well enough to be able to relate it back to you.

Disc herniation is a defensible issue with good records, patient history, thorough examination and informed consent. A good defendant doctor can explain the care and the plaintiff's preexisting condition, with concessions from the plaintiff’s experts and with a simple causation theory.

Good surveillance is in best interest in the defense. If you suspect your patient is overstating their injuries and limitations, talk to your attorney. They may suggest surveilling the patient. Caution: Do not watch, follow or otherwise surveil the patient yourself. Leave the work to the professionals.

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