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Lost Records Challenge Defense

Derrick Newell's case against his DC went to court but a tornado blew his defense out of the water. Find out how a natural disaster threatened to upend the case.

On June 25, 2015, 44-year-old Derrick Newell, a tobacco farmer, hurt his low back while attempting to step up onto the rear bumper of his truck. He lost his footing when he fell backward onto the ground and landed on his buttocks.

That same day, Derrick visited his primary care physician, Reginald Torrison, MD, reported his fall and complained of low back pain and stiffness. Dr. Torrison ordered plain film X-rays of the lumbar spine, which were negative for any fractures or dislocations.

Dr. Torrison diagnosed a lumbar sprain/strain and prescribed pain medication and home exercise therapy. He instructed Derrick to restrict his lifting and return in one week. Derrick returned to Dr. Torrison with only slight improvement of his symptoms. After that, Derrick chose not to return to Dr. Torrison. Instead, he decided to seek chiropractic care.

Patient Sees a Doctor of Chiropractic

Derrick presented to Delbert Ringe, DC, on July 21, 2015, and completed an intake form. Dr. Ringe obtained a history that Derrick fell a month earlier and that he lifted weights regularly. Derrick complained of low back pain and stiffness that started when he fell. Although the intake form included a question about whether another healthcare provider had been consulted, Derrick did not disclose to Dr. Ringe the prior X-rays and care he received from Dr. Torrison.

Dr. Ringe conducted the straight leg raise, neck flexion and extension examinations that elicited restricted movement and slight to moderate pain. Lewin’s and Kemp’s also were conducted by Dr. Ringe and also elicited some pain. In addition, Romberg, Soto Hall, Fabre and Lindner examinations conducted by Dr. Ringe were all negative. Based on his clinical findings, Dr. Ringe did not take X-rays.

Dr. Ringe identified subluxations at C4, C7, L4 and L5. His treatment plan included the administration of mechanical traction, massage and side-posture manipulation to the lumbar spine.

Patient Improves but Symptoms Change

Derrick returned to Dr. Ringe the next day with a slight improvement in his low back pain and stiffness. However, he now reported new complaints of numbness and tingling down his right leg.

In light of these new symptoms, Dr. Ringe took AP and lateral lumbar spine X-rays. These images again did not show any acute fracture but instead showed decreased disc height space and facet degeneration that were suggestive of a possible disc herniation. Dr. Ringe believed this was indicative of sciatic pain, and he recommended continuing with the same treatment.

Derrick returned to Dr. Ringe on July 25, 2015. His low back pain and stiffness were not resolved but slightly better. He no longer reported sciatic pain or numbness. However, he now complained of difficulty with moderate lifting and difficulty moving his arms and legs after weightlifting. Given the circumstances, Dr. Ringe thought Derrick was improved and the new complaints were the result of fatigue from weightlifting. Dr. Ringe recommended to Derrick that he continue with chiropractic care.

After two more visits in which Derrick reported slight improvement and no sciatic pain, Derrick returned to Dr. Ringe for a final time on July 29, 2015. His low back pain and stiffness were again improved, but not completely resolved. Derrick still reported sore muscles and difficulty with lifting weights.

Dr. Ringe believed that Derrick had responded positively to chiropractic treatment and had improved sufficiently. Therefore, Dr. Ringe discharged him from further care. Dr. Ringe noted that Derrick had progressed to the point of only experiencing occasional discomfort, had returned to moderate physical exercise, and did not have signs of a disc herniation or a permanent condition.

Records Destroyed in a Tornado

In August 2015, Dr. Ringe’s office records, along with his patient records, were lost in a tornado. That same month, Derrick returned to his primary care physician, Dr. Torrison, reporting that he still had persistent pain from his fall that had not been resolved by chiropractic care.

Consequently, Dr. Torrison referred Derrick to a neurosurgeon, Vern Erickson, MD. Upon his visit to Dr. Erickson, Derrick reported numbness and tingling down his right leg and into his foot that began and worsened during chiropractic care.

Dr. Erickson ordered an MRI that showed a moderate para-central disc herniation at L5-S1 impinging on the S1 nerve root. As a result, Dr. Erickson ordered a few-week course of physical therapy, as well as epidural steroid injections.

A few weeks later, Derrick returned to Dr. Erickson and reported that these treatments did not reduce the numbness and tingling or resolve his pain.

At that point, Dr. Erickson scheduled Derrick for surgery and performed a laminectomy, foraminotomy and discectomy at L5-S1. The surgery resolved Derrick’s pain. However, it left him with minor, permanent weakness in his right leg.

Claim Ensues

In July 2016, Derrick Newell filed a claim of malpractice against Dr. Ringe. The complaint alleged Dr. Ringe failed to:

  • Obtain and record a proper history. Derrick claimed he told Dr. Ringe about his prior care with Dr. Torrison and the X-rays he took.
  • Perform and record a proper physical examination. Derrick alleged Dr. Ringe didn’t take into account a progression of his symptoms.
  • Obtain informed consent. Derrick alleged Dr. Ringe didn’t explain risks associated with lumbar spine adjustments.
  • Appropriately refer the patient for follow-up care. Derrick alleged that, despite indications of an aggravation or new disc injury, Dr. Ringe failed to refer him to a specialist.
  • Derrick Newell further contended that chiropractic care had worsened his back pain and caused a disc herniation that required surgery. Damages included past and future medical bills, past and future pain and suffering, and permanent injury.

Doctor’s Credibility Becomes Even More Critical

A chiropractic expert retained by Derrick testified to multiple breaches in the standard of care by Dr. Ringe. Primarily, this expert’s focus was on the lost records and assumption that “if it wasn’t recorded, it didn’t happen,” even though the records were lost in the tornado.

Furthermore, the plaintiff enlisted the testimony of Dr. Erickson, the treating neurosurgeon. Dr. Erickson alleged that Dr. Ringe’s treatment significantly contributed to, and likely caused, Derrick’s disc herniation and need for surgery.

A chiropractic expert retained by NCMIC offered his expert opinion that Dr. Ringe met the applicable standards of care. Also, a NCMIC-retained expert neurosurgeon opined that it was unlikely that Dr. Ringe’s treatment caused or worsened Derrick’s condition and need for surgery. In light of Dr. Ringe’s records being lost in the tornado, the NCMIC-retained experts had to rely on the verbal testimony of others and subsequent medical records to render their respective opinions.

Defense Focus and Assessment of the Case

Dr. Ringe’s defense team believed it had compelling defenses to argue based on the standards of care and causation. However, there were significant concerns about the potential outcome of the case. Primarily, the defense team was apprehensive about Dr. Ringe’s lost records, as well as the emphasis a jury might give to the testimony of the treating neurosurgeon (Dr. Erickson) who was not a paid expert.

The defense team believed that Dr. Ringe and Derrick Newell would both appear credible and perform well when giving testimony before a jury. Also of concern was Dr. Ringe’s fairly low policy limit of $250,000, which might hinder negotiations.

The defense attorney retained by NCMIC to defend Dr. Ringe indicated there was a 40% chance of successfully defending the case at trial. This percentage took into account the lost records and unfavorable testimony expected by the treating physician.

In the event of a verdict favorable to the plaintiff, Dr. Ringe’s NCMIC retained defense counsel believed an award between $250,000 and $400,000 should be expected. This meant there was a good chance that Dr. Ringe’s policy limit would not be enough to protect him from personal financial exposure should the jury find for the plaintiff.

Case Goes to Trial with New Allegations

During the litigation discovery process, the plaintiff demanded Dr. Ringe’s policy limit of $250,000 to settle the case. While taking into consideration his potential personal financial exposure above his NCMIC policy limit, Dr. Ringe believed he did nothing wrong and wanted the chance to defend his good name. Therefore, he chose to have the case go to trial and not attempt to settle out of court.

The case then proceeded to trial on April 19, 2020. During the trial, Derrick’s retained chiropractic expert presented poorly. He was evasive in his answers to questions asked by the NCMIC-retained defense attorney.

What’s more, this expert failed to show any sympathy toward Dr. Ringe about the devastation to his practice as a result of the tornado. His flippant attitude was that it didn’t matter what the circumstances were—Dr. Ringe was still responsible for maintaining complete and accurate records. Consequently, this expert’s harsh testimony hurt his credibility.

Upon cross examination, the plaintiff’s treating neurosurgeon, Dr. Erickson, conceded that the plaintiff’s fall, the degenerative condition of his spine and/or weightlifting could have contributed to the plaintiff’s need for surgery. This reflected some wavering on his part from his initial stance that Dr. Ringe caused the patient’s injury.

Toward the end of the plaintiff’s case, and in an effort to discredit Dr. Ringe and infer that he may have purposely destroyed his records, the plaintiff’s attorney motioned the court to allow the plaintiff to enter evidence that Dr. Ringe’s office was not damaged or destroyed by the tornado. This evidence was highly questionable. It was based on a random posting on a website by an unknown person who said that Dr. Ringe’s office was open after the tornado. Fortunately, Dr. Ringe had extensive evidence to the contrary, which included photos of the damage, as well as detailed insurance claim forms.

Although the court allowed the jury to hear the Derrick’s allegation, it was quickly refuted by the defense team due to the doctor’s credibility and the compelling evidence that the records were lost due to the devastating damage the tornado inflicted on Dr. Ringe’s practice, prior to the lawsuit even being filed.

The Defense Counters

In contrast to the inconsistent testimony provided by the treating neurosurgeon, Dr. Ringe and his retained chiropractic and neurosurgery experts all presented well and did not waiver from their testimony given during discovery. They all reaffirmed that Dr. Ringe provided proper chiropractic treatment and did not deviate from the standard of care. This testimony served to bolster Dr. Ringe’s credibility, which in absence of the records, became the centerpiece of the case.

At the close of the case, the Derrick’s attorney asked the jury to award $500,000. After three hours of deliberation, the jury unanimously returned a verdict favorable to Dr. Ringe that he was not negligent with his care and treatment of Derrick Newell. NCMIC’s costs to defend this case totaled $167,321.


What Can We Learn?

Credibility and jury decisions. It’s critical to keep good records. Yet, this case had none due to a natural disaster. (The possibility of the physical loss of records is another benefit of electronic health records with back-up systems.) The admonition in court proceedings is to never ask a question you do not know the answer to. In this case, the plaintiff’s attorney harmed his own credibility and that of his client by suggesting that Dr. Ringe’s records were not destroyed by a tornado. The fact that they were destroyed was easily validated, supporting Dr. Ringe’s position. In addition, because Dr. Ringe was credible in his testimony, the jury believed him when he said he was not aware of the plaintiff’s prior medical care and films.

Consent to settle. At NCMIC, a doctor has the final decision to settle—or not settle—a case. Each case is reviewed on its own facts and risk/benefits, much like the informed consent discussion you have with patients. In this case, Dr. Ringe’s decision not to settle was complicated because his low limits of coverage hindered serious negotiations and the odds of a defense verdict were initially estimated at only 40 percent. The probability of an excess verdict (amount over Dr. Ringe’s coverage limits) made the decision especially difficult. Dr. Ringe decided he wanted to clear his name despite the odds. Fortunately, the DC was able to prevail due to a top-notch defense counsel and a skilled claims team, as well as the plaintiff counsel’s courtroom conduct that served to benefit the defense.

Experts versus experts. Cases often come down to a battle of the experts. It is important to select experts who are dependable, fair, impartial and—above all—credible. In this case, the experts for the plaintiff changed their views when confronted with skilled questioning by defense counsel. Moreover, the experts for the defense consistently presented the same opinion at deposition and at trial. Consistency often comes across as conviction and credibility to a lay jury. The jury recognized not only the plaintiff’s inconsistency in position regarding causation, but also in the callous and absurd position taken by his chiropractic expert.

Informed consent. Most malpractice cases today are filed with an allegation that the doctor did not provide informed consent, and this is becoming an increasingly common contention. Doctors would be wise to consult their state association to determine if they are meeting their state’s mandatory requirements for informed consent. Regardless, it’s a good tool to educate patients and confirm the discussion occurred.

Sufficient coverage. A doctor decides how much insurance coverage to obtain before a lawsuit is even filed. However, this amount becomes crucial when a case is tried. If the case involves serious injury or death, especially of a young person or one with financial dependents, the possible verdict award quickly grows. This can mean exposure to the doctor. Also, some state boards set minimum coverage amounts the doctor must maintain or be subject to disciplinary action.

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