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Dynamic Chiropractic Canada – May 1, 2009, Vol. 02, Issue 03
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Order in the Court

By Greg N. Dunn, DC

I have spent a considerable amount of time in courtrooms lately at trials of chiropractors accused of negligence. An unusual confluence of events occurred this year whereby three trials began in various parts of the country almost simultaneously.

The circumstances in these cases are all quite different and unique, but there is a common thread that links them. In all of the cases, the outcome from treatment was unexpected and unintended for both the doctor and the patient.

While sitting in a courtroom is very tedious, it provides an amazing window of insight into how we, as professionals, get ourselves into trouble. This recent courtroom experience has reinforced my already established opinion that poor communications and poor record-keeping are the hallmarks of most of the cases that end up going to a trial. This runs contrary to what most people think.

Most people conceptualize that the treatment must have been substandard or not appropriate for the patient's presenting complaint. While the allegations against the doctors range from not having obtained informed consent to misdiagnosis and inappropriate care to failure to refer, the conflict almost always comes down to a "disconnect" between the doctor and patient. 

So, why do they end up in lawsuits and then in court? The cases I am currently working on are the result of treatments given seven or eight years ago. The involved doctors are all experienced and ethical chiropractors and, in my opinion, did nothing wrong. But in each case, there were instances in which the doctor may have forgotten to record elements of the history or examination findings (negative and positive), even though the questions were asked and the tests were performed at the time. They made a diagnosis and differential diagnosis, but they sometimes kept it from the patient or did not record it clearly in the record. They obtained informed consent, but may have missed recording some of the critical steps in the process. While these gaps in communication and record-keeping did not ultimately cause the unintended outcome, nor did they contribute to that unintended outcome, they provided an opportunity for the plaintiffs to be critical of the care they received and to justify suing the doctors.

On the other hand, I have also noticed extreme arrogance and piety in those rushing to judge practitioners as experts. If the stakes weren't so high, it would be quite amusing. In a recent bit of testimony, an outspoken advocate of the plaintiff's position (as opposed to an independent expert advising the court) said that no doctor should make a treatment decision without obtaining a careful, detailed history and recording it. He admitted to taking a history of this plaintiff for the purposes of his report. When asked to produce the notes of his history, he sputtered and coughed and could not produce them. He did not look good.

This same expert made an opinion on the causation of the plaintiff's injuries in this case without the benefit of having one of the treating specialist's reports (which disagreed with his opinion). When confronted with this, the expert said it didn't matter to his opinion. So much for objectivity! An example of bad form, to say the least.

Another expert wrote an expert report against a doctor he had experienced a personal conflict with in the past. He was caught leaving vital information out of his report. Even if he had not had a previous conflict with the doctor he was critiquing, this apparently intentional omission was a glaring error. Yet another example of arrogance to the extreme was the expert who quoted a case report to substantiate his report. He said it was very instrumental in his opinion. There was only one problem with that statement: He wrote his report on causation five years before he ever read the case report!

What are the take-home messages from all of this? First, we are all vulnerable. Even the best doctor can be criticized for some aspect of patient care on any given day. It is not necessary for a professional to be perfect, but they must conform to the standard of their peers. Consistency in approach is also very important. If a doctor always obtains informed consent in a certain manner, but on one occasion forgets to document that process, it is not difficult to believe the doctor when they say they obtained it in that single case.

Making sure you document that you have discussed the intended treatment with the patient is also crucial. In each of the cases currently in court, the patient has denied there was a proper explanation of what the doctor was going to treat and what the treatment was intended to do. If you are treating an area remote from the area of primary complaint, you must document your examination of that area, the findings, and diagnosis of that complaint and the primary complaint. It is difficult defend the actions of the practitioner when there is a problem associated with care in an area that was not examined and diagnosed.

In closing, without hesitation, I would suggest that no doctor likes to be sued, and no doctor likes having their credibility and skills as a professional questioned. The amount of stress generated by these encounters is extreme. I was recently cross-examined on a matter relating to a lawsuit. While there was no direct attack on my professional credentials, it was still a very intense and unpleasant process. I can only imagine how it would feel to someone who was having their skills as a chiropractor questioned.

Trials are also public events. There are times when media are involved. This makes it even more unnerving. In one of these trials, the intensity was so great that one of the lawyers for a plaintiff was taken from the courtroom by the paramedics. Thankfully, it turned out to be something minor, but it certainly was dramatic. If you can take very simple measures to protect yourself from being drawn into a lawsuit, it makes complete sense to do so. In any case, if you are sued and you have taken all the right steps to protect yourself, it will make your day in court much easier than it otherwise would be.

Dr. Greg N. Dunn graduated from Canadian Memorial Chiropractic College in 1976. A past president of the Manitoba Chiropractors' Association and the Canadian Chiropractic Association, he served on the board of the Canadian Chiropractic Protective Association from 1990 until his appointment as chief operating officer of CCPA in September 1999. Dr. Dunn is also a national and international lecturer on the topic of risk and risk management.

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