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Dynamic Chiropractic Canada – January 1, 2010, Vol. 03, Issue 01
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The Dangers of Self-Defense

By Allan Freedman, LLB

At first blush, the word self-defense brings to mind an individual who reacts to being beset upon by another person. With just cause, the individual doing the defending can exercise reasonable and justifiable means to protect themselves and to ensure that an assault is avoided or stopped.

But there is also a different kind of self-defense, the kind that doesn't involve an individual faced with an attempted or actual physical assault. I'm talking about a professional, for the purposes of this discussion a health care professional, who is faced with an allegation of misconduct or professional negligence.

It appears to be an innate part of the human psyche for professional practitioners to not only defend their physical presence, but also the character and the goodwill of their professional practice. However, the risks associated with "self-defense" of a one's own professional character and an associated right to practice chiropractic is fraught with potential serious and permanent repercussions.

There is an initial inclination to act immediately upon receiving any communication or allegation regarding a matter of professional conduct, whether that involves a request for an explanation as to why a particular action was taken in an office; a formal correspondence from a regulatory body; a notice of complaint; an inquiry concerning criminal activity; or the service of a statement of claim regarding a civil action. While the inclination to rush out and take care of the problem yourself may be your initial innate reaction, the more appropriate course of action is to do the following: take a deep breath and then contact your insurer or legal adviser.

Do not reply to the comment, correspondence, or court document without contacting your lawyer or insurance carrier. Once the horse has left the barn, there is no turning back! There is no ability to take back what has been written or said. Mistakes happen; things can go wrong. It is the nature of life. There are errors in judgment and there is negligent conduct.

An error in judgment does not constitute negligence and is protected through participation in a protective association. However, when practitioners attempt to defend their own actions, matters invariably go from bad to worse. In some cases, the doctor simply does not understand the process or worse, the doctor will intentionally act in an inappropriate fashion with the misguided attempt to avoid responsibility for the action or to mitigate the damages suffered by the "other side."

In some cases, the practitioner may decide to rewrite history or "doctor" a file. Don't do it. You can never be smarter than the people who will ultimately investigate the wrongdoing. In many cases, it may well seem that the investigators print money by the barrel and have unlimited resources to prosecute a wrongdoing, and that may well be the case in terms of accessibility to investigators and forensic laboratory services.

In other cases, the practitioner may think it is appropriate to intervene with the victim, the other party (insurance carrier) or the patient. The practitioner may have the impression that by offering some benefit or recompense to the "other side," all problems will disappear. While it is true that there now exists legislation in some jurisdictions that protects an individual from having an apology used against that person as an admission of liability, the providing of an apology, if not done appropriately, may unfortunately fan the flames of litigation - particularly if it is done after the commencement of litigation or a complaint. It may be perceived as being "too little, too late."

And then there is the doctor who contacts anyone who might be involved in the investigation for the purposes of discussing what evidence the third party may provide, or worse yet, to request that the third party not become involved in the investigation or cooperate with the investigator. From the sideline, it is not difficult to appreciate that such actions will be frowned upon and when eventually brought to light, will severely detract from the credibility and integrity of the practitioner. In fact, it may well constitute an additional complaint of professional misconduct.

The defence of a complaint or lawsuit involves more than merely having a story to tell or thinking that justice will prevail. A trained advocate will look at the big picture and determine what should be done to minimize the damage; present the best position possible for the practitioner; and mitigate any damages that may occur. Good intentions do not constitute sufficient grounds for justifying an inappropriate defense. Good intentions will not be enough for a complaint to disappear.

In any proceedings relating to professional conduct, all of the parties have a particular job to do. The regulatory body is required to accept the complaint; the complaint committee must commence the investigation; the investigator must unearth all evidence that is relevant to the complaint; the prosecutor must present the evidence to the disciplinary panel; and the disciplinary panel must decide if there is sufficient evidence for a finding of guilt. The involved practitioner must ensure that the information relevant to the proceedings are properly secured; that the appropriate individuals are contacted (i.e., the insurance carrier or lawyer); and that all information is provided to allow for a proper defense.

The lawyer for the practitioner will have to digest all of the information and determine what course of action will lead to the best result. In doing so, the lawyer will obtain the informed consent of the practitioner. As is the case with all health care practices and chiropractors in particular, an informed consent requires that the doctor understand the risks involved in a procedure and the possible outcomes so as to be fully informed as to the various options open for consideration.

When all is said and done, much of the work that is required to properly defend a claim of negligence or malpractice will be done prior to an attendance in court. But the venue for dealing with matters of professionalism is an ominous-looking environment which requires the ability to think quickly and react quickly based upon training and experience. For the purposes of arriving at a proper disposition of an issue, the practitioner's lawyer must be aware of the constraints placed upon the regulatory body; any precedents that exist; and the present environment with respect to the various issues on the table. As society changes its opinions as to acceptability of conduct, so regulatory bodies change their approach to the seriousness of such matters as sexual impropriety, white-collar crime or lack of professionalism.

A doctor may well think that an administrative proceeding does not involve processes as serious as a civil proceeding. After all, the proceedings may not be occurring in a courtroom. Such a perception is incorrect and is actually a dangerous position to assume. After all, while a civil proceeding may involve a claim for damages, the administrative hearing may involve a loss of the right to continue to practice. Practitioners involved in administrative issues would be well-served to consider the costs involved in becoming a chiropractor and the potential loss of income by having that privilege removed prior to assuming that an administrative hearing is anything less complicated, involved or serious than that of a civil hearing.

In conclusion, there are two quotes that immediately come to mind when considering taking your own legal defense in any case of alleged professional misconduct. "A person who acts as their own lawyer has a fool for a client"; and "Hope for the best, plan for the worst and expect the unexpected". The moral of the story: Leave chiropractic to you, the chiropractor, and leave legal defence to a lawyer.


Allan M. Freedman graduated in 1974 with a law degree from the University of Western Ontario and has been an instructor at the Canadian Memorial Chiropractic College since 1976. He can be contacted with questions and comments at www.allanfreedman.blogspot.com.

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