examine - for doctors of chiropractic...the urgency of getting treatment for cauda equina syndrome,...

W i n t e r 2 0 1 3

ExaminerCOMPELLING CASE STUDIES AND PRACTICAL TIPS FOR AVOIDING A MALPRACTICE ALLEGATION

NFL 3945

8Reduce Liability with These Tips for CAs

6Seminar Brings

Attorneys Together on Behalf of Doctors

16Is a Doctor Liableif a Patient

Injures Someone?

CONTINUED ON PAGE 2

Garrett Manningly, a 37-year-old tile contractor,hurt his back while camping in October 2006.The seat recliner of the car that he was sleepingin jammed. Garrett kicked the seat lever in amisguided attempt to free the reclinemechanism, and that is when the pain began.

He first sought treatment for the pain in October2006 with Dr. Robert Cunningham, M.D., at SpringfieldClinic. Garrett complained of right low back painradiating down his right leg to the ankle with occasionalnumbness and tingling but no weakness. He wasprescribed various pain medications and told to followup in five to seven days. He did not return to Dr.Cunningham.

On Thursday, February 22, 2007, at the insistence ofhis father, Garrett visited Bradley Kente, D.C. Garrett’swife, Ann, a nurse, accompanied him and stayedthroughout the appointment. Dr. Kente obtained awritten history and discussed it with Garrett, noting he

was “morbidly obese,” having weighed more than 300pounds for at least eight years. He had other healthissues, as well, including type 2 diabetes and a historyof depression for which he had been taking medicationoff and on for many years. Garrett said his low back pain had been radiating down his right leg for threemonths but had been much more painful during thepast five days.

AP and lateral X-rays were taken, which showedhyperlordosis, mild scoliosis and spurring, which Dr.Kente did not deem severe enough to contraindicateadjustment. Although Dr. Kente performed anexamination on Garrett, the patient was in too muchpain to perform the range of motion test. The patienthad no reaction to the patella test, which Dr. Kenteindicated was a “bad sign,” signaling a neurologicalcomponent to the pain.

Dr. Kente identified sciatica, lumbar osteoarthritis,lumbar disc degeneration, spondylolisthesis and lumbar

When a patient presents with a potentialemergency, a D.C. must make swift decisionsabout whether a referral to a hospital isnecessary, how quickly it must take place andwhat must be done to ensure patient compliance.

Doctor’s DecisionMaking Questionedin Emergent Care Situation

subluxation. The plan of treatmentconsisted of adjustments to reducethe severity of pain three times aweek (starting the day of the initialvisit) for three weeks followed by a re-examination.

On the day of the initial visit,February 22, Garrett was treated withan adjustment along with ultrasoundand electrical muscle stimulation. Hereported he felt a little better followingthe treatment.

Garrett returned to Dr. Kente thefollowing day, Friday, February 23.The records indicated the patient’ssciatica, range of motion and mobility

had all improved, and his pain hadreduced to “dull.” According to therecords, Dr. Kente performed somemuscle testing to determine theareas of involvement. Following thismovement, he then viewed thepatient’s leg lengths in the proneposition followed by the flexedposition to determine if and wheretreatment was needed. Garrettreceived the same treatment as onthe initial visit and experienced thesame results. He was scheduled toreturn the following Monday, but hiscondition declined.

Patient’s ConditionDeteriorates

Late Friday night, Garrett realizedhis pajama pants were wet. OnSaturday, he was still having severepain and could not find a comfortableposition. The pain had changed, as well. Instead of throbbing pain, itwas shooting pain. The incontinencealso persisted. He experienced lossof bowel control on Sunday. At notime throughout the weekend didGarrett consider going to theemergency room.

Monday morning, February 26,Garrett called Dr. Kente’s office to get

2 | NCMIC Examiner | Winter 2013

Although the patient had lost bladder and bowel control,he did not go to the ER.

Denies Whetstone,RPLU, CISR

Senior Client Representative

Denies has been helping doctors at NCMIC over the past eightyears both over the phone and at NCMIC events. Denies is extremelyknowledgeable about the NCMIC chiropractic malpractice insuranceplan, the long term disability insurance plan, and other NCMICproducts and services. She is happy to provide quotes, advise youon policy change options, and answer your application and billingquestions.

In addition, Denies’ more than 10 years of experience at aninsurance agency and other insurance companies has provided herwith expertise in property/casualty insurance and life/annuityinsurance. Denies has also increased her knowledge about insuranceby obtaining the following designations: INS, AIS, AINS, RPLU, CISR,AAPA, ACS and PCS. For these reasons among others, Denies isideally suited to identify solutions for D.C.s’ varied insurance needs.

Denies truly cares about our doctors, and “We Take Care of OurOwn®” is more than a motto for her. So, whether you are an existingpolicyholder or a doctor interested in becoming one, you can counton Denies to provide the first-rate service that NCMIC is known for.

The next time you’re at a college homecoming or stateassociation event, say “hi” to Denies Whetstone, a seniorclient representative in NCMIC’s Insurance Client Servicesdepartment.

CONTINUED FROM PAGE 1

an earlier appointment than what wasoriginally scheduled. Gloria Stillwell,Dr. Kente’s assistant, told Garrett tocome in right away. When the patientarrived, Gloria noticed he hadapparently urinated, and she tookhim immediately to a private room.Garrett told Dr. Kente he was inextreme pain, his right leg and leftfoot were numb, and he had lostbladder and bowel control.

Dr. Kente told Garrett to go to theemergency room, which was aboutone block from Dr. Kente’s office, butGarrett said he did not want to go.According to Dr. Kente, he explainedthe urgency of getting treatment forCauda Equina Syndrome, althoughDr. Kente later testified he may not

have used that exact term. He thenadjusted Garrett to try to alleviate hisback and leg pain. At this point, Dr.Kente fully expected the patient toreport to the emergency room.

At 5:00 p.m. that evening, Garrettreturned to Dr. Kente’s office. Hispain had gotten progressively worse,and he was now wearing adultdiapers. The visit surprised Dr. Kentebecause he thought Garrett hadgone to the emergency room. Heagain adjusted the patient and urgedhim to go to the emergency room.

Garrett’s AccountGarrett’s account of the events

varied greatly from Dr. Kente’s.According to Garrett, the reason he

did not want to go to the emergencyroom was because Dr. Kente hadtold him on his first visit that he couldfix his issues, that 90 percent of backsurgeries fail, and that things wouldget worse before they got better.Garrett said he was told by Dr. Kenteon Monday, February 26: “I can fix it,but by law I’m supposed to tell youto go to the ER.” After the treatmenton that Monday morning, Garrettsaid he was directed to make anappointment for later that day, andthat he would need to come in fortreatments twice a day for the nextfew weeks.

Dr. Kente denied discussing thefailure rate of back surgeries with thepatient or professing that he could

NCMIC Examiner | Winter 2013 | 3

CONTINUED ON PAGE 4

With our policy, full-time D.C.s get a 5% DISCOUNT (2.5% for part-time D.C.s)for three consecutive policy years for attending a qualifying 8-hour seminar*

Want to keep abreast of new developments in chiropractic and get the latest ways to implement them into your practice? Attend an NCMIC risk management seminar near you!

Go to the CE Seminars section of www.ncmic.com for additional listings.

Levittown, NY Hosted by: New York Chiropractic CollegeSpeaker: Mario Fucinari, DC, CCSP, DAAPM, MCS-PTopic: Risk Management/Florida Requirements (13 hours)

To register: Contact NYCC at 1-800-434-3955

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December 7-8, 2013

*Seminar discounts earned up to 30 days after the policy renewal date will apply immediately; those earned 30+ days after the renewal date will apply at the next policy renewal date.

Bismarck, ND Hosted by: North Dakota Chiropractic AssociationSpeaker: Steve Gould, D.C., DACBRTopic: Radiology (6 hours)Speaker: Anna Allen, MSN, RN, CPHIT, CPEHRTo register: Contact NDCA at 701-934-2682

January 25-26, 2014

Johnson City, Tennessee Hosted by: Tennessee Chiropractic AssociationSpeaker: Steve Gould, D.C., DACBR Topic: Radiology (12 hours)To register: Contact TCA at 1-615-383-6231

February 22-23, 2014

“fix” Garrett’s condition after thepatient presented on Monday,February 26. Further, Dr. Kenteclaimed that he did not ask thepatient to return later that day nor didhe recommend continued treatmentover the next few weeks. AlthoughGarrett had an appointment cardshowing 5:00 p.m. on Monday, it was not clear whether it wasscheduled when he left the office or if it was scheduled the previousFriday. Gloria Stillwell, the CA, latertestified that she would not usuallywrite out an appointment card forlater the same day.

Visit to the EROn Tuesday, February 27, Ann

Manningly took her husband to thelocal emergency room as his conditionhad not improved. The ER physiciannoted that the patient was too large

for an MRI, and a CTscan was ordered.This scan showed acalcified diskprotrusion.

The following day,Jackson Bates,M.D., saw GarrettManningly for asurgical consultation.He stated there wasa complete block of

L5–S1. Dr. Bates recommendedsurgery at the earliest opportunitybecause Cauda Equina Syndromerequires surgical intervention within48 hours of the onset of symptoms.Since Garrett’s symptoms hadpersisted for longer than that, Dr.Bates had low expectations for theoutcome of the surgery.

Garrett underwent surgery thefollowing evening. The surgery notes

indicated a calcified disc herniation,which meant Garrett’s condition wasa longstanding one. The calcifiedherniation was pressuring the spinalcanal, causing Cauda Equinasymptoms.

After the surgery, the patient’spain returned to the level it was before he began treating with Dr.Kente. However, the numbness in his leg, sexual dysfunction, or boweland bladder control issues were not alleviated.

Garrett was discharged onFebruary 30, 2007, with several painmedications and instructions forexercises to perform at home. ByOctober 2007, after several follow-upvisits with Dr. Bates and ongoingvisits with a pain managementspecialist, Garrett was 70 percentimproved with no expectation ofcontinued progress. At that point, hehad no feeling in the bottom of hisright foot, no sensation in his leg, andpain between his knee and ankle. Hewalked with a cane, still had boweland bladder issues, and was numbfrom his waist to his thighs. Garrettwas on disability as he was no longerable to perform the duties of a tilecontractor. He had a tenth gradeeducation and was not trained forany other occupation.

Claim EnsuesGarrett Manningly filed a claim

of malpractice against Dr. Kente onFebruary 20, 2009. The complaintalleged the doctor failed to refer him for emergency care and hadnegligently treated his condition.Garrett’s damages included past and future medical expenses, lostwages, loss of consortium, and painand suffering.

Experts retained by the plaintifftestified in the deposition to multiplebreaches in the standards of care by Dr. Kente.

Furthermore, the plaintiff’s expertsbelieved that Dr. Kente’s actions andinactions significantly contributed to,and possibly caused, GarrettManningly’s need for surgery andpermanent impairment.

A chiropractic expert retained byNCMIC disagreed with all but one ofthe alleged breaches of standards ofcare. While this defense expert wastroubled by the adjustmentsperformed on a patient who exhibitedsigns and symptoms of CaudaEquina Syndrome, he was confidentthat Dr. Kente met the applicablestandards of care with respect to thetesting and X-rays taken. Thischiropractic expert for the defense


CONTINUED ON PAGE 12

Garrett wasno longerable to workas a tilecontractor.

These alleged breaches included:

• Failure to perform muscletesting to evaluate the patient’sneurological strength

• Failure to perform range ofmotion testing

• Failure to take an oblique X-rayand confirm appropriateness of film studies

• Failure to refer to a medicalspecialist when the patientpresented with signs andsymptoms of Cauda EquinaSyndrome

• Providing spinal manipulationsfollowing the onset of CaudaEquina Syndrome, which wascontraindicated


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Our policyholders haveattorneys with the mostchiropractic knowledge readyto defend them, should theneed arise.

The 2013 Defense CounselSeminar, held September 27–28 inKansas City, is another example ofhow NCMIC works professionally and methodically to accomplish this.The Seminar gave defense attorneysthe opportunity to:

• Learn about the latest trial strategies, as well as other decision-making considerations for lawyers

• Discover how the latest clinical and regulatory developments can impact a D.C.’s defense

• Discuss chiropractic cases and exchange strategies with colleagues

Programs Included:

Understanding Cancer Biology inthe Context of Malpractice—Whyis it Important?

Marc B. Garnick, M.D., describedthe current concepts regarding thebiological basis of clinical cancerbehavior, including why only somecancers are lethal. The sessionaddressed the genetic differences ofsimilar appearing cancers under the

pathologists’ microscope andexplained why their behaviors vary so greatly.

Dr. Garnick also discussed thefactors that shape doctor behaviorand the complexities of screeningstudies. The misinterpretation ofscreening studies plays adisproportionate role in claims ofmalpractice. Dr. Garnick highlightedthe importance of understandingthese limitations and how they can beapplied in the defense of a malpracticecase. He included specific examplesto help attendees understand thebiases associated with screeningstudies.

Defense Counsel and Others in theCrosshairs—How to Avoid BeingTargeted, Stuffed and Mounted

Francis O’Meara, Esq., discussedrecent developments in claim

activities in today’s highly litigiousenvironment. In the advent of aturning economy and demands foraccountability, there is a rise in claimsagainst counsel involved in handlingor advising on litigated matters.

How to Placate the U.S.Government When Settling a Case

James E. Pocius, Esq., suppliedinformation and practical tips in thisinteractive program to help counseldeal with Medicare and Medicaidwhen settling cases. Considerationwas given to the issues of Medicareset-asides, conditional payments and other government interests inorder to protect clients and ensuresettlements are final.

Stomping the ReptileRichards Ford, Esq., discussed

the “Reptile,” a trial strategy growingin popularity among plaintiffs’

Seminar Brings 200+Attorneys Together on Behalf of NCMIC Doctors

The 2013 event brought together approximately 200 lawyers from across the nationto focus on the defense of NCMIC policyholders.

©2013 NCMIC NFL 5080NCMIC Examiner | Winter 2013 | 7

NCMIC.com is NowViewable on All Devices

What’s New?

Practice Resourcs taboffers easy-to-read sections to help you run a chiropracticpractice.

Risk Management sectiongives you case studies andarticles with strategies foravoiding a malpractice claim or board allegation.

Chiropractic CareerStages section groupsinformation by the variouspoints in your career.

News and On Location sections provideimportant notices and upcoming NCMICactivities at the colleges.

attorneys. This is a strategy thatseeks to appeal to the jury’s primitivesurvival instinct by stressing safetyrules and immediate danger. It impelsthe jury to render a verdict for theplaintiff to protect the community and themselves. In this presentation,Mr. Ford shared defense strategies to combat the Reptile strategy.

Decisions and DistractionRoger Hall, Ph.D., outlined the

particular ways lawyers can makebetter decisions for their clients.Clients retain lawyers for their goodjudgment and legal decision making.A growing body of research indicatesthat good decisions are not purely

rational. Attendees learned thecomponents of a good decision andthe factors that can impair their abilityto make excellent decisions on behalfof their clients. One variable is the useof information. Lawyers are inundatedwith information. Too much information

can impair a lawyer’s attention andability to focus on client needs.Lawyers also learned how to identifyand prevent the slippery slope ofself-deceptive behavior.

What the Seminar Meansto Policyholders

As a result of our Defense CounselSeminar, attorneys and otherprofessionals are more knowledgeablethan ever about the relevant issues in a chiropractic lawsuit. Thiscontinuing education is an enormousbenefit to you as a D.C. should youever be involved in a malpracticelawsuit or simply be accused ofwrongdoing. 7

Scan to go to the site.Information will

be updated often!

Visit the all-new ncmic.com today! The website is easier to view since it formats for the device you’re using—whether desktop, laptop, tablet or smartphone.

The Federation of ChiropracticLicensing Boards (FCLB) andvarious associations havenoted concerns surroundingpatient protection, safety andoffice liability for servicesprovided by office staff.

In the past, many states have notmandated chiropractic assistant (CA)training. However, many boards arenow considering a different approachin light of FCLB’s national CCCAtesting, patient protection concernsand third-party payer concerns overdoctors who bill for services providedby non-certified or non-credentialedemployees.

Whether mandates are in place ornot, it is prudent to have CAs whoparticipate in patient care engage inbasic training. Here are some tips:

Sticky pads. Adhesive ondisposable sticky pads shouldstill be intact before applyingthem to the patient. Pads areexpensive, but don’t let your CAbecome so worried about thecost that they try to getexcessive mileage out of them.They should dispose of the

pads as necessary for theprotection of the patient. Padsshould be promptly disposed ofwhen the adhesive becomestorn, cracked or no longer sticky.

Carbon pads. It is important toobtain a good gel coat to avoidthe contact of electricity goingthrough the smaller area thatamplifies the head.

Medium/gel. Educate your CAsthat a patient could be allergicto the material used with or onthe pads (gel, silver, self-adhesive pads, etc.), as well asthe medium used forultrasounds. Thus, CAs shouldbe knowledgeable about thesigns of allergic reaction.Redness, blotchiness, itching,pain or swelling could allindicate irritation or a possiblereaction. In these instances, theCA must know to obtain thedoctor’s assistance immediately.

Hot packs. The CA should useample layers of toweling forhydrocollator packs. Moist heatcan penetrate quickly andtherefore be underestimated.

Also, make your CAs aware thatburns with this modality aremore likely to occur when apatient lies on the top of thepack because additional weightmay intensify the head. For thisreason, the pack should alwaysbe placed on top of the patient.

Ice. Prolonged ice exposure on bare skin can also lead todamage. It is essential to sharewith the CA that ice can be asource of injury (though it is amuch less common cause ofinjury when compared to othermodalities).

Ultrasound. Remind the CA to use ample amounts ofgel/medium on the ultrasoundhead to reduce the risk of burn and also to protect theequipment head. According tothe instrument guidelines, thehead is to be kept moving. Notonly can a patient be burned, a motionless ultrasound headmay become damaged.Ultrasound use should bediscussed relative to devices(e.g., pacemakers) or surgical

Reduce Vicarious LiabilityWith These Tips for CAs


Patient burns remain an area of risk for a chiropractic practice.Even though it will often be an office staff member who appliesa modality, the doctor may be held vicariously liable for anyaction or inaction by an employee that leads to patient injury.

By Laurie Mueller, D.C.

metal implants. Also, the CAshould use caution when usingultrasound on pregnant womenor over sensitive areas such asthe eyes, brain or growth platesin children.

Systemic diseases. As adoctor, you should be cognizantof systemic diseases, specificallydiabetes, peripheral vasculardisease or neuropathies.Educate your CA that individualswith these conditions mayexhibit loss of sensation.Therefore, they won’t be able totell if their skin is burning.Consequently, many Doctors ofChiropractic opt to discontinuemodality use with patients whohave these conditions.

Communication with patients.Encourage your CAs tocommunicate with patientsbefore proceeding with the use of a modality. They should tell patients to alert themimmediately if they ever feel anydiscomfort or burning during apassive modality treatment. It isnot normal to feel pain duringthe procedure. It can be helpfulfor the CA to ask the patient thefollowing questions and obtainyour assistance if there is apositive response:• Do you have a pacemaker

or metal implant?• Are you pregnant?• Do you have decreased

sensation anywhere on your body?

• Are you diabetic?

Communication with thedoctor. CAs should feelcomfortable in approaching thesupervising D.C. with anyconcerns about using modalitieson patients. Help your CAs feel

at ease by telling them: “Noquestion is a dumb question if itcan prevent a patient injury.”

Train your CAs. In addition tousing the tips above, it isimportant to formally train youremployees. Online trainingprograms can make high-qualitytraining affordable andconvenient. In addition,employees should reviewequipment manuals regularly tokeep instructions at the forefrontof their thinking. 7

Laurie Mueller, D.C.,served in privatepractice in San Diegoand was the post-graduate director atPalmer College. Inaddition, she was theACC post-graduatesubcommittee chair;peer reviewed for the

Research Agenda Conference, and aided inthe development of FCLB’s guidelines forCAs. Dr. Mueller currently works as aprivate eLearning consultant through hercompany, Impact Writing Solutions, and itssubsidiary, www.CCCAonline.com.


Call us toll free at 1-800-247-8043 7 a.m. to 6 p.m., CT, Monday–Thursday 7 a.m. to 4:30 p.m., CT, Friday

We’re Here to Help!

The doctor is tied to every actionor inaction by an employee—positive or negative.

With other professions havinglong offered specific trainingfor assistants, chiropracticstate boards and third-partypayers may begin requiring CA training. The FCLB hasimplemented a CertifiedChiropractic Clinical Assistant(CCCA) application process,program guidelines and anational examination. Seewww.fclb.org.

www.fclb.org


I read with great interest the excellent article related to prepayment plans [Fall 2013 Examiner]. I appreciateboth the detailed information and the timeliness of thisarticle. Misuse of prepayment plans appears to be agrowing issue as demonstrated by the great interestshown by members of chiropractic boards at the recentFederation of Chiropractic Licensing Board meeting inSan Francisco.

Having served on a state examining board for closeto a decade, I have witnessed firsthand the various issues

associated with pre-payment plans thatwere performedincorrectly.

As with manyaspects of practice,prepayment plans can be done correctly if the purpose andprocedures used arefor the benefit of thepatient. The author ofthis article correctlydiscusses many of theissues surrounding pre-payment plans whereboth the purpose andprocedures appear tobe for the benefit of thedoctor. The unlimitedcare at a fixed fee or“family plan” is agrowing issue, as

many providers may not realize that they are encroachingon or violating state insurance laws.

Along these lines, I would like to add that an additionalprocedure—discounting for a series of services—appearsto be becoming more prevalent within the chiropracticprofession. I hope to assist and advise providers to fullyreview this procedure before implementing it into theirpractices. Patient complaints related to this procedurehad become almost routine during my term on the

examining board. In my opinion, the unfortunate aspect of this procedure is that it usually took a very satisfiedchiropractic patient and shifted to someone becomingangry enough to submit a complaint to the state board.

This procedure appears to start out with a simplediscount for a series of services. A treatment planincluding an extensive list of services is drafted with the full price listed. The provider then has a secondcolumn where a prepayment discount is displayed, usually with additional services added in at no cost if the patient pays in full.

The patient is happy with the initial offer anddifference in price with the prepayment option and begins treatment. In many cases the patient’s conditionresponds well to chiropractic care midway through thetreatment plan, and they are very happy.

The patient then tells the provider that he or she isfeeling great and would like to discontinue care at thispoint. The patient asks for a reimbursement for theunused services that were initially prepaid. Instead of reimbursing the patient for the unused services,the provider explains that since the patient did notcomplete the entire treatment plan as initially agreedto, the prepayment discount no longer applies. Theprovider removes the discount which usually equals outto the full amount of the prepayment—or, in many cases,the amount is more—and the provider explains that thepatient now owes more money for discontinuingtreatment. As you can imagine, the previously very happypatient now becomes very unhappy with the provider andskeptical of our great profession.

The purpose of my letter is not to discourage properprepayment procedures as many professions, such asdental, routinely and correctly use prepayment systems.My goal is to alert Doctors of Chiropractic to carefullyreview their prepayment procedures to make sure theycomply with state laws and do not create antagonismwith their patients.

Sincerely,Steven Conway, D.C., DACBOH, Esq.

Athens, Wisconsin

Your Turn D.C.s OFFER THEIR COMMENTS AND REACTIONS

Dear NCMIC,

PREPAYMENTPLAN ISSUES

I have witnessed

firsthand the

various issues

associated with

prepayment

plans that were

performed

incorrectly.

“

”

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CONTINUED FROM PAGE 4

was also quite convinced by therecords that Dr. Kente made theappropriate referral when Garrettpresented with loss of bowel andbladder control. The expert furtheroffered his opinion that not enoughforce could have been used in Dr.Kente’s manipulations to cause theplaintiff’s injuries.

A neurosurgeon expert alsotestified that Dr. Kente’s treatmentdid not cause Garrett Manningly’sCauda Equina symptoms but couldnot comment if the impact of theadjustments exacerbated the injuries.

Assessment of the CaseWhile Dr. Kente’s defense team

felt they had a strong case based onstandard of care and causationissues, there were definitely causesfor concern about the potentialoutcome of the case. Specifically,they felt the following could beproblematic: • Referral Issues: Whether Dr.

Kente acted appropriately whenhe referred Garrett Manningly tothe ER would come down towhom the jury believed. Theplaintiff’s counsel would likelypoint to the card showing anappointment at 5:00 p.m. onMonday, February 26, to raisedoubts that a referral was madeand to allege that Dr. Kente hadevery intention of continuingtreatment. Additionally, even if thejury believed a referral was made,it was possible they would feelthat Dr. Kente should have beenmore forceful to ensure the patientwent to the emergency room,including refusing to adjust himuntil he was evaluated for apossible neurosurgical emergency.

• Adjustments: The plaintiff’s

experts testified that Dr. Kentebreached the standard of carewhen he adjusted Garrett after he began exhibiting signs ofCauda Equina Syndrome. Evenexperts for the defense hadexpressed concerns about thestandard of care being breachedin this instance.

• Testing Issues: While theplaintiff’s experts were very criticalof the tests performed by Dr.Kente, the experts for the defensewere primarily concerned with the lack of a sensory exam, whichcould have shown early signs of Cauda Equina Syndrome onthe second visit. This may haveallowed time for effectivetreatment.

• Records: Dr. Kente’s initialrecords on the plaintiff’s care werescant. However, at some pointfollowing the patient’s visits, Dr.Kente decided to “expand” hischart notes with greater detail.This rather unorthodox method ofrecordkeeping would need to beexplained at trial and would likelybe used by opposing counsel tocast doubt about the accuracy ofthe records. Fortunately, the twoER referrals appeared in theoriginal notes.

The defense team believed thatboth Dr. Kente and Garrett Manninglywould appear credible before a juryand would likely perform well. Theirconcern was the emotional tie thejury would likely form with theplaintiff. Garrett Manningly was arelatively young, married man whoselife was irrevocably altered due to thisinjury. As the father of three youngchildren, he would be well-liked bythe jury, and they may try to make

him as comfortable as possible witha large award.

Defense Team’s FocusThe emphasis of the defense

would be to primarily raise doubtsabout whether Dr. Kente’s treatmentscould have caused the plaintiff’sinjuries. The defense was alsoprepared to argue contributorynegligence on the part of the plaintiffand the plaintiff’s wife. When bladderand (especially) bowel control is lost,a reasonable person would seekemergency care. This argumentcould gain traction because AnnManningly was a nurse who shouldhave recognized the emergent natureof the situation.

Nonetheless, the plaintiff’sattorney could counter with theargument that the patient did notseek emergency care because hetrusted Dr. Kente and believed hecould fix the problem. Further, Dr.Kente, it would be argued, hadinstilled in Garrett Manningly a fear of medical doctors that made himreluctant to get the care he needed.

Given the strengths andweaknesses of the case, the NCMIC-

A number of factors stacked thedeck against the doctor’s defense.


To adjust or not to adjust—that is the question. One ofthe most difficult legal challenges to overcome is when adoctor continues to provide the same treatment when theliterature, clinical judgment, guidelines and just plain old-fashioned common sense dictate otherwise. Whether thepotential condition is Cauda Equina Syndrome, VAD, fracturedrib or something else, it is best to reconsider the treatmentwhenever you’re in doubt. In this instance, there were clearindications that a severe neurological incident was underway(e.g., the patient was incontinent). Yet, Dr. Kente proceeded to adjust him in the same manner. Had Dr. Kente not providedthis treatment, the probability of a defense verdict wouldhave increased exponentially.

Trust your clinical instincts. Dr. Kente ultimatelyrecognized the Cauda Equina symptoms and that a referralwas necessary. Nonetheless, he succumbed to the idea thathe could help the patient in the meantime. When immediateintervention is warranted, no delay is appropriate.

Stand your ground. This has nothing to do with firearms,but with clinical firepower—in other words, your expertise.Never compromise your clinical judgment when the health,safety and welfare of a patient is involved. Prompt referraland follow through is critical when a consultation andexpertise from another healthcare provider is advisable. Inthis situation, Dr. Kente knew that Garrett Manningly needed

to go to the emergency room, yet he allowed the patient todisregard his clinical judgment two times. The proper actionwould have been to call 911 and have the patient transportedto the local ER. If the patient refused when the EMTs arrived,there would have been no doubt that Dr. Kente recognized themedical emergency and the patient was the irresponsible party.

Records are ideal when complete, dangerous whendeficient, and lethal when altered. The defense team maybe able to defend poor or deficient records, but it is almostimpossible to defend altered records. It is better to let therecords stand, even if they’re incomplete, rather than tryingto “improve” them after the fact. Remember, an alteredrecord gives a jury the perception that the doctor hassomething to hide, and credibility is one of the mostimportant components of a malpractice case.

Make sure all testing is appropriate. By law, radiographsmust be readable before a doctor may bill for the technicaland professional component. If films are taken, they must beof radiographic quality. A report must be in the records if theprofessional component was billed for. Otherwise, expertwitnesses will likely raise concerns. In this case, it is difficultto imagine that Garrett Manningly at 300 pounds could haveproduced an ideal X-ray. Yet, there was no mention of thequality of the film produced and charged by Dr. Kente.

What Canwe Learn? By Jennifer Herlihy, Boston, Massachusetts, and Providence, Rhode Island

retained defense counsel estimatedthere was only a 25 percent chanceof a defense verdict if the case wentto trial. Economic damages wereestimated to be well in excess of Dr.Kente’s $1 million policy limits, andpain and suffering damages were alooming wildcard. Given the risksassociated with going to trial, Dr.Kente gave his consent to settle the case.

The case was mediated onFebruary 4, 2011. The mediator hadset the plaintiff’s expectations

unrealistically high (above policylimits) for a settlement, which madenegotiations difficult and eventuallyimpossible. While it was agreed thatthe case should be settled, NCMIC’sgoal was to negotiate a realisticamount. Therefore, NCMIC refusedto pay what the plaintiff wasdemanding. To that end andbecause the mediator assigned to the case had proven to beineffective, the NCMIC claims staffapproached the plaintiff’s attorneydirectly to negotiate a settlement.

While going directly to the plaintiff’srepresentative is an unusualapproach, NCMIC had the specificexperience and skill needed in thistype of situation, making it the bestmanner in which to serve Dr. Kente.

The case was ultimately settled.Defense costs paid by NCMIC wereclose to $120,000. 7

Examiner case studies are derived from the NCMIC claims files. All names used inExaminer case studies are fictitious to protect patient and doctor privacy.

©2013 NCMIC

NCMIC Insurance Companya subsidiary of National Chiropractic

Mutual Holding Company Rod WarrenPresident

Roger L. SchluterTreasurer / Assistant Corporate

Secretary Jacqueline Anderson

Vice President, ComplianceCorporate Secretary

Bruce BealVice President, Claims

Matt GustafsonChief Financial Officer

Assistant Vice Presidents:Barb Clark, Operations

Traci Galligan, Human ResourcesKeith Henaman, Claims

Paul Luckman, UnderwritingMike Whitmer, Corporate Relations

David Siebert, Professional Liability Program

Joseph S. Soda, Insurance ServicesCaren Whitney, Customer Service

ExaminerW I N T E R 2 0 1 3


WHAT’S NEW AT NCMIC AND IN CHIROPRACTIC

News andNotes

Examiner is published quarterly forpolicyholders of NCMIC’s MalpracticeInsurance Plan. Articles may not be reprinted, in part or in whole, without the prior, express writtenconsent of NCMIC. Information providedin the Examiner is offered solely forgeneral information and educationalpurposes. It is not offered as, nor does it represent, legal advice. Neitherdoes Examiner constitute a guideline,practice parameter or standard of care.You should not act or rely upon this information without seeking theadvice of an attorney. If there is a discrepancy between Examiner andthe policy, the policy will prevail.

“We Take Care of Our Own” is aregistered service mark of NCMIC Group, Inc. and

NCMIC Risk Retention Group, Inc.

Send inquiries, address changes,and correspondence to:

NCMIC Examiner P.O. Box 9118,Des Moines, IA 50306-9118 1-800-769-2000, ext. [email protected] Houchin, Editor

National Chiropractic MutualHolding Company DirectorsLouis Sportelli, D.C., President

John J. DeMatte IV, D.C.Claire Johnson, D.C., MSEdMatthew H. Kowalski, D.C.Vincent P. Lucido, D.C.

Mary Selly-Navarro, R.D., D.C.Marino R. Passero, D.C.Wayne C. Wolfson, D.C.

Also, serving on the NCMIC RiskRetention Group, Inc. board are: LouisSportelli, D.C., Wayne C. Wolfson, D.C.,Vincent P. Lucido, D.C., Russel A. Young,Vermont Director; Patrick E. McNerney,Director; Roger L. Schlueter, Director and Jacqueline Anderson, Director.

Policyholders of NCMIC InsuranceCompany are members of NationalChiropractic Mutual Holding Company andare hereby notified there will be three

vacancies to be filled on the Board ofDirectors at the annual meeting to be heldon April 21, 2014. The Board of Directors willnominate three doctors to fill these vacancies.

NCMIC President Louis Sportelli, D.C.,would like to issue a huge “thank you” to themore than 1,200 policyholders who returnedtheir dividend checks back to the NCMICFoundation in support of chiropracticresearch. He is totaling the contributionsfrom last year and working on next year’sappeal, which will be mailed to policyholderin a few months. Dr. Sportelli has asked that

the NCMIC Foundation be part of yourongoing contributions, and he will providean update on the progress of theFoundation. The Foundation is well on itsway to achieving its goal.

If you have not already donated to theNCMIC Foundation and would like to do so,please go to www.ncmicfoundation.organd select the “Make a Contribution” tab.

As previously noted in Examiner(Summer 2012), doctors have until October1, 2014, to begin using a new andexpanded set of diagnostic codes, calledICD-10, under regulations announced on

April 9, 2012, by the U.S. Department ofHealth and Human Services (HHS).

For more information about thechangeover, go to www.cms.hhs.gov/Medicare/Coding/ICD10/index.html.

In the last issue of Examiner, theavailability of Examiner online wasannounced. Offering an online publicationenables NCMIC to offer you timely news,online bonus articles and interactive content.Also, you can access it from any computeror mobile device when it’s convenient foryou. One thing that will remain unchanged isthe real-life case studies, articles and Q & Asyou have come to expect in Examiner.

As a policyholder, you were given the

choice to receive Examiner online or inprint—whichever option you preferred. If you missed this announcement, please beaware of the following:

• Examiner online is the default if we have your valid email address

• Examiner in print is the default if we do not have your email address.

Want to make a change? No problem!Simply call us at 1-800-769-2000, ext. 3550.

Notice of Board Election

NCMIC Foundation Appeal Generates Considerable Interest and Response

Policyholder Reminder: Examiner is Available Online or in Print

ICD-10 Compliance Reminder

NCMIC Insurance Services is a licensed insurance agency. Insurance coverage is underwritten through some of the nation’s leading insurance carriers. CA license #0B84564.© 2013 NIS NFL 8275

Contact us today for your business insurance and personal insurance needs.

1-800-990-7002, ext. 8275www.ncmic.com/[email protected]

Because of our nationwide scope, we have access to many top-rated insurance companiesthat other independent agencies may not have access to. That enables us to offer D.C.slike you choices on coverage, as well as competitively priced solutions.

Make sure you have the insurance coverage you need—both personally and professionally. Contact one of ourindependent insurance agents today for a no-obligation quote.

BUSINESS INSURANCEProtect your practice in the event of a loss. We’ll compare rates and coverage to provide you with options to meet your needs. Ask us for a no-obligation insurance quote for:• Business owners’ policy• Workers’ compensation insurance• Employment practices liability insurance• Product liability insurance• And more

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SEE HOW NCMIC’S CLAIMS ADVICE HOTLINE HASHELPED D.C.S JUST LIKE YOU.

You Rang?The Benefit D.C.sRely on to AvoidClaimsWorried about a touchysituation? Just need advice?Call NCMIC’s confidentialClaims Advice Hotline at 1-800-242-4052 to talkwith a professional claimsrepresentative about any concern or situation you’re not sure how to handle.

In general, healthcare malpractice

In general, healthcare malpracticesuits are based on negligence, andthe plaintiff has the burden of provingthe doctor was negligent. The four

elements required to shownegligence are: Duty or standard of care

owed to the patient by the doctor

Breach of that duty or standard of care

Causal connection between the breach and the injury

Damages sustained by the patient

In the situation you described, theissue is that the injured party is notthe patient. However, if the patientwould have hit the girl, you could stillbe found negligent since you allowedthe patient to drive in an impairedcondition, which in turn led to thepatient’s fainting, an accident, andthe girl’s resultant injuries.

You might have limited yourpotential liability in this situation if you would have:

• Educated the patient early on that he shouldn’t operate a vehicle or equipment if his blood pressure reaches a critical level. With the patient’s permission, you could have brought family members into this discussion.

• Documented your discussionand instructions carefully, especially any short- or long-term driving restrictions once you deemed the patient unsafe to drive.

• Complied with your state laws and regulations about mandatory reporting. Contact your state’s department of transportation as required by law anytime a patient’s ability tosafely operate a motor vehicle is jeopardized.

• Taken the conservative approach—erring on the side of caution rarely gets a doctor in trouble. Ideally, a family member of the patient would have driven him to the internist’s office.

Cases of third-party liability—allegations of healthcare negligencethat result when a patient causesinjury—are becoming more frequentacross various healthcare settings.Even conscious sedation from acolonoscopy requires someone todrive a patient home. An eyeexamination requiring dilation of thepupils requires a patient either tohave a driver or to wait until they arere-examined and cleared for driving.

A Doctor of Chiropractic mustexercise sound clinical judgment,especially when there is a serioushealth situation. In this case, perhapsyou should have restricted thepatient’s driving when his bloodpressure reached the level that couldlead to a loss of consciousness. 7


One of my regular patients is a52-year-old male with back painand hypertension who wasreferred to me by his internalmedicine physician. Diet,exercise and chiropractic care all failed to improve hishypertension. At a recentappointment, I checked hisblood pressure, and it was at critical level, 195/106. Iimmediately contacted thepatient’s internist who wantedto see the patient right away. On the drive to the internist, the patient “fainted,” drove ontoa busy sidewalk and nearlystruck a 10-year-old girl. WouldI have been liable if the patientinjured her?

Is a Doctor LiableIf a Patient Injures Someone?

QUESTION

ANSWER

examine - for doctors of chiropractic...the urgency of getting treatment for cauda equina syndrome,...

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