There is a good chance that a practitioner will be a defendant in a professional liability action at least once during his/her career. Professional courtesy adjustments in the chiropractic community are common, but be cautious. Extending that professional courtesy just may land a lawsuit on your doorstep. An OUM insured recently endured that exact experience. The claim arose from the unique circumstances of a courtesy side posture adjustment given by one chiropractor to another chiropractor.


The case involved a history of low back pain for over a decade, with a prior diagnosis of degenerative joint disease. The plaintiff chiropractor appeared unannounced at the insured’s office and requested a courtesy adjustment; the two chiropractors had not previously met. The treating chiropractor took no written history and kept no records. An MRI of his low back shortly after the adjustment showed at L5-S1 a broad based central disc protrusion with some extruded disc material that impinged on the right S1 nerve root. The plaintiff chiropractor subsequently underwent two spinal surgeries and brought suit for damages in excess of $500,000.


OUM’s staff and its defense counsel retained experts to review the case, and they provided favorable standard of care reviews and also supported the defense that plaintiff’s injuries were not causally related to the chiropractic treatment provided by the insured. The plaintiff chiropractor retained experts who offered competing opinions. They opined that the insured breached of the standard of care by not performing an examination, by not taking a history prior to the treatment and by not retaining or preparing records of the treatment.


The insured ultimately prevailed with a defense verdict, and we asked him to share his thoughts about the process of working with defense counsel and his OUM claims specialist who guided him through the litigation process. We also asked him to convey the vast emotions he experienced throughout the course of litigation and how it impacted his professional and personal life. He agreed to share his experience to benefit other chiropractors who provide, or have provided, courtesy services to peer professionals, and who may be involved in professional liability litigation now or in the future.


I couldn’t believe it was actually happening, let alone from another chiropractor. Then, of course, the fear set in about what this was going to do to my career, practice and family.


Q: How did the claim first come to your attention?


A: This is an unusual case with another chiropractor suing me. The chiropractor called me about two weeks after the adjustment happened and stated that he had pain going down his leg and that he was going to get an MRI. After that, I said, “Well, when you get your results, let me know what they are and let me know how things go.” I got a letter in the mail from his attorney about two months later.


Q: How did you feel when you received that letter?


A: Shocked. I couldn’t believe it was actually happening, let alone from another chiropractor. Then, of course, the fear set in about what this was going to do to my career, practice and family.


Q: Describe how the incident occurred.


A: One day out of the blue at about lunch time, a man walked into the office and announced himself as being a chiropractor. It was a name I had recognized, so I knew he was a chiropractor in the area. I never, to my knowledge, had met him before this visit. As we usually do when chiropractors come in asking for courtesy adjustments, we take care of them, and it went like any other normal visit would go with another chiropractor. We talked a little about this and that, about our practices, and everything seemed to go well. When he left, he said that he would come back and see me again. There was nothing extraordinary about his reaction to the treatment, and we stood around and talked for several minutes afterwards. He never once complained.


Q: One of the principle issues in this case was that you did not take an adequate history. Can you relate some of the details about that?


A: Generally, when a chiropractor is doing a courtesy treatment for another chiropractor, he would be cognizant and aware of his own history and the type of treatment he would want. I did ask him how he preferred to be adjusted. He did say he wanted a manual side posture adjustment. There was no paperwork involved, no formal history taken, and no chart note taken because it was a courtesy adjustment with a fellow chiropractor.


continued on next page


Plexus


Oct/Nov 2017 17


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