Published: 2010-06-05 15:16:31
Author: Greg N. Dunn, DC | Dynamic Chiropractic | March 12, 2010
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.
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