To avoid a malpractice suit, carefully document your findings and
communicate
As health care practitioners, we must accept the fact
that we live in a very litigious society.
We need to conduct ourselves and our practices in such
a way that we meet the high standards of care expected of us by society,
the courts, and our licensing boards.
Recognizing some statistical information regarding
chiropractic malpractice claims can be helpful to the practitioner. For
example, three out of every 100 chiropractors are sued for some sort of
alleged malpractice action, whereas 15 to 20 out of every 100 medical
physicians are sued. Two of the more common reasons for this statistical
difference is that medical procedures are usually invasive and chiropractic
is not. Also, medical physicians tend to have less skills in communicating
with their patients as compared to chiropractors. As for chiropractic
claims, some of the more common allegations include the following1:
• Thirty-one percent of the claims are for disk
injuries (herniations). The primary reason involves the failure of the
doctor to communicate to the patient that he has a disk problem.
• Ten percent are from aggravation of a
pre-existing condition (exacerbation) such as sprains/strains and
soft-tissue injuries.
• Twelve percent of the claims are for failure to
properly diagnose fractures. A chiropractor fracturing a patient’s
rib during an adjustment is the No 1 fracture for which chiropractors are
sued.
• Eleven percent are from failure to make a
proper diagnosis. The No 1 diagnosis failure is from cancer, missed on
radiographs.
• Ten percent are from cerebral vascular
accidents (CVA). It should be noted that this number has increased over the
past few years primarily because of public awareness of stroke.
• Eight percent are from vicarious liability. For
example, these are claims that arise from the conduct of employees and
business associates.
• Five percent are from skin burns resulting from
hydrocollator packs, ultrasound therapy, etc.
• Thirteen percent are from other causes.
Excluding some of the more common causes of malpractice
just listed, doctors can be sued for violating professional boundaries.2 Examples include
committing fraud, engaging in sexual misconduct, or developing
inappropriate relationships such as dating patients. It has been reported
that chiropractors are 3.39 times more likely to be involved in violating
professional boundaries than medical physicians.3,4
Whatever the cause, violating professional boundaries
is not included under malpractice claims but is classified as a separate
component that oftentimes is attached to a claim of malpractice. These
situations are absolutely inappropriate and difficult to defend. Therefore,
the financial burden for this type of defense falls onto the practitioner.
Chiropractors should be aware that malpractice
policies cover only compensatory damages. This means punitive damages are
not covered under malpractice insurance. Punitive damages are usually
awarded when a jury feels the doctor should be punished because the jury
believes he tried to deceive them. Examples include filing fraudulent
claims, altering records, and committing professional misconduct. In these
situations, plaintiff attorneys try to attach a charge of alleged
malpractice, which would give attorneys an opportunity to go after the
malpractice carrier to obtain maximum monetary damages. However, if a
chiropractor is found guilty of violating professional boundaries,
malpractice carriers are not obligated to make monetary payouts for it. For
these and other reasons, it is essential for doctors of chiropractic to
practice with the utmost of professional and ethical conduct.
Documentation
Documenting clinical findings and justifying medical
necessity of care will also limit exposure to liability. Office notes
should always be legible and understandable and should document all needed
tests and missed appointments.5-7 Documentation begins when the patient first enters your
office and should continue throughout the entire process of the
patient’s care. Documentation includes all medical information
gathered from the patient by the office staff and doctor.5 Examples are patient
intake forms, history, past medical history, family history, physical
examination findings, diagnostic imaging and/or laboratory tests, as well
as charting the daily progress notes. Addressing these medical guidelines
will provide patients with the highest quality of care. Good documentation
protects the best interests of both patients and doctor.
Communication
Probably the most important component to minimize and
hopefully avoid a charge of malpractice is good verbal communication. From
a legal standpoint, lack of proper communication is often cited as the
primary reason patients file a lawsuit against their doctor. Many patients
who experience a poor medical outcome, but have good communication with
their doctors, will tend not to pursue legal action when an adverse event
occurs.5
Many malpractice cases against doctors have to do with
allegations associated with the initial visit. The reason for this is that
malpractice cases tend to contain allegations that the doctor failed to
obtain and perform an appropriate history and proper examination as well as
failed to take and/or order appropriate diagnostics. This is why the
doctor’s actions and appropriate documentation during the initial
visit can make or break the defense of a malpractice case.8
The moment patients first make contact with your
office, they are evaluating your facility and your staff. For example, they
are noticing how your staff greets them on the phone and at the office.
They are also observing how easy it is to make an appointment, the decor
and comfort of your office, and the waiting time to see you. Office staff
is the first line of communication, thus creating the patient’s first
impression.5 It is crucial that your office staff is trained to be
courteous and that you convey a policy that your practice provides your
patients with the care they expect and deserve.
Good verbal communication sets the stage for the
entire doctor/patient relationship and begins when the patient first enters
your office.2,5,7 This process should be maintained during the interview and
throughout the examination and treatment management of the patient.
This approach is the way to build trust with the
patient, and the doctor should be empathetic, respectful, and genuine.
Also, the interview process can be used as a diagnostic to assist with
future treatment. The more information the clinician obtains, the greater
chance for a successful therapeutic outcome.7 Good verbal communication helps the patient overcome any
feelings of vulnerability and/or loss of control.2 Explaining to the patient
your procedures and treatment plan helps the patient feel secure that he is
receiving the proper care.2,5 In addition, providing privacy for sensitive health matters
and payment issues is most important, especially in light of the federal
Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy
laws. When dealing with minors, always obtain parental or guardian
authorization; and whenever possible, allow the parent or guardian to
observe the treatment.2
The doctor should know his scope of practice and be
focused on achieving the highest degree of clinical and technical skills.
Always be clear and concise when explaining medical options and treatment
plans. Never promise or guarantee the results of any proposed treatment
regimen. Always obtain informed consent, and when possible, communicate
with other health care professionals involved in the patient’s
comanagement. You can communicate this information by phone, letter, fax,
or e-mail.7
Providing some form of easy access to reach your
office is necessary in the event of an emergency.5 This can be accomplished
by way of a cell phone, pager, answering machine, voice mail, or e-mail.7 This approach
makes good sense from a legal standpoint as well.
Performing all examinations and treatment during
normal business hours is highly recommended, especially when dealing with
patients of the opposite sex. Having a staff member present in the office
while treating patients or performing sensitive procedures and examinations
should be considered standard protocol. Providing patients with
instructions regarding removal of any clothing is important, and the
patient should be draped during examinations and treatments. If
undergarments need to be removed for a certain procedure, like x-rays,
explain the reason to the patient. Expose only the anatomy necessary to get
the procedure performed. Chiropractic is a physical interaction (hands-on
treatment), so once again, good verbal communication is an absolutely
necessary component to this physical interaction.2
Components of Malpractice
Recognizing and understanding the four components
comprising the legal definition of malpractice is essential. The first
component establishes that a doctor-patient relationship exists. For the
second component, a breach of the doctor-patient relationship must have
occurred, usually a result of something that has gone wrong. Examples would
be if the doctor performs an adjustment and causes a rib fracture; or if
the doctor fails to make a proper diagnosis of cancer, triple A (abdominal
aortic aneurysm), infection, or fractures of various types; or fails to
make a referral when medically indicated. In the third component, some kind
of injury or harm must have resulted from that breach of duty. Finally,
with the fourth component, there must be a reasonable period of time
between the breach and the injury. For a malpractice action to proceed
forward, all four of the above components have to be met.6,9
Informed consent is another important issue the
chiropractor should address. The DC must understand that informed consent
is a process of communication between the doctor and the patient.6-10 Therefore, just
using an informed consent form is not sufficient. An informed consent form
should be combined with verbal communication and a written entry into the
patient’s chart regarding the discussion of informed consent. If
there is a risk of harm or injury from a particular treatment being
recommended, it is the doctor’s responsibility to tell the patient
about such risks.6,8-11 In addition, the patient should be willing to accept such
risks. The doctor has no legal obligation to disclose or discuss risks that
are considered immaterial. The less serious the risk, the lower the chances
of anything untoward happening. Therefore, it is less likely the legal
system would require such disclosure.6,10
The following four components should be kept be mind
when discussing informed consent with patients. The first component is
information, which a “reasonable person” would want to know
about the nature of the procedure and the risk/benefits (in non-technical
terms), along with alternative options available. The second component is,
the patient must understand all information provided. The third component
must give the patient the right to freely make his own decision without
interference from the doctor.6,7,9 The patient, not the doctor, makes the decision to proceed
with the treatment plan once fully explained. This is referred to as
“gaining informed consent.”6,7 With the fourth component, the patient must be capable of
making an independent medical decision concerning his planned treatment.6,7,9
Some standard items should be included in an informed
consent form. For example, it should include an area for the date, the
patient’s name, date of birth, diagnosis, and
a basic description of the proposed procedure. Any significant adverse risk
of the proposed treatment or procedure, including the frequency of harm
should be included. Alternative treatment options that are professionally
accepted or evidence-based should be included, along with the risks of
doing nothing (not having any treatment or procedure performed). The
consent form should also include an area of acknowledgment that the
patient’s questions were fully answered and a space should be
provided for the patient, doctor, and witness to sign. If the patient is a
minor, the form should include a section for the parent or guardian to
sign.11
Doctors are required to make decisions in the best
interest of their patients and not themselves. This fiduciary
responsibility, and the intimate nature of the doctor patient relationship,
requires that all physicians conform to the highest moral and professional
standards that lawmakers and the public expect from all healthcare
providers. One must not forget, it is critical that patients feel they can
trust their doctors.2
Paul Sherman, DC, practiced in New Jersey for 16 years. Presently, he is an
assistant professor of clinical sciences and a postgraduate faculty
instructor at the University of Bridgeport College of Chiropractic,
Bridgeport, Conn. He is also an instructor and writer for Chirocredit.com,
a chiropractic continuing education Web site. He can be reached at
drprsherman@aol.com
References
1. NCMIC statistics presented at Chiropractic Solutions Risk Management seminar, University of Bridgeport College of Chiropractic.
3. S Perle. Quomodocunquize, ultrasrepidarian, boundary violation, Dynamic Chiropractic, October 12, 2006, vol 24(21).
4. SM Foreman, MJ Stahl. Chiropractors disciplined by a state chiropractic board and a comparison with disciplined medical physicians, J Manip Phys Ther, 2004; 27(7): 472.
As health care practitioners, we must accept the fact
that we live in a very litigious society.
Communication 
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