How to Help Deter Claims of Malpractice

By: K. Jeffrey Miller, DC, DABCO and Steven J. Kinkel, JD

It has been suggested that in the litigious environment in which we live, the practice of Chiropractic should be defensive and the practitioner should constantly be watching his or her back. An element of defensive practice is a good idea. Unfortunately, the idea can be taken to extremes, creating a paranoid atmosphere between Chiropractor and patient. This is counter-productive and results in a negative working environment for the Chiropractor.

Defensive Chiropractic should not revolve around legal rituals, but should be based upon sound principles of basic patient care. Four components of patient care weigh heavily upon the doctor’s ability to prevent or defend malpractice claims: examination techniques, justification of procedures and treatment, record-keeping, and communication skills. Assuring that the basics are covered is probably as effective as anything in preventing litigation.

Examination techniques utilized in the Chiropractic practice are influenced by several factors. The doctor’s alma mater, year of graduation, experience, post-graduate education, adjusting technique, style of practice, and patient population all play a role. Obviously, this creates diversity among Chiropractors in patient evaluation. Despite this diversity, there are basic principles, which if followed, provide for prevention and defense, if necessary, from malpractice claims. Diversity is a good thing. “One size” does not fit all, and there are few absolutes in the art and science of practicing Chiropractic.

Taking a good history is probably the most important aspect of every examination. The majority of practitioners usually have a reasonable idea of the eventual diagnosis by the end of a good history. Historical information also dictates body regions to be examined and the examination procedures, which will be required as evaluation continues.

Look for signs of non-mechanical pathology. While the majority of Chiropractic patients have mechanical pathologies, screening for other pathologies of a more ominous nature is still necessary. When you hear hoof beats, remember the occasional zebra.

Physical examination procedures are too numerous to list herein. So the following principle must be considered. Regardless of the procedures selected, the doctor should have a rationale for all tests used, a routine method of recording results and a reference for their performance and interpretation. Sticking with well-known, well-referenced procedures is a good idea. Using methods that are only used by a small group of practitioners, or that are not taught in Chiropractic colleges or post-graduate training, carries some risk.

Justification of treatment simply means having a logical reason for each procedure utilized during care. Remember, history findings determine which physical examination procedures to perform. History and physical examination findings determine which imaging and lab tests to perform.

History, physical examination, imaging and lab findings determine the diagnosis. The diagnosis determines the treatment. The patient’s response to treatment determines the continuation or change in treatment and the ultimate prognosis. Do not let a fascination with a particular procedure or gadget disrupt the logic of this order. If someone questions the reasoning behind a test or treatment, there should be a simple answer.

Good record keeping is essential to giving good care and is valuable if litigation defense is necessary. Good records are an indication to jurors that the Chiropractor is conscientious. What are good records? Good records tell the story of the patient’s health in an organized, understandable manner. Details of the onset of the condition, the diagnostic process, treatment methods, and the patient’s response to care are important. Any format that covers these items is acceptable. Doctors of Chiropractic have the advantage of picking the style of records they keep. Once a system is selected, the doctor has the obligation to use the system to its fullest extent. Record-keeping systems are only as good as the people using them. Doctors should choose a record-keeping system that reflects the method of their practice. This includes customizing forms, if necessary. Using a system, which does not match the methods in a practice, usually, means forms and notes will not be completed appropriately. Incomplete records do not assist in patient care and offer little or no defense if necessary.

The patient’s response to care is often the most-overlooked aspect of record keeping. If the patient is improving, plateaued or completely unresponsive, it should be documented. The documentation should be fair to the doctor and the patient. Doctors often record the patient’s subjective complaints about a lack of improvement, yet fail to offer an explanation for the situation. Patients with these complaints are often guilty of missing appointments, not following doctor’s orders, or participating in activities known to cause flare-ups. These situations should be differentiated from a general lack of response or a natural deterioration of a condition.

The same principle applies to adverse clinical reactions. Post-exam or adjustment soreness are common occurrences and should be so documented. Over-emphasizing a mild reaction can come back to haunt the doctor. An example of this can be found in a recent case involving a cervical manipulation. A patient reported to the senior doctor in a practice that her neck was sore after an adjustment by an associate doctor. Instead of recording the event as post-adjustment soreness or mild reaction, the doctor documented that the adjustment was “too harsh.” The comment of the senior doctor was not accurate and tended to indicate fault rather than simply a reaction to the adjustment.

The senior doctor’s comment was not fair to the associate, since he was not present when the adjustment was performed and recorded the comment without discussing the situation with the associate first. Records should be fair to the doctor and patient.

The effect of the notation was to create documentary evidence that was used by the patient in a Chiropractic malpractice claim. The note, as written, served as evidence that the Chiropractor deviated from the standard of care by adjusting with too much force. In fact, the patient simply had some residual tenderness.

Communication with the patient and a healthy Chiropractor/patient relationship is likely the most effective way to prevent a malpractice claim. The patient appreciates a kind, caring Chiropractor who listens, evaluates thoroughly and explains the need for and modes of treatment. The patient wants to feel that the doctor is interested in his or her progress and recalls the patient from one visit to the next. The patient does not want to feel that he or she is “starting over” each visit. This is an example of how record keeping and communication are related. Answering questions about treatment and generally being personable and professional are as valuable in the prevention of lawsuits as anything. Some practitioners are so loved by their patients that they would not file a claim under any circumstances. Bedside manner counts!

Chiropractors often ask, “How can I avoid being sued?” The answer is, “You cannot.” In our opinion, common sense and sound principles of Chiropractic practice are the best way to deter or defend claims of malpractice.