Avoiding malpractice lawsuits
By Timothy Feuling

When it comes to risk management, there’s one thing every chiropractor has to bear in mind: You will probably, at some point during your professional career, be sued or face a board complaint.

In this age of multi-million-dollar judgments, you can’t afford to take any chances. By making risk management an integral part of your daily practice routine, you can “bullet proof” your practice.

The following is a brief rundown of the three major risk management problem areas and ways to protect yourself.

RISK #1: MISSED OR INCORRECT DIAGNOSES

Patients rarely understand the intricacies of chiropractic scope issues. They see ads for chiropractic medicine clinics and may assume you are a type of medical doctor, especially if you project a medical image by wearing a white lab coat and hang a stethoscope around your neck.

These assuming patients may expect full-body differential diagnoses of all medical diseases and for you to either treat those conditions or refer them to appropriate medical providers. If their expectations are not met, they are more likely to be disappointed, upset, and angry — and more likely to file a lawsuit or board complaint.

How to reduce your risk:

• Prevent confusion. Educate your patients about the nature of your care. If you do not offer full medical diagnoses, explain exactly what services you do offer.

• Be consistent. Make sure your actions are consistent with your stated purpose. If you say you do not make medical diagnoses, but then perform medical tasks not related to your stated practice purpose, you are contradicting yourself and confusing the patient.

• Get it in writing. A “terms of acceptance” or “informed consent” form explains — in plain language — what you will and will not do for the patient. Ask the patient to read and sign the form before you begin providing care.

Getting a signed informed-consent form does not relieve you of your responsibility to make clinical judgments about the appropriate use of chiropractic care or notify the patients of any non-chiropractic findings you uncover during your examination. But it does create more reasonable patient expectations that will protect you against most accusations of missed or incorrect medical diagnoses.

RISK #2: POOR RECORDKEEPING

The importance of proper record-keeping cannot be overemphasized. According to the Risk Management Foundation of the Harvard Medical Institutions, “Missing, incomplete, or illegible documentation can seriously impede patient care and the defense of a malpractice claim, even when the care was appropriate.”

An article in Medical Economics (“Sloppy records — the kiss of death for a malpractice defense,” by Rebecca Kightlinger, June 7, 1999) warned: “In reviewing potential cases, a plaintiff's attorney will look at a sloppy, incomplete, and possibly altered record and see a gold mine. Your liability insurer, on the other hand, will see an indefensible case ... if the physician’s records are ambiguous, careless, incomplete, or — worst of all — look as though they’ve been tampered with, a defense attorney can do little more than advise his client to start writing the settlement check.”

How to reduce your risk:

• Maintain accurate records. Keeping accurate, factual records of each contact with every patient (including family members, employees, etc.) builds a powerful defense wall around your practice. If possible, make the switch to electronic record keeping — today’s preferred method for all healthcare professions.

• Keep the originals. Be sure to retain all original records, x-rays, or other material, which document a patient’s care. If a patient requests his or her records, provide copies only.

• Do not alter records. Never, under any circumstances, alter any patient record. Although you will need to review your records if faced with litigation, never add, delete, or change anything! Any change made after the fact — no matter how minor or “innocent” — will be considered suspect in a court proceeding and can damage your credibility beyond repair.

RISK #3: SEXUAL MISCONDUCT

This is a wide-ranging category that covers several types of behavior, ranging from inappropriate language to sexual assault. It’s also one of the most common causes for lawsuits. According to Thomas J. Overton, general counsel for the Colorado Chiropractic Society, writing for the Colorado Chiropractic Journal, approximately 10 percent of complaints filed with his state’s Board of Examiners during the last two years were for sexual misconduct.

Although each country and U.S. state defines sexual misconduct differently, the basic categories are similar — sexual impropriety, sexual transgression, and sexual violation.

Sexual impropriety is non-physical misconduct, such as “gestures or expressions that are sexually demeaning to a patient, or which demonstrate a lack of respect for the patient’s privacy.”

This encompasses dirty jokes, sexual innuendos, crude gestures, vulgar suggestions, or unseemly comments of a sexual nature — anything that might be interpreted (or even misinterpreted) as sexual.

How to reduce risk:

• Let your patients know. Don’t let your patients engage in such behavior. In an ABC News interview, attorney Elizabeth Kuniholm noted: “It is absolutely the doctor’s duty to maintain proper boundaries with patients. It is, therefore, the doctor’s duty to make sure those boundaries are not crossed, even if it is the patient who initiates it.”

• Set the boundaries. If a patient says or does anything that even vaguely hints at impropriety, you should immediately make it clear that such behavior is not acceptable. This can be a stern look or a simple, “I’m sorry, but that kind of talk makes me uncomfortable.” Or, it can be a more complete discussion of the proper boundaries to a patient-doctor relationship, with a CA present.

Sexual transgression is inappropriate touching of a patient, stopping just short of an overt sexual act. Since chiropractic is a “hands-on” profession, it is easy for a patient to misinterpret the contact and perceive it as sexual impropriety.

How to reduce risk:

• Have someone present. Whenever possible, make sure your CA is in the room when adjusting or examining a patient of the opposite sex.

• Open the door. Take other measures to ensure privacy, but keep the door of the adjusting/examination room open.

Sexual violation is a sexual act between patient and doctor. The law makes no distinction between which party initiated the contact or whether the act was consensual.

How to reduce risk:

• Remain professional. Avoid all romantic and sexual relationships with patients.

• Refer the patient. If a romantic interest develops, refer the patient to another doctor for care.

You need to be aware of and guard against a number of other pitfalls, such as inappropriate referrals, providing care deemed “not medically necessary,” HIPAA violations, and vicarious liability. In addition, you need to school yourself in the proper way to prepare and respond in case of a lawsuit or a board complaint.

Timothy J. Feuling is president of Chiropractic Benefit Services (CBS), a malpractice insurer. The CBS Web site — www.CBSmalpractice.com — contains numerous articles on risk management. He may be contacted at 800-883-0412 or by e-mail at tfeuling@cbsmalpractice.com.