Chiropractic Malpractice

The Gallup-Palmer College of Chiropractic Annual Report indicates 62% of U.S. adults have experienced neck or back pain severe enough to seek treatment. ⁽²⁾ And, the Centers for Disease Control and Prevention (CDC) found that over 10% of U.S. adults visited chiropractors in 2017. ⁽³⁾

However, chiropractic care has risks. Many people have been injured during chiropractic treatment and some have even died.

Chiropractic malpractice occurs when a patient suffers injuries because a chiropractor did not follow the accepted standard of care within the profession.

Deaths and Injuries from Chiropractic Care

One study finds that 26 deaths from chiropractic care have been reported and cautions that many more may go unreported. The author points out, “The alleged pathology usually was a vascular accident involving the dissection of a vertebral artery” and concludes, “Numerous deaths have occurred after chiropractic manipulations. The risks of this treatment by far outweigh its benefit.” ⁽⁴⁾

A report on chiropractic training, practice, and research in the U.S. states, “the risk is higher for manipulation involving rotation plus extension of the cervical spine than for other types of manipulation.” ⁽⁵⁾

“Chiropractors would like you to believe that the incidence of stroke following neck manipulation is extremely small… No one really knows, however, because (a) there has been little systematic study of its frequency; (b) the largest malpractice insurers won’t reveal how many cases they know about; and (c) a large majority of cases that medical doctors see are not reported in scientific journals,” according to Steven Barrett, M.D. ⁽⁶⁾

If you have been injured during chiropractic treatment or a loved one has died from injuries due to chiropractic treatment, a lawsuit can hold the chiropractor accountable and help you gain compensation.

Weitz & Luxenberg’s personal injury team can help you determine if you have grounds for a chiropractic malpractice lawsuit.

What Is Chiropractic Malpractice?

Chiropractic doctors utilize techniques for the manipulation and adjustment of the spine to relieve pressure on nerves due to displacement or a partial dislocation. Chiropractors believe that nerve pressure and misalignment are the root cause of many conditions and diseases.

Chiropractic malpractice is improper, illegal, or negligent professional treatment by a practitioner of chiropractic medicine. There are two primary forms this malpractice can take.

• Failure to diagnose a medical condition requiring immediate attention. For example, when the chiropractor takes X-rays of your spine which show some pathology. If the chiropractor does not realize you have a potential medical situation and let you know, your problem may go undiagnosed.
• Providing treatment which leads to injury, paralysis, or death. For example, if a chiropractor induces a stroke from a cervical arterial dissection (CD) by using excessive manipulation.

CD is when a separation of the layers of the artery wall supplying oxygenated blood to the brain occurs. CD often affects the upper cervical spine and involves the internal carotid artery or vertebral artery. ⁽⁷⁾

Chiropractors treating patients for head and neck pain frequently use cervical manipulative therapy (CMT). This technique utilizes quick, thrusting movements which can lead to a stroke. ⁽⁸⁾

One recent study by the American Heart Association Stroke Council was published in the Stroke journal. Researchers conclude, “…clinical reports suggest that mechanical forces play a role in a considerable number of CDs and most population controlled studies have found an association between CMT and VAD [vertebral artery dissection] stroke in young patients.” ⁽⁹⁾

Other Ways a Chiropractor May Be Negligent

Besides the two main types of chiropractic malpractice, there are other types of malpractice that could injure you or a family member. These include:

• Failure to conduct an appropriate pre-chiropractic examination.
• Failure to conduct an appropriate history and physical examination.
• Failure to order diagnostic imaging prior to a manipulation.
• Failure to refer you to a medical doctor.
• Failure to inform you about the current risks associated with treatment.
• Failure to give you current and complete information about treatment alternatives.
• Failure to give you the opportunity to have an informed discussion about the treatment options with other health care providers.

Even chiropractors may be critical of their profession. “Chiropractic is based on a false theory [1]. Its practitioners are inadequately trained in diagnosis, and most do not know their limitations [2]. Malpractice is an inevitable result of these circumstances,” argues Peter J. Modde, D.C., one-time chairman of Washington State chiropractic society’s public relations committee. ⁽¹⁰⁾

How to Take Legal Action

Successful chiropractic lawsuits hinge upon proof of negligence (medical malpractice) by the chiropractor.

To succeed, you and your attorney must be able to establish:

• A patient-caregiver relationship existed.
• The chiropractor treated you in a manner that was somehow substandard when measured against the skill and care that a reasonably competent chiropractor would have provided under similar circumstances.
• You were injured as a result of the chiropractor’s failure to provide adequate care.
• Expert witnesses are available and willing to testify.

In some states, before filing a chiropractor lawsuit you must notify the chiropractor that you intend to sue and why. Additionally, you and your attorney must provide an expert opinion stating that the chiropractic treatment did not meet the standard of care.

Chiropractic Standard of Care

Key to your lawsuit is the complex notion of “standard of care.” The legal definition of chiropractic standard of care varies slightly from state to state.

The basic legal concept is “’What a (licensed) prudent, competent doctor of chiropractic in the same region would do in the same or similar circumstances,’” ⁽¹¹⁾ explains Michael Kohler, a chiropractic who has testified in many legal cases.

“The chiropractic standard of care represents conduct that has been established with scientific, empirical, and/or clinical evidence. Consensus opinions including such factors as how widely used the form of treatment is, where it is taught, and how appropriate it is for the condition(s) upon which it is utilized are considered,” he continues. ⁽¹²⁾

Problems with Expert Testimony

“Chiropractors are considered by the courts and legislatures to be limited practitioners of medicine,” explains Susan M. Hobson in the Indiana Law Journal. Plaintiffs in chiropractic lawsuits must “rely on expert testimony to establish the chiropractor’s negligence.” ⁽¹³⁾

Hobson points out how this can lead to problems when the use of inconsistent standards by state courts are applied. If a plaintiff turns to a physician for expert testimony in a chiropractic malpractice lawsuit, the state court may be following a “traditional common law same school requirement.” A doctor who practices one type of medicine is not qualified to give expert testimony against a doctor who practices another type of medicine.

Therefore, the state will not allow a medical doctor to give expert testimony in a chiropractic malpractice lawsuit. “Since the defendant is not a physician, courts do not prefer to judge the chiropractor by a physician due to the differences between the two in education, training and beliefs,” notes Hobson. ⁽¹⁴⁾

“A similar rationale for the same school rule is that since the plaintiff chose to seek treatment from a practitioner of one school, the plaintiff may not complain after the treatment that the practitioner did not conform to another school’s standards,” Hobson adds. ⁽¹⁵⁾

Overlap Exception

There are many exceptions to the common law same school requirement which some states employ in order to circumvent this requirement.

The primary exception is known as the “overlap” exception. In this exception, a physician may testify against a chiropractor if there is an area of knowledge or treatment common to both types of medicine. ⁽¹⁶⁾

“Whether a physician is competent to testify in a chiropractic malpractice action may be the determinative factor in a plaintiff’s case,” Hobson notes. ⁽¹⁷⁾

Federal Rule of Evidence 702

Another rule used to determine witness expertise is the Federal Rule of Evidence 702.

This rule states, “‛If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.′” ⁽¹⁸⁾

Hobson explains, “Unlike the rigid same school test, Federal Rule of Evidence 702 looks not only to the expert witness’s license or profession, but also to the possibly relevant information the witness possesses.” ⁽¹⁹⁾

Knowledgeable attorneys, such as the medical malpractice team at Weitz & Luxenberg, are familiar with the New York state court system and can help assemble expert witnesses who meet the necessary standards.

Filing Complaints with the Chiropractic Examiners Board

If you have concerns about the medical treatment you received from a chiropractor, you may want to file a complaint with the Chiropractic Examiners Board.

The process of filing a complaint differs from state to state. Generally, it is a matter of filling out and submitting a form along with any appropriate documentation.

The Chiropractic Examiners Board protects consumers through licensing and enforcement functions. Once the board receives a written complaint form, it reviews the complaint and determines if it has jurisdiction or needs to forward the complaint to another authority for action.

If the board has jurisdiction, it launches an investigation and takes action. Some actions that the board can take include reprimands or citations, probation, and license revocation.

Weitz & Luxenberg Wins Malpractice Cases

Weitz & Luxenberg’s medical malpractice attorneys have a history of success.

In one year alone, we helped malpractice clients recover $7 million.

In addition, W&L negotiated an almost $2 million medical-malpractice settlement on behalf of the estate of a woman who died.

Our firm also filed and settled an $8 million settlement for obstetrical malpractice.

W&L handled another malpractice suit that yielded a settlement of $6 million.