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ExaminerCOMPELLING CASE STUDIES AND PRACTICAL TIPS FOR AVOIDING A MALPRACTICE ALLEGATION

NFL 3945

12How to Handle theNoncompliant Patient

8E-Communication Can Be E-Discovered

16Are D.C.s Protected

by Good Samaritan Laws?

CONTINUED ON PAGE 2

Leah Harms was a 44-year-old pharmaceuticalresearcher and consultant who earned$200,000 a year when she first presented toWilliam Westoff, D.C., in July 2006. Leahreported symptoms of back pain that beganafter her dog suddenly yanked on the leashduring a walk. Leah brought with her an MRIfrom 2003 that revealed an L5–S1 bulging discwith desiccation.

At Leah’s first visit, Dr. Westoff determinedtreatment by feeling the joints and paraspinal musclesfor tone, inflammation, swelling and intersegmental jointrestriction. He also used global biomechanics, patientrange of motion, and tests to assess muscle and jointintegrity. He tested orthopedically and by checkingLeah’s deep tendon reflexes. These findings werenormal. Because Dr. Westoff did not typically recordnegative/normal findings, they were not documented.

From his evaluation, Dr. Westoff found weakness inLeah’s left soleus and the musculature in her lowerback. He found no atrophy or dysfunction. Her deeptendon reflexes of the upper and lower extremities werewithin normal limits.

Through various testing, Dr. Westoff identified that

Leah’s left quadriceps muscle and range of motion werenot within normal limits. She had positive findings on theNachlas and Yeoman’s Tests, as well as on the straight-leg raise at 80 degrees.

However, because Leah had no loss of reflexes,atrophy of the extremities, nerve root tension signs orextreme pain, Dr. Westoff didn’t believe she needed afollow-up MRI. Dr. Westoff determined the causes of herleft-sided sciatic pain were multifactorial and includedLeah’s weight gain, history as a cigarette smoker, drivingseveral times a week for 10–14 hours per day, and thepreviously diagnosed lumbar degeneration anddesiccated bulging disc. Dr. Westoff believed the sourceof the sciatica was the L5–S1 disc, and it would onlyworsen over time. However, he did not communicatethis to Leah.

The chart did not indicate if he performed anadjustment at the first visit, but it did reflect that headjusted her when she returned two days laterdescribing similar symptoms in her low back and hip.

Doctor Provides AdjustmentAt this second visit in July 2006, Dr. Westoff

adjusted Leah with her lying recumbent on her side. His

Doctor Struggleswith Patient Noncompliance

Both the doctor and the patient play importantroles in obtaining good outcomes. However, thedoctor shouldn’t cede control of the care approach.

normal process was as follows: Her lower leg would be straight,

while her upper leg would beflexed hip high, so that her footwould be behind the knee of herstraight leg.

Her arms would be crossed overher chest.

Dr. Westoff would then place hisright hand on the patient’s armsand his left hand on the lowerback at the facet joints of L3-4,L4, L5 and the sacroiliac joints.

Dr. Westoff would then use hisright hand to stabilize Leah whilehis left hand created posterior-to-anterior pressure on her low back.

Dr. Westoff would know themaneuver was successful if theback became facilitated or therewas an audible sound.

If this adjustment didn’t result in the appropriate relief, Dr. Westoffwould slightly alter the treatmentmethod and try again. The alternativemethod was exactly as previouslydescribed, except that instead of hertop leg bent and put behind the kneeof the other leg, it would be stretchedstraight out and elevated. Dr. Westoffwould provide the adjustment underthe top leg and behind the hamstring.

Dr. Westoff’s chart neverdistinguished whether the firstadjustment obtained the result hewanted, or if he had to move to thesecond form of adjustment. He laterrecalled that several times betweenJuly and September 2006 he had to move to the second adjustment,due to Leah’s back being tight or thefirst adjustment not providing thedesired response.

In addition to the chiropracticadjustments, Dr. Westoff alsoprescribed a regimen of moist heat,electrical muscle stimulation,ultrasound, trigger-point therapy andhome exercise. Dr. Westoff recalledthat Leah often declined thesetherapies, due to time constraints. Dr. Westoff didn’t recall if he everdiscussed the need for thesetherapies with Leah or determinedwhether she was performing theprescribed exercises at home.

Dr. Westoff treated Leah 18 timesbetween July 2006 and September2006, during which she reportedvarious symptoms at each visit. Theyincluded left sciatic pain, right armpain, mid back pain, low back pain,restless leg syndrome and footcramping in the arches of her feet.The symptoms that manifestedthemselves the most were left-sidedsciatic pain into her hip and low backpain.

Other than slight progress to the function of her spine, Leah’soverall condition was essentially thesame at each visit without muchimprovement. Dr. Westoff did notconsider a referral to anotherspecialist since Leah was notcomplaining of severe pain, andneither neurological symptoms nordysfunctions were present. BecauseLeah was not complying with thephysical therapy in his office, Dr.Westoff surmised that she was notcomplying with her home exerciseprogram either. Dr. Westoff believedLeah’s lack of compliance was thereason her symptoms hadn’timproved significantly.

In September 2006, Leah was

scheduled for breast reductionsurgery, and she stopped seeing Dr. Westoff. After recovering fromsurgery, Leah began working out witha personal trainer, which left her sore.As a result, Leah called Dr. Westoff’soffice and was able to convince thereceptionist to squeeze her in for anappointment on December 22, 2006.

Treatment After Care GapDr. Westoff’s customary practice

was to conduct a complete re-evaluation after not seeing a patientfor three months or more. However,Dr. Westoff didn’t consider Leah’scondition to be significantly differentfrom prior visits. What’s more, Leahwas pressed for time and just wanteda quick adjustment to relieve herdiscomfort. Consequently, Dr.Westoff proceeded to adjust herwithout a complete re-evaluation.

Dr. Westoff later recollected thatthere was nothing unusual aboutLeah’s presentation, other than shehad more hypertonicity and tensionthan she had during prior treatments.His first attempt to adjust Leahproved unsatisfactory, so he tried the previously described alternativetechnique. Leah contended thatthere was significantly more forcewith this second adjustment, and she felt pain immediately after it.However, because the pain was notdebilitating, she did not mention it toDr. Westoff or his staff.

Immediately thereafter, Dr.Westoff’s office was closed for theholidays. During this time, Leah latertestified that her back discomfortworsened, and the pain begantraveling down her leg.

2 | NCMIC Examiner | Summer 2013

Dr. Westoff believed Leah’s sciatica would worsen overtime, but he did not tell her this.

Leah sent an email to Dr. Westoffon December 27, 2006, in which sheclaimed she developed a sharp painin her right hip 24 hours after theDecember 22, 2006, adjustment.Advil hadn’t controlled the pain, soon December 26, 2006, Leah’s sistergave her a Percocet, which also

provided only minimal relief. Dr.Westoff replied to Leah’s email byasking her to return to his office theevening of December 27, 2006, for are-evaluation of her condition.

Leah was able to go to thatappointment, and Dr. Westoffperformed a more completeexamination this time. Leah’s heel-to-toe walk test was negative, thestraight-leg test was positive at 45degrees, and Braggert’s was positiveon the right. Dr. Westoff found jointdysfunction at L4–5 and at thesacrum. Leah had myofascialinflammation at the piriformis on theright and in the lumbar paraspinals.

Her range of motion was severelyguarded and painful. Dr. Westoff also wanted to test Leah’s deeptendon reflexes, but she was toouncomfortable to do this test.

Dr. Westoff did not adjust Leahon December 27, 2006. Instead heplaced her in a traction position tohelp decompress the discs, and heapplied ultrasound for six minutes.Dr. Westoff recommended ice andrest and that she follow up with herprimary care provider for medications.

Dr. Westoff did not documenthow Leah responded to the carerendered at this visit. Although Dr.Westoff was concerned that Leah’ssymptoms had shifted to right-sidedpain, he did not refer her to anorthopedist or a neurosurgeon.Instead, he referred her for an MRI for the following day.

Doctor ApologizesDuring this same December 27,

2006, appointment, Dr. Westoffinformed Leah that he should nothave attempted the December 22,2006, low back adjustment “cold,”without a proper assessment. Headmitted he was responsible forLeah’s injury and said he was verysorry he hurt her.

On December 28, 2006, Leahhad the lumbar MRI Dr. Westoff hadordered. In addition, she contactedher primary care physician whoarranged for her to be seen by a painmanagement specialist that day.

When Dr. Westoff followed upwith the director of the radiologyclinic about the MRI, he learned thatLeah had a chronic but exacerbatedL5–S1 disc bulge. To Dr. Westoff, thisindicated that Leah’s sciatic pain onDecember 27, 2006, was consistentwith a minor bulge.

Dr. Westoff left a voicemail

message for Leah on December 29,2006, asking her to call him back todiscuss the results of the MRI andschedule an appointment. Later thatday, Leah returned the call and toldDr. Westoff’s receptionist that shehad received an epidural injection theprevious day and would not bereturning for chiropractic treatment.

Leah’s first and second epiduralinjections proved to be ineffective.Therefore, Leah was referred to spinesurgeon, Larry White, M.D., who sawher on January 12, 2007. Dr. White’sreading of the MRI showed a 90percent disc collapse at L5–S1,which made her spine unstable. Dr.White also thought the disc herniationwas compressing two separate nerveroots and was “a case of impendingcauda equina syndrome.” Dr. Whitetold Leah it was his opinion that if shedidn’t have surgery within one week,she would require surgery on anemergency basis for cauda equinasyndrome in the future.

On January 14, 2007, Dr. Whiteperformed a lumbar fusion withinterpedicular screws and ipsilateralconnecting rods at L5–S1. AfterLeah’s five-day hospital stay, she stillhad significant pain but wasimproved enough to go home.

By April of 2007, Leah was ableto walk for more than one mile at atime and no longer needed painmedications. She was also able touse an elliptical trainer and performabdominal strengthening exercises.

Lawsuit EnsuesIn spite of her overall good

physical condition, Leah Harmsdecided to sue William Westoff, D.C.The first count of the complaint wasthat Dr. Westoff:• Failed to perform appropriate

diagnostic studies and related

NCMIC Examiner | Summer 2013 | 3

CONTINUED ON PAGE 4

Dr. Westoff assumed there was noneed to record normal findings.

evaluation prior to applyingsignificant physical force to thelumbar spine.

• Applied physical force to thelumbar spine that was excessiveand inappropriate under thecircumstances.

• Used a chiropractic manipulationthat was contraindicated.

The second count of thecomplaint was for lack of informedconsent. The plaintiff (Leah Harms)contended that if she would havebeen informed about the risksassociated with the proceduresperformed by Dr. Westoff, she wouldnot have consented to them.

The plaintiff retained achiropractic expert to attempt toestablish that Dr. Westoff breachedthe standard of care. The expertconsultant opined:• When Leah presented to Dr.

Westoff in July 2006 with left-sided radicular symptoms, thestandard of care mandated anMRI be obtained.

• With the lack of progress, Dr.Westoff should have obtained anMRI by September 2006.

• When Leah’s condition didn’timprove by September 2006, sheshould have been referred to anorthopedic surgeon or aneurosurgeon.

• Dr. Westoff should have insistedthat Leah follow his prescriptionfor physical therapy modalitiesbefore performing chiropracticadjustments.

• When Leah returned for care onDecember 22, 2006, Dr. Westoffshould have performed a re-examination with orthopedic andneurologic testing.

The plaintiff’s surgical expert, LarryWhite, M.D., (also Leah Harms’surgeon) contended that the

chiropractic adjustment on December22, 2006, caused the condition Leahpresented with on January 12, 2007.He based his opinion on the historyLeah had provided to him. Thisincluded that Leah had developedacute right-sided hip pain within 12 hours following the chiropracticadjustment, and that her right legsymptoms progressed until Dr. Whitefirst saw her on January 12, 2007.

Dr. White also opined that thetwisting, rotational motion of thechiropractic adjustment administeredon December 22, 2006, caused theherniation. Moreover, Dr. Whitecriticized Dr. Westoff for notconducting orthopedic andneurological testing beforeadministering the chiropracticadjustment on December 22, 2006.

Defense CountersThe NCMIC-retained defense

counsel thought that, from a standardof care standpoint, the mostvulnerable area of Dr. Westoff’sdefense was the manner in which hehandled the patient’s re-examinationon December 22, 2006. Dr. Westoffconceded that he would havenormally performed a more completere-examination after a 3–to–4 monthhiatus from care, but Leah waspressed for time that day.

Experts retained for Dr. Westoff’sdefense contended that while a re-examination would have beenappropriate, it was not mandatory.The reason for this was that Leah’scondition was not significantlydifferent than it was in September2006. Even if a re-examination wouldhave been performed, its findingsprobably would not have altered theprescribed care.

The NCMIC defense teamretained a radiologist on behalf of Dr.Westoff to review the plaintiff’s 2003and 2006 imaging studies. The crux

of this doctor’s opinion was that anychanges in the 2006 MRI comparedto the 2003 MRI were a result of achronic process. They were notcaused by a particular event.

He supported this opinion bypointing to “associated changes” thatwere observable in the imagingstudies. These included: For L5–S1, changes in the bone

and irregularity of the endplateindicated a chronic process.

Modic-type two changes of theendplates adjacent to theabnormal disc indicated achronic rather than an acutecondition. (Modic changes arepathological changes in thebones of the spine and thevertebrae. These changes aresituated in both the body of thevertebrae and in the end plate ofthe neighboring disc.)

An articular facet joint arthropathyindicated abnormal chronic stress.

There were no soft tissuechanges or bony changesconsistent with an acutetraumatic process, such as afracture, dislocation, soft tissueswelling or soft tissue edema.

The plaintiff contended that shecontinued to experience significantdiscomfort and loss of range ofmotion in her spine. She alsomaintained she was no longer able torun, lift things around the house ordrive long distances. Her medicalbills totaled more than $73,000.

Leah lost her job in October2006 and was unemployed whenshe returned to Dr. Westoff’s care inDecember 2006. While she was ableto later obtain employment, she stillpursued a wage loss claim. Shecontended that she would not beable to be promoted in her currentjob without traveling extensively,which her injuries prohibited.


What Can we Learn?

Insist on patient responsibilities. To obtain overall successthrough therapeutic intervention, patients must comply withdoctor recommendations. (See related article on page 12.)This is in a patient’s best interest, and doctors shouldconfirm patients are adhering to the recommendedtreatment protocol. If not, they should explain why it isimportant and document their rationale, while avoidingnegative commentary about a noncompliant patient. In this case, it appears the patient did none of the advisedrehabilitation exercises or home therapies.

Stick to your custom and practice. Dr. Westoff wasattempting to accommodate a busy patient when he failedto adhere to his normal re-evaluation protocol. Essentially,he allowed the patient’s desires to influence him to deviatefrom his custom and practice. What’s more, if Dr. Westoffwould have followed his standard process, he might havefound clinical indicators that altered how he providedtreatment that day.

Document the normal, as well as the negative. It isimportant to record negative findings, as well as a rationalefor why a test or referral was (or was not) ordered or made.An explanation in the records explaining why a test findingor referral would have been immaterial can be invaluablewhen a malpractice allegation is initiated months or evenyears later. It supports the thought process of the doctor. Inthis case, Dr. Westoff wrongfully assumed there was noneed to record normal findings, and he failed to document

his reasoning for not referring the patient to anotherspecialist or further testing.

Obtain informed consent. An allegation of failure to obtain informed consent is a component of almost everymalpractice case in today’s legal environment. In this case,Dr. Westoff should have had an informed consent discussionwith Leah Harms about the progressive nature of hercondition and risks of treatment and documented it. Ideally,the patient would also have signed a form listing thespecific risks/benefits of treatment.

Refer, re-evaluate or raise your index of clinical suspicionwhen there is no improvement. Usually, there arediscernible changes in symptoms to a patient over time. IfDr. Westoff would have had a process in place to ascertainclinical changes, he would have discovered the patient’spain increased after his second adjustment on December22, 2006. Many times, it can be beneficial to have patientsfill out interim update forms to help identify these changes.

Be careful with apologies. Having empathy for a patientdoesn’t mean admitting wrongdoing or negligence. Thingsyou say, even if meant to empathize or sympathize, may beused against you in court. Further, many states haverequired guidelines on this issue and some even require anapology in certain situations. NCMIC encourages doctors tocall its Claims Advice Hotline at 1-800-242-4052 as early aspossible when encountering an uncomfortable patientsituation, including whether an apology might be in order.

By Jennifer Herlihy, Boston, Massachusetts, and Providence, Rhode Island

Case Goes to MediationThe case was then scheduled for

mediation. The NCMIC-retaineddefense attorney identified majorobstacles in obtaining a favorableverdict for Dr. Westoff. These included: Dr. Westoff’s failure to conduct a

re-examination before theDecember 22, 2006 adjustment.

The fact that the plaintiff’s condition deteriorated post-

adjustment and that Dr. Westoff did not obtain her informedconsent before treatment.

Dr. Westoff’s continued belief that he was to blame, and hewas likely to concede fault whenpressed at trial.

Dr. Westoff had told the patienthe had caused her injury, whichcould be treated as an admissionof liability at trial.

After giving the matter carefulthought, Dr. Westoff decided he didnot want to go to trial, and he gavehis written consent for NCMIC toresolve the claim. After a full day ofmediation, the case settled for$147,500, plus the cost of mediation.Defense costs to defend Dr. Westofftotaled more than $88,000. 7

Examiner case studies are derived from theNCMIC claims files. All names used inExaminer case studies are fictitious to protectpatient privacy.


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One of the most importantstages of a lawsuit is called“discovery,” the fact-findingprocess that is undertakenbefore trial by the partiesinvolved in the lawsuit. Untilrecently, discovery has focusedon the request for paperdocuments.

Today, however, mostdocuments are not paper. And, as aresult of a 2006 “e-discovery” updateto the federal rules of Civil Procedure,everything entered into a doctor’scomputer system, sent out via e-mailor posted on social media is fairgame for discovery.

Many D.C.s are not aware of thee-discovery rule, yet it

applies to all healthcareorganizations—

includingchiropracticpractices—andincludesrequests fordigitally or

electronicallystored information,

or “e-discovery”requests.

Doctors who are unable tocomply with the rule during litigationcan jeopardize the defense of theircase and face possible courtsanctions. What’s more, doctors maybe liable for the actions of their staff.

Consider the following exampleof how e-discovery can come intoplay in a chiropractic practice.

Key Legal Issues:Prevention/Preservation

Prevention: It is important toremember that an email creates apermanent, reproducible and dateddocument that can become evidencein a malpractice, employment or any

other court case. Email exchanges–even those that are “casual” in natureor have been deleted–could beretrieved and presented before a juryon a 10’ by 10’ screen. Do not writeanything in an email that you would notput in a letter or read to a judge or jury.

E-CommunicationsCan Be E-Discovered

A chiropractic assistant filed a sexual harassment claim against thepractice’s office manager. She alleged the office manager made persistent,inappropriate sexual advances to her. What’s more, the chiropractic assistantcontended that after she rejected these advances, the office managerthreatened to fire her.

After she reported the office manager’s behavior to the doctor, the officemanager reportedly professed his innocence. He claimed it was a case of “hesaid/she said,” and that her accusations were completely unfounded. Thedoctor told the chiropractic assistant that she must have misinterpreted thesituation, and the matter was essentially dropped as far as he was concerned.

The employee then hired an attorney to file an action against the officemanager and the practice. When the doctor received a subpoena for internalemails between the office manager and the chiropractic assistant, he deniedtheir existence other than an initial “new employee” email sent on thechiropractic assistant’s first day of employment. This email was turned over to the plaintiff’s attorney.

That was not the end of things as the employee had printed out everyincriminating email the office manager had sent to her during office hours overa four-month period. It was later determined that, upon receiving notice of theclaim, the office manager had accessed the practice’s computer system anddeleted all emails he had sent to her, as well as her responses. He alsocontracted with the practice’s IT consultant to “clean” the main hard drive.

In a case like this, in addition to losing the sexual harassment case, theoffice manager and the practice could be hit with a significant monetarysanction for attempting to thwart the e-discovery of evidence.

As the scenario reveals, many times data can be recreated throughforensic work. “Cleaning” the hard drive may or may not remove all of the data in question. What’s more, the practice can be held liable even when,unbeknownst to the doctor, an employee attempts to conceal information. In addition, e-discovery could be extended to an individual’s home computer in some instances.

Scenario

Any time an e-record is

accessed, theEHR systemtracks theaction,

enabling it tobe retrieved

later.


Preservation: Once a person orcompany is put on notice of a claimor lawsuit, there is a legal obligationto preserve and prevent thedestruction of potentially relevantdocuments, electronic documentsand email. This includes suspendingany automatic recycling ordestruction settings in an email orelectronic health record system. Inaddition, electronic records must notbe altered after receiving notice of aclaim or lawsuit. Opposing attorneysmay subpoena the softwaredatabase if they suspect a recordmay have been changed. Thesoftware may show which changeswere made and when. There’s nofaster way to damage your credibilityin court than having a plaintiff’sattorney stand in front of a judge andjury and prove that your records werealtered after receiving notice of a claim.

Policies and Procedures The importance of developing

e-discovery policies and proceduresto be able to retrieve and produceelectronic information on request in atimely manner is clear. To get started,it can be helpful to consider thefollowing questions: • Could your practice easily

comply with a subpoena forintra-office emails relating to aspecific employee or patient?

• Could it comply with such asubpoena several years after the fact?

• Is everyone who uses thepractice’s EHR system awarethat it keeps “metadata”? Inother words, anything theydocument, review and delete willremain in the system, along withthe exact date and time theactions were performed.

• Can the practice easily producedigitally stored radiographs or aspecific electronic claim

submitted to a third-party payerupon request?

• Can a practice produce theseitems and remain in compliancewith HIPAA and HITECH privacyrequirements regardingelectronic PHI?

E-Discovery Readiness Ideally, staff should know what to

do if the practice receives a subpoenafor records or an e-discovery request,and the practice will proactivelyassess its existing systems, policies,and procedures. The staff shouldensure the practice complies with the state’s e-discovery requirements.Here are some tips to help yourpractice become e-discovery ready: Implement a policy to address

the retention, retrieval anddestruction of records. The policyshould identify what data thepractice should not release orwould require special consent torelease, e.g., records containingprotected information on HIV,AIDS or substance abuse. Thepractice’s “metadata” may flagthese records and help preventtheir inappropriate release.

Log, track, and record thechain of destruction ofrecords, e.g., noting back-uptapes were destroyed by ashredding company andretaining the log of tapes withdates, version numbers and/ortape inventory numbers. If youreceive notice a lawsuit or legalclaim, put any destructionpolicies on hold.

Develop security, retention,and accessibility policies andprocedures for electronicdevices used in the practice,including voicemail messages,text messages, smartphones,tablets, laptops, websites, andblogs. Use care when destroying

or recycling any electronic deviceor equipment that containspractice information and trackthe destruction process.

Consider HIPAA requirementsprovided for record integrity andsecurity of any electronic datareceived, transmitted or stored.These may include implementinga secure network, dataencryption, data back-up andoff-premise storage.

Educate staff about practicepolicies and enforcecompliance. This includespolicies for business records,third-party payer claims andrecords, practice employmentrecords, and patient healthinformation. Hold staff in-serviceeducation programs on practicepolicies and procedures andprovide updates. Make doctorsand staff aware that any timethey access a patient’s e-record,their actions will be tracked anddocumented—all of which isdiscoverable.

Stay alert for changes andamendments to the e-discovery rules. Someaspects of e-discovery arecurrently vague, and becausetechnology is evolving rapidly,the rules will likely change. Forexample, existing record retentionlaws and regulations do notspecifically address retention ofe-information in emails, textmessages or smartphones.

With today’s changingtechnology, it is essential that yourpractice become e-discovery ready.Developing policies and procedureshelps your practice protect patientinformation and comply with therules. 7


Occurrence or Claims-Made?NCMIC Offers You the ChoiceQ: Which type of coverage is better:

occurrence or claims-made?A: Both occurrence and claims-

made policies have theiradvantages and disadvantages. If you’re deciding between anoccurrence and a claims-made

policy, evaluate your individualcircumstances—now and in thefuture—and consider the following:

Occurrence Protects you against claims for

alleged incidents that occur while the

policy is in effect. Even if the policylater expires or is canceled, thecoverage will be there to protect youfor the period the policy was in force.This is important because manytimes a patient can file a lawsuitmonths or even years after anincident took place.

Coverage will be provided at thelimits of liability, terms and conditionsin effect at the time of the allegedinjury.

Claims-madeProtects you against claims made

and reported by you during the policyperiod. Coverage is provided at thelimits of liability, terms and conditionsin effect at the time the claim isreported. If you cancel a claims-madepolicy, it’s recommended that youobtain “tail coverage” to providecoverage for claims for allegedincidents that took place but weren’treported while the policy was in effect.

As is standard in the industry, tailcoverage may not be available if theclaims-made policy cancels for non-payment of premium, giving rise to a gap in coverage.

Why does NCMIC offer you both occurrence and claims-madecoverage when some insurers offeronly one option? NCMIC believes inoffering you the choice to customizeyour coverage to suit your ownspecial needs and situation.

Occurrence Claims-Made

Cost

• Costs are higher than claims-madepolicies during initial years, but do notincrease over time.

• There is no need to purchase tailcoverage if you cancel your policy.

• Costs start out lower and rise over the firstfive years.

• You may need to purchase tail coveragewhen you cancel your policy— the price ofwhich won’t be known until it’s purchased.

• NCMIC offers tail coverage at no additionalcharge if the policyholder has had theclaims-made policy in effect for thepreceding five years and retires on or afterage 55. Tail coverage is also offered at noadditional charge in the event of death orpermanent disability.

Convenience• Do not need to acquire tail coverage ifyou stop practicing or retire.

• May need to acquire tail coverage if you stoppracticing, retire or cancel the policy.

Flexibility

• For D.C.s with gaps early in theircareers (such as for family leave, travelor short-term disability), occurrencecoverage can provide the flexibility oftaking time off without adding theexpense of tail coverage.

• You can request an increase to yourcurrent policy limits at any time.Coverage limits are those in effect at the time of injury.

• You can request an increase to your policylimits at any time, except at termination.Coverage limits are those in effect when the claim is made.

Security

• Provides coverage for allegedincidents taking place when the policywas in effect—even if the claims aren’t reported until later.

• For a claim to be covered under a claims-made policy, the incident leading to the claimmust occur on or after the retroactive date(the first date coverage is provided) andbefore the policy terminates. The incidentmust also be reported after the retroactivedate of the policy and generally within 60days following the policy’s cancelation.(Some states vary.) Tail coverage extends the time reporting period.

Coverage

• There is no difference in the kind of injury or damage covered; the difference is how andwhen coverage is triggered. What’s best for you will depend on your individual situation.

• Coverage is triggered by when theinjury occured.

• Covered is triggered by when the claim was made and reported.

YourQuestionsANSWERS TO YOUR QUESTIONS FROM OUR EXPERTS.


5 Ways to Avoid Copy and Paste Errors As more D.C.s turn to electronichealth records (EHRs), theyneed to be careful to avoid the“copy and paste” errors thathave been prevalent in themedical profession.

Copy and paste is the practice ofhealthcare providers simply copyingpatient information, progress notes,test results and inserting them againelsewhere in a patient’s EHR ratherthan re-entering the data. This hasalready become common within themedical community.

A recent study reviewed over2,000 progress notes on 135 patientsand found that 82 percent of allresidents’ notes and 74 percent of all attendings’ notes contained atleast 20 percent copied information.1

An earlier study reported that sign-out and progress notes proved to be particularly redundant, with anaverage of 78 percent of residentsand 54 percent of attendingsduplicating information from previousdocuments.2 Because this practice isso frequent, significant patient safetyerrors—such as using out-of-dateinformation and applying the wrongtreatment to the wrong patient—canresult.

Consequently, any healthcareprovider using cut and paste shouldreview the data to ensure it’s stillvalid, correct and applicable to theright patient and patient encounter.Cases have been seen where copy

and paste was done so frequently itperpetuated the dissemination of aninaccurate diagnosis among severalproviders. The practice also hasserious insurance fraud and abuseramifications if the EHR system isusing inappropriate, incorrect copied-and-pasted information as the basisfor billing and coding.

Because this practice is fraughtwith potential patient safety and

liability risks, Doctors of Chiropracticshould use extreme care with toolsavailable in EHRs that allow the D.C.to “copy and paste” or “copyforward” patient information.

As more is learned from theexperiences of others in thehealthcare community, Doctors ofChiropractic would be advised tofollow the suggestions below:3

1 Thornton JD, Schold JD, Venkateshaiah L, & Lander, B. (2013). Prevalence of Copied Information by Attendings and Residents in Critical Care Progress Notes. Critical Care Medicine, 41(2): 382–388, February.2 Wrenn JO, Stein DM, Bakken S, & Stetson PD. (2010). Quantifying clinical narrative redundancy in an electronic health record. J Am Med Inform Assoc 17:49-53, January-February. 3 “Electronic Health Record Documentation Guidelines V 1.2, 2012-2013,” Dept. of Medicine, Weill Cornell Medical College, New York-Presbyterian Hospital. In O’Reilly K. (2013). EHRs: “Sloppy and paste” endures despite patient safety risk. AMNews.com, February 4. Accessed March 1, 2013,www.amednews.com/article/20130204/profession/130209993/2/

COPY and PASTE

Avoid copying and pasting of text from another provider’snote without attribution, as that may constitute billingfraud.

Avoid repeatedly copying and pasting of test resultsand reports.

Note important results with proper context and documentany resulting actions. Avoid wholesale inclusion ofinformation readily available elsewhere because thatcreates clutter and may adversely affect note readability.

Review and update as appropriate any shared informationfound elsewhere in the electronic record (e.g., problems,allergies and medications) that is included in a note.

Include previous history critical to longitudinal care in theoutpatient setting, as long as it is always reviewed andupdated. Copying and pasting other elements of thehistory, physical examination or formulations is risky, aserrors in editing may jeopardize the credibility of theentire note.


You’ve likely dealt with patientswho don’t follow your adviceand instructions to achieve agood clinical outcome. Patientnoncompliance can take manyforms including failure to followyour referral to see anotherdoctor, stop smoking or loseweight.

Noncompliance can be especiallytroubling when it continues over time,despite your repeated efforts. Theconsequences of noncompliance caninclude treatment delays, increasedrisk of harm for the patient, andpotentially more extensive, costly,invasive or aggressive therapy. Inaddition, the noncompliant patientcan be a serious liability risk todoctors if noncompliance causesharm to a patient and results in a malpractice suit being broughtagainst the doctor. Consider thefollowing example of patientnoncompliance:

Patient Avoids HealthyLifestyle

Joe Anderson was a 40-year-oldgrossly obese patient, with a familyhistory of early cardiac death amongthe males in his family. His father andtwo uncles all died from acute MIsbefore they were 50.

Joe also had hypertension,hypercholesterolemia and was pre-diabetic. His D.C., Dr. Joshua Chang,was trying his best to help the patient reverse his family history,recommending a wellness programthat included diet and exercise.

Despite these efforts andrepeated discussions, counseling

and warnings about his failure tocomply, Joe did nothing to changehis sedentary lifestyle or unhealthydiet. He bluntly told Dr. Chang thathe considered an early death to beinevitable. He couldn’t fight his genesand felt the changes Dr. Changadvised were “impossible” and notworth the “suffering.”

Dr. Chang referred Joe forpsychological evaluation and therapy.After several sessions, thepsychologist determined Joe wasclinically depressed, and he advisedseveral sessions of therapy.

When Joe returned to chiropracticcare two months later, Dr. Changnoticed a marked change in hisdemeanor, outlook on life andcompliance. Joe had begun and wassticking with an exercise and dietregimen that had a positive effect onblood sugar, cholesterol and weight.

Understand Why PatientsAre Noncompliant

As the scenario shows, patientnoncompliance can have manyunderlying causes. These may includethe patient’s:• Lack of trust or confidence in

the doctor or the treatment plan• Lack of self-confidence to follow

the doctor’s advice (e.g., loseweight, quit smoking, etc.)

• Religious beliefs• Cultural beliefs and practices• Economic hardship• Lack of understanding about the

doctor’s expectations due to: - Language differences- Education and intellectual

barriers

- Poor doctor-patient communication

- Mental or physical disabilities (e.g., hearing loss, forgetfulness, memory loss, etc.)

A doctor must determine thereason for a patient’s noncompliance,if at all possible. A face-to-facediscussion can be extremelyproductive if you explain:• Why you prescribed the course

of treatment, medication orphysical therapy.

• What you hope to accomplishthrough this course of treatmentor therapy.

• How the prescribed therapycould benefit the patient.

• What possible complicationsand risks are associated with thetreatment.

• Which patient roles andresponsibilities will help youachieve a good outcome.

Then, ask the patient if therecommendations are achievable. If patient says “no,” ask why not.Once you determine the underlyingcause, solutions may be possible.

Dealing with patientnoncompliance can be frustrating for doctors.

How to Handle the Noncompliant Patient


Lack of understanding aboutyour recommendations can lead topatient noncompliance. Take steps to ensure all communications andmaterials are easy to understand,avoiding complex technicalexplanations and clinical terminology.If language is a barrier, offer to makeinterpreters and translation servicesavailable. If there are financialbarriers, check to see if resourcesmay be available.

Patient Has Right toRefuse Care

Keep in mind that a patient has a right to refuse clinical care for anyreason. What you deem to be patientnoncompliance may actually be apatient coming to an informeddecision to refuse care or chooseanother type of care after weighingthe treatment options.

In these situations, it is your roleto ensure the decision/refusal actuallywas informed, just as you would withobtaining the patient’s informedconsent. Your discussion with thepatient should include your rationale

behind your proposed treatment or diagnostic study, its potentialbenefits, complications, risks,consequences of refusal, andpossible alternative therapies orprocedures.

Sometimes, a little dialogue is allthat’s needed to get to the root of theproblem and turn a noncompliantpatient into a willing, compliantparticipant. The discussion with thepatient, the events leading up to it,the steps taken to resolve theproblem and the patient’s responseto this information should bedocumented in the patient’s record.

If the patient still refuses theclinical care you recommended, the patient’s decision should bedocumented in the records. Somepractices will ask the patient to sign a Refusal of Treatment or AgainstClinical Advice form, and then willplace the form in the patient’s clinicalrecord.

Dismissing a Patient If after talking to the patient

repeatedly, you believe there is little

hope of obtaining compliance, youmay have to make the difficultdecision of dismissing the patientfrom your practice.

Obviously, dismissing a patientwho still needs clinical attention is notto be done hastily or without goodcause. What’s more, it should only be done if there are no other viablealternatives.

Be aware that the dismissal itselfcould become grounds for anadditional allegation of abandonmentif not handled carefully.

Overcoming theChallenges

Not only is noncompliancepotentially harmful or even life-threatening to the patient, it can beextremely frustrating for doctors, and potentially result in malpracticeallegations. Good doctor-patientcommunications can minimizenoncompliance, or at least determineits cause, and thoroughdocumentation can be an invaluabledefense if litigation does occur. 7

Manage Your Malpractice Policy 24/7We know how busy you are. That’s why we make it easyfor you. As a policyholder, you can access the secured portion of www.ncmic.com when it’s convenient for you. You can:

• Make a payment• Access policy change forms• Review your billing history• View your policy summary• Print your declarations page• Access Examiner case studies/articles

To sign up for online access, go to www.ncmic.com,click on “sign up now” and provide the requested information.

You’ll also be able to talk with an expert representative between the hours of 7 a.m. and 6 p.m., CT, Mondaythrough Thursday, and 7 a.m. and 4:30 p.m., CT, on Friday. Call us toll-free at 1-800-247-8043.

Online or over the phone, we’re

here to help!

©2013 NCMIC

NCMIC Insurance Companya subsidiary of National Chiropractic

Mutual Holding Company Rod WarrenPresident

Roger L. SchluterTreasurer / Assistant Corporate

Secretary Jacquie Anderson

Vice President, ComplianceCorporate Secretary

Bruce BealVice President, ClaimsMatt Gustafson

Chief Financial Officer

Assistant Vice Presidents:Barb Clark, Operations

Traci Galligan, Human ResourcesKeith Henaman, Claims

Paul Luckman, UnderwritingMike Whitmer, Corporate Relations

David Siebert, Professional Liability Program

Joseph S. Soda, Insurance ServicesCaren Whitney, Customer Service

ExaminerS U M M E R 2 0 1 3


WHAT’S NEW AT NCMIC AND IN CHIROPRACTIC

News andNotes

Examiner is published quarterly forpolicyholders of NCMIC’s Insurance plan. Articles may not be reprinted, inpart or in whole, without the prior,express written consent of NCMIC.Information provided in the Examiner isoffered solely for general informationand educational purposes. It is notoffered as, nor does it represent, legaladvice. Neither does Examiner constitutea guideline, practice parameter orstandard of care. You should not act or rely upon this information withoutseeking the advice of an attorney. If there is a discrepancy betweenExaminer and the policy, the policy will prevail.

“We Take Care of Our Own” is aregistered service mark of NCMIC Group, Inc. and

NCMIC Risk Retention Group, Inc.

Send inquiries, address changes,and correspondence to:

NCMIC Examiner P.O. Box 9118,Des Moines, IA 50306-9118 1-800-769-2000, [email protected] Houchin, Editor

National Chiropractic MutualHolding Company DirectorsLouis Sportelli, D.C., President

John J. DeMatte IV, D.C.Claire Johnson, D.C., MSEdMatthew H. Kowalski, D.C.Vincent P. Lucido, D.C.

Mary Selly-Navarro, R.D., D.C.Marino R. Passero, D.C.Wayne C. Wolfson, D.C.

Also, serving on the NCMIC RiskRetention Group, Inc. board are: LouisSportelli, D.C., Wayne C. Wolfson, D.C.,Vincent P. Lucido, D.C., Russel A. Young,Vermont Director; Patrick E. McNerney,Director; Roger L. Schlueter, Director and Jacqueline Anderson, Director.

John DeMatte IV, D.C., was elected to the board of directors of NationalChiropractic Mutual Holding Companyduring the annual meeting on April 15,2013, in Clive, Iowa. Claire Johnson, D.C.,MSEd., and Mary Selly-Navarro, R.D., D.C.,were re-elected to the board on this date.

Dr. DeMatte is a member of both thePennsylvania Chiropractic Association andthe American Chiropractic Association andhas been active in a number of organizationsboth as a student and as an instructor. Healso works as a consultant for GnadenHuetten Memorial Hospital in Lehighton,Pennsylvania. A Summa Cum Laudegraduate from National University of HealthSciences (NHSU), Dr. DeMatte received theJoseph Janse Outstanding Graduate Awardfor outstanding contribution to the college.

Dr. Claire Johnson’s career hasemphasized elevating both the quality andthe amount of chiropractic educational

research. In obtaining her master’s of healthprofessions education from University ofSouthern California, Rossier School ofEducation, Dr. Johnson focused on thecreation of evidence-based practice skillsthroughout a chiropractic curriculum. Dr. Johnson is also editor in chief for theJournal of Manipulative and PhysiologicalTherapeutics, Journal of ChiropracticMedicine, and Journal of ChiropracticHumanities.

Dr. Selly-Navarro is a long-standingand active member of several chiropracticorganizations, including the MinnesotaChiropractic Association (MCA), whichelected her president from 2001 to 2002.Prior to serving as president, she waschairwoman of the association’s ethicscommittee. She was named DistinguishedAlumnus of the Year at NorthwesternHealth Sciences University in 2003, as wellas MCA Chiropractor of the Year in 2010.

NCMIC Board of Elections Results Announced

The Institute for Alternative Futures’ (IAF)new report Chiropractic 2025: DivergentFutures gives readers a preview ofexpectable futures for chiropractic in the U.S.

Working with more than 60 chiropracticpractitioners, educators, researchers andother experts, the IAF developed fourscenarios. Clinicians, education institutions,accrediting agencies, licensing boards,professional associations, researchers and others can use these scenarios to test their strategies and become morefuture oriented.

As U.S. healthcare reorganizes, now is a critical time for the chiropracticprofession to examine future opportunitiesand challenges within the healthcarecommunity, as well as the shifting economy,political landscape, and social and culturalenvironment.

This is the third futures reports fundedinitially by NCMIC Group, Inc., and later by the NCMIC Foundation, Inc. The fullreport, as well as scenario–planningexercises, is available onwww.altfutures.org/chiropracticfutures.

IAF Releases Third “Alternative Futures” Report

NCMIC Insurance Services is a licensed insurance agency. Insurance coverage is underwritten through some of the nation’s leading insurance carriers. CA license #0B84564.© 2013 NIS NFL 8275

Contact us today for your business insurance and personal insurance needs.1-800-990-7002, ext. 8275www.ncmic.com/[email protected]

Because of our nationwide scope, we have access to many top-rated insurance companiesthat other independent agencies may not have access to. That enables us to offer D.C.slike you choices on coverage, as well as competitively priced solutions.

Make sure you have the insurance coverage you need—both personally and professionally. Contact one of ourindependent insurance agents today for a no-obligation quote.

BUSINESS INSURANCEProtect your practice in the event of a loss. Our agentswork with some of the nation’s leading insurancecarriers. We’ll compare rates and coverage to provideyou with options to meet your needs. Ask us for ano-obligation insurance quote for:

• Business owners’ policy• Workers’ compensation insurance• Employment practices liability insurance• Product liability insurance• And more

PERSONAL INSURANCEThrough our network of insurance carriers, we haveaccess to a wide variety of insurance programs tomeet your needs. Find out how we can help you with insurance protection for:

• Auto, motorcycle, RV, boat, etc.• ATV, collector car, snowmobile, etc.• Homeowners, renters, condo, townhome• Personal umbrella

Protecting Your Practice and Personal Belongings

Insurance Solutions Designed for D.C.s



Q:

SEE HOW NCMIC’S CLAIMS ADVICE HOTLINE HAS HELPED D.C.S JUST LIKE YOU.

You Rang?The Benefit D.C.sRely on to AvoidClaimsWorried about a touchy

situation? Just need advice?

Call NCMIC’s confidential

Claims Advice Hotline at

1-800-242-4052 to talk

with a professional claims

representative about any

concern or situation you’re

not sure how to handle.

A:If you decide to provide

chiropractic treatment after adisaster, keep in mind that toqualify for Good Samaritanprotection, treatment must berendered only in true emergencysituations and offered voluntarilywithout accepting payment.

Most states have GoodSamaritan statutes that shieldpeople from litigation when theyassist during an emergency andthe patient is injured as a result ofthe care. However, these lawstypically only shelter those whoprovide emergency care toseriously injured victims whoselives are in imminent dangerand where treatment was notfound to have been grosslynegligent.

Therefore, for example, if youoffer chiropractic care to workers or non-emergency victims in thedays after an incident, you willmost likely NOT be protected fromliability under the Good Samaritanlaws. Plus, you will be held to the“reasonable and customary”standard. In other words, did you make an attempt to rule out seriousproblems, use reasonable care andcompetency, and practice within

your state’s scope of practice?Your goal after a disaster should

be to render palliative care—relievingstrains, stress and minor injuries—instead of rendering care forserious injuries. Be conscious ofwhat is safe in the field, practicewithin the mainstream of chiropracticcare and use appropriate equipment.

At the same time, treatingsomeone in the field will be quitedifferent than treating in a controlledoffice environment. For example,problems can result from usingsports ice on workers in a chillyenvironment or providing stimulatingsupplements to workers who arealready stressed.

Your disaster proceduresshould mirror as closely as possiblehow you would approach yourevaluation and treatment if thepatient presented in your office. In other words, examinations,assessments, treatments andfollow-up care must be chartedand maintained on each personyou treat.

Some doctors rendering carein a disaster situation ask anyonereceiving an adjustment to sign a“waiver” to release the doctor fromculpability. However, if anything

goes wrong, a waiver probablywould not protect you in a court of law. A plaintiff attorney mayattempt to paint your goodintentions as “ambulance chasing.”Treating for free does not eliminatethis concern because it could beperceived as an attempt to attractnew patients.

Protect yourself to the extentpossible by maintaining yourprofessionalism and avoiding anyappearance of using a disaster forfuture personal gain. 7

With the outbreak of disasters across the nation, I am consideringproviding chiropractic care to the workers and the victims. Will I beprotected from liability by the Good Samaritan law?

Are D.C.s Protected by Good Samaritan Laws?

DID YOU KNOW?With NCMIC, a claim is notautomatically opened when youcall us. While other companiesmay set up a claim file if you callwith an incident or situation thatcauses concern, our approach isdifferent. Your information islogged, but not put into yourclaims record. This approach helpsyou keep your claims-free status,but still allows you to receiveguidance when you need it.

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