heidi bevis clive, iowa [email protected] natalie … intense pulsed light (ipl) is a technology used...

Heidi BevisNCMIC Insurance Company

Clive, [email protected]

Natalie BlindThe Doctors Company

Columbus, [email protected]

Thomas D. JensenLind Jensen Sullivan & Peterson, P.A.

Minneapolis, [email protected]

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September 28, 2017, The Westin River North, Chicago, Illinois

mailto:[email protected]




Chiropractic: form of alternative medicine which focuses on disorders of the spine

Chiropractic profession is over 100 years old and founded by Daniel David Palmer

Misalignments of the spine are corrected by manipulation. Goal: increase blood flow to soft tissues and restore full nerve function

Orthopedic, neurologic and radiologic tests are used to identify pathology

Chiropractors may not prescribe medicine or perform surgery in most states


Chiropractic “adjustment” is performed by hand or instrument to realign subluxations(misalignments) or loosen fixations

Drop tables may be used as a technique

When the vertebrae are adjusted, an audible “pop” can often be heard (cavitation)

“Adjunctive” therapies employed (heat/cold, electrical stim, traction)


Discs are pads located between the bony spinal vertebrae to allow movement

Disc fragments may extrude from their place and pinch nerves exiting spine

Patient claims the chiropractic adjustment herniated the disc and caused surgery

Patients may claim lack of informed consent

Patients claim wage loss, disability, increased risk of future surgery

Claims are sometimes generated by a comment made by the patient’s medical doctors

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Two types of stroke: ischemic (blood clots) and hemorrhagic (bleeding)

Claims are often associated with a VAD (vertebral artery dissection)

Patient may present with a pre-existent stroke or symptoms of a stroke in progress

Common to see patients claim lack of informed consent

Patient: the adjustment impacted the artery causing stroke

Patient: this adjustment was different

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Bone fractures/ribs

Spinal cord injury

Nerve injury

Dislocations

IPL- Intense Pulse Light burns

Cauda equina syndrome

Failure to refer

Equipment-related harm

Failure to diagnose medical condition

Boundary violations

Aggravation of prior condition

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Intense pulsed light (IPL) is a technology used by cosmetic and medicalpractitioners to perform various skin treatments for aesthetic and therapeuticpurposes, including hair removal, photorejuvenation (e.g. the treatment of skinpigmentation, sun damage, and thread veins) as well as to alleviate dermatologicdiseases such as acne. (https://en.wikipedia.org/wiki/Intense_pulsed_light)


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Adjusting spines with herniated discs is compliant.

◦ Goal: coax herniated material away from the nerve

Adjusting neck vertebrae near arteries is compliant.

Traction, electrical stimulation are compliant.

D.C training on amount of force to use is thorough.

◦ Especially with returning patients (technique familiarity)

Bone weakness could not be anticipated.

Expert retention

◦ Chiropractic, orthopedic, neurosurgeon, neuroradiologist

Patient contributory negligence

Integrity of the chart

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Stroke was in progress

◦ Reason patient presented

Spontaneous stroke on table

◦ Temporal coincidence, not cause-and-effect

Stroke data

◦ 1 in 2,400,000 adjustments

◦ .00025% chance

CAD is multifactorial

Herniation preexisted

◦ Reason patient presented

◦ Surgery was inevitable

Adjustments can’t herniatediscs

◦ Facet joints prevent sufficient rotation

◦ Compression not involved

◦ Surface: tough fibrous ring

Shooting pain on table

◦ Extruded disc hit nerve

◦ Surgery was inevitable

Fracture (ribs ) win on SOC


Chiropractic education is rigorous.

◦ Put the curricula into evidence.

Like medicine, regulators scrutinize the profession

◦ Insurers/Medicare approve it.

If it is harmful, why does every mall have a D.C. clinic?

◦ Millions of adjustments occur daily.

Patient history may include trauma, work injuries or family history.

Chiropractic is a gentle, non-invasive form of care.

Chiropractic care is not a “cure-all” for all illness; chiropractic and medical care are complementary.

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Avoidance of “Learned Treatise” trap

◦ Generally

◦ Journal of Manipulative and Physiological Therapeutics articles

Reptile Strategy preparation

Informed consent risk disclosure calculus

◦ Intake form clarity; timing of risk disclosure

◦ Stroke risk minute: lifetime pain/drugs = outcome of care rejection

◦ Nearly impossible for an adjustment to herniate a disc

◦ Compare death rates from Rx use, back surgery or everyday activity

◦ State standards vary

Reasons why prior medical records unnecessary

Patient is never a liar, just mistaken

Guidelines generally frown on rushed MRI

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Timely updates on case evaluation and discovery deadlines

Discussion on potential experts, their qualifications and rates

Expectation that lead counsel will conduct all pertinent discovery depositions and court appearance

Face to face contact with the insured and lead counsel as quickly as time permits once the case is assigned

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Juries seem to give D.C.s similar benefit of doubt as M.D.s.

Lawsuit attacks the doctor’s core values

One-on-one advocacy

◦ Hospital, nurses can’t help

NCMIC wins 90% of all cases tried.

MedPro wins 90% of all cases tried.◦ https://www.medpro.com/chiropreferred

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Public or private non-hospital facility◦ May be physician-owned

Outpatient surgeries using general or regional anesthesia

Goals◦ To reduce health care costs with enhanced

patient convenience

◦ To return patient home in 24 hours

◦ To reduce infection risk

◦ To release hospital beds for other uses

Growing number of complicated surgical patients utilizing ASC services

Plastic/Cosmetic

Orthopedic

Otolaryngology

Ophthalmology

Urology

Gynecology

Podiatry

Vascular

General surgery

Gastrointestinal

Interventional radiology

Cardiology

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Joan Rivers’s Death Spurs New Look at Outpatient Centers, Wash. Post, Dec. 15, 2014

Suit Raises Concern About Outpatient Clinics, The News-Times, Apr. 20, 2015

Woman Receives $14.9 Million in Lawsuit Against Surgery Center, Fox 31 Denver, Apr. 6, 2017

Lawsuit Against Pismo Beach Outpatient Surgery Center, Telegraph News, Dec. 21, 2013

Spotlight on risks involved

Lessons learned

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Must be certified and approved to enter into agreement with Centers for Medicare and Medicaid Services (CMS)

Must be independent of hospital or physician office

Regulation Resources: Social Security Act 42 U.S.C. § 1395k; 75 Fed. Reg. 51464; 42 C.F.R. § 416

Professional Associations: American Association for Accreditation of Ambulatory Surgical Facilities (AAAASF) and Accreditation Association for Ambulatory Health Care (AAAHC)

CDC surveys

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2016 study: inpatient surgical patients have 2x high severity outcomes compared to ASCs

2009 study: 4,910 inpatient events leading to claims; 4,438 outpatient events leading to claims

2009 study: mean payment amounts inpatient: $362,965; outpatient: $290,111

2015 study: > 50% of claims arise from outpatient settings

Most common reason for paid claim inpatient: surgical; outpatient: diagnostic

Importance of patient selection

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Generally the outpatient risk environment is similar to the inpatient risk◦ Infection/pneumonia

◦ Insufficient pre-operative assessment

◦ Surgical/anesthetic management error

◦ Failure to diagnose complications

◦ Negligent credentialing

◦ Too-early patient discharge

◦ Insufficient complication response equipment

◦ Foreign body retention

◦ Mistaken surgical site

◦ Equipment sterilization failure

◦ Missed or delayed diagnoses

◦ Errant record keeping

◦ Adverse drug events

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Risks specific to ASC environment include:◦ Discharge of unescorted patients

◦ Too-early infant care

◦ Absence of crash cart

◦ Sleep apnea management

◦ Obese patient care

◦ Post-operative discharge criteria

◦ Choice of anesthetic technique

◦ Independent contractor vicarious liability issues

◦ Meddling by ASC’s management company

◦ Lack of transfer protocols

◦ Insufficient attention to cardiac clearance

◦ Bleeding requiring transfusion

◦ Pediatric patient respiratory issues

◦ Absence of caretaker at home

Discharge to facility lacking skilled nursing care

Unplanned intubation

Wound disruption

Highest risk (procedures)◦ Laparoscopic

◦ Cholecystectomy

◦ Hernia repair

Highest risk (injuries)◦ Nerve injury

◦ Eye injury

◦ Airway injury

◦ Brain damage

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Highest risk (injuries), cont’d◦ Pneumothorax

◦ Burns

◦ Surgical site infections

Events requiring hospital◦ Poorly controlled nausea

◦ Poorly controlled pain

◦ Procedure-related bleeding

◦ Cardiopulmonary events

Gamut of anesthesia risks

Cosmetic procedures leading to outcome unhappiness

Anti-coagulation care

Sensational celebrity claim publicity highlights lesser care quality

Manipulate juror “presumption” ASCs are riskier◦ How could they equal hospital resources?

◦ Find equipment or specialist not present at the ASC that would have “saved the day”

ASC choice due to surgeon’s investor status◦ For-profit focus sacrifices care

◦ Investigate management company policies

Reptile strategy: safety and danger

Focus on the anesthetist

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Role of patient co-morbidities

Equality of regulatory oversight◦ Government investigated and approved

◦ Professional associations approved

Hospital-inherent risks are avoided

Patient convenience/cost benefits

Outcome inevitable regardless of site selection

Standard of care compliance

Causation


Importance of communication/reporting

Counsel collaboration with the claims professional◦ Strategy consensus

◦ Allocation of responsibilities

◦ Expert recruitment

◦ Panel counsel information sharing (ASC claim experience)

Early evaluation/mediation (?)

Avoidance of surprises

Importance of the team effort: defense counsel,

claims professional, and the client-insured

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Notice: photos appearing in this presentation were purchased from iStockphoto L.P. The views expressed in the written materials, this slide presentation, or orally during the presentation do not necessarily represent the views of the speakers,their clients, insureds or employers.

heidi bevis clive, iowa [email protected] natalie … intense pulsed light (ipl) is a technology used...

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