Academy of Chiropractic Personal Injury & Primary Spine Care Program

Quickie Consult 306

From the Desk of Dr. Mark Studin
Academy of Chiropractic
Preamble: Many of the issues I bring to you are very small, yet each issue is just that, an issue. If you take care of the small issues, then you will be able to build and more importantly, focus on the bigger issues...a larger practice and more family time.

"What Happens When Surgery is Recommended and the Patient Denies Surgery and Opts for Your Care...What is Your Liability?"

Yesterday, I spoke with a doctor in New York who referred a patient for a surgical opinion. The patient had severe radiculopathic signs and clinical findings with concurrent MRI findings of a significant herniated disc. The surgeon recommended immediate surgery, yet the patient opted to forgo the surgery in favor of chiropractic care. 
My immediate response to the doctor was, "If you treat the patient, think of how a licensure board would  view this if the patient gets worse and sues you and reports you to the licensure board for scope issues. On the witness stand, in your defense, you will argue that the patient chose your care over the surgical route even though you referred him and he was well aware of the surgical recommendation. You will even show evidence of an informed consent telling the patient that he might get worse with your care without the surgery. The state licensure board prosecutor and malpractice lawyer for the patient could argue that in spite of knowing that the patient needed surgery for a spinal related condition, you knowingly and willingly adjusted the spine delivering high velocity thrusts, further hurting the patient in spite of your intent. In doing so, you delayed necessary surgery and were the reason the patient got worse. What makes this more complicated and incriminating is that you knew the likelihood of your patient not getting better, yet you proceeded. How will that sound to a jury or licensure board?"
Now, with that said, here is my confession. 10 years ago..not that long ago when I KNEW BETTER... I treated a patient who was a lawyer for a myelopathic condition at T7. He was in a severe car accident and the seatbelt caused a thoracic problem as a sequella to trauma. I ordered an immediate MRI and sent him for a surgical consultation, but he refused surgery. I continued caring for him for 3 years as my adjustments were the only thing giving him temporary relief. I never rendered an informed consent because 10 years ago, you didn't have to and I just nagged him to get surgery, which to this day he still hasn't and is still in pain. 
In those intervening 10 years, he has fallen down the steps multiple times after spontaneously losing power in his legs secondary to the myelopathy. He has broken his humerous, clavicle and fibula as a result. He has hit his head on the floor rendering him multiple concussions and has become addicted to vicodin and other various narcotics through the years. 
In retrospect, I did this patient a disservice by continuing care on him after surgery was recommended. I also had a great relationship with him and I was never sued or reported...but if I didn't have that relationship with him and he wanted to sue me or report me to the licensure board, I now wonder what would have happened.
This brings up another issue. How many patients have I cared for in which surgery was avoided? Am I now capable with my ability to interpret my own MRIs to discern those that truly need surgery vs. those that can wait and see if I can help them get well and avoid surgery? Right now there are more questions than answers and together we are going to find the answers.
Please call your state licensure board and ask them the following question, "If spinal surgery is recommended for my patient and the patient chooses to seek my care instead, am I within my scope to treat that patient for the documented surgical condition?" Also, "If that same patient gets hurt, is that considered gross misconduct or any other type of licensure infraction?"
Please let me know the answers in detail...THANKS

Follow Up Answers...

PLEASE TAKE FURTHER NOTICE: CONFIDENTIALITY AND PROPRIETARY INFORMATION NOTICE:  This email including attachments is covered by the Electronic Communications Privacy Act (18 U.S.C. 2510-2521) and contains confidential information belonging to the sender.  Nothing contained in this message or in any attachment shall constitute an Electronic Signature or be given legal effect under 44 U.S.C. 3504 Sec. 1707.  The information is intended only for the use of the individual or entity to which it is addressed.  If the recipient of this message is not the intended recipient, you are at this moment notified that any unauthorized disclosure, dissemination, distribution or reproduction of this message or any attachments of this communications is strictly prohibited and may be unlawful.  If this communication has been received in error, please notify the sender immediately by return email, and delete or destroy this and all copies of this message and all attachments.