CAMLAW: Complementary and Alternative Medicine Law Blog

Patient Lawsuit Claims Chiropractor Broke Woman's Ribs

A chiropractic broke a patient's ribs during an examination, according to a recently filed Illinois lawsuit for chiropractic malpractice.

Reported in the Madison St. Clair Record (Chiropractor broke woman's ribs, suit claims, Tuesday, September 26, 2006), the complaint apparently alleges that the patient sought treatment for low- and mid- back pain; the chiropractor performed spinal manipulation without her consent. Further: "As plaintiff's chiropractor, defendant had the duty to refrain from unauthorized treatment of plaintiff and to have plaintiff's full consent prior to any treatment..."Physical touching per the techniques and manipulation employed by defendant was harmful, offensive and unauthorized because plaintiff did not consent or submit to said touching."

The patient seeks damages for incurred medical, hospital and related care, and has suffered pain and mental anguish.

Usually defined by case law and not statute, chiropractic malpractice is similar to medical malpractice -- a variation on negligence by a healing arts professional. Medical malpractice is defined in terms of violating the standard of care, and thereby injuring a patient. As discussed in Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, chiropractic malpractice consists of deviating from the chiropractic (as opposed to medical) standard of care, and thereby injuring the patient. This means that the court will turn to a chiropractic expert (as part of the plaintiff's case) for an expert opinion on whether chiropractic negligence (malpractice) occurred. But where there is overlap between chiropractic and medicine (for example, reading an X-ray), courts could well apply a medical standard of care instead.

But for an MD including complementary, alternative, wellness, or medical spa treatments, the court will likely look to a conventional medical expert for testimony as to whether at least the conventional bases were covered.

That is why, in Cohen MH, Eisenberg DM. Potential physician malpractice liability associated with complementary/integrative medical therapies. Ann Intern Med; 2002;136:596-603, we try to help guide and shape integrative medicine practice by suggesting that when including CAM therapies, physicians should ensure that the disease is conventionally diagnosed and monitored, and urge patients to use conventional care where medically necessary. Of course, patient choices should be respected; but where medical necessity dictates, conventional care should not be ignored.

And chiropractors, no less than physicians, should abide by sound principles of informed consent by disclosing and discussing risks and benefits of all material (significant) therapeutic options prior to implementing any therapy -- including manipulation.

The lawsuit reported in Illinois is a reminder that CAM professionals, like MDs, also need continuing education regarding informed consent standards and the factors than can shape a malpractice (neligence) case.

For those who mistakenly believe that either advocacy of (or hostility to) alternative medicine are the only perspective, this claim suggests the need for a balanced viewpoint.

Recently, our law firm (Law Offices of Michael H. Cohen) provided expert legal counsel to a law firm in one of the Western states concerning a medical malpractice case. That case involved negligence by an outfit claiming to be a medical spa. Without revealing confidential details, suffice it to say that the supposed day spa did not follow even the basic protocols and procedures for ensuring the safety of its guests, and as a result, an unfortunate incident claimed a patient's life.

The 'spa' and its physician-owner attempted to claim exoneration by arguing that a different standard of care applied to holistic health care and to complementary and integrative medicine than would be applied if the physician were practicing conventional medicine.

This argument has been rejected in various forms by different courts, although it has not been tested in every state.

The particular case in question was settled by mediation.

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COMPLEMENTARY & ALTERNATIVE MEDICINE LAW BLOG

Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173