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Client Testimonial

I feel that your testimony was very effective as we successfully defended this lawsuit. Your outstanding background of training and experience along with your professional physical appearance had the Jury attentive as you went about explaining the review process and your findings. The Jury not only found you credible but they were able to relate to your explanation regarding the procedures that were done and what should have been done in regards to chiropractic care.

Kentucky Farm Bureau Insurance Companies
Ed Ditto, CPCU, AIC, AIM
District Claim Manager

5500 Errol Place • Atlanta, Georgia 30327 • 678.777.1161

Chiropractic Malpractice and the Role of the Expert Witness

Dr. Alan H. Bragman, D.C.

Hyperlinks:
I. ROLE OF CHIROPRACTIC IN HEALTH CARE
II. RECOGNITION AND REGULATION
III. EDUCATION
IV. INITIAL EXAMINATION
V. TREATMENT
VI. STANDARDS OF CARE
VII. MALPRACTICE
VIII. CASE SCREENING
IX. LOCATING AND SELECTING EXPERTS

BIBLIOGRAPHY

 

I. ROLE OF CHIROPRACTIC IN HEALTH CARE

A. Current Utilization of Chiropractors

The cornerstone of chiropractic care is the chiropractic adjustment and segmental mobilization. Chiropractors also utilize other adjunctive treatments, including physical therapy, rehabilitation and soft tissue manipulation. With an increase in conservative or more natural methods of health care, utilization of chiropractors has risen dramatically in recent years. Millions of Americans now include chiropractic care as part of their health care programs. Recent studies published by (1) the British Medical Journal, (2) the Manga Report, and (3) the Rand Corporation, document the efficacy of chiropractic treatment in treating certain structural disorders. Acceptance of chiropractic treatment within the medical profession has grown, as evidenced by the growing number of referrals from medical doctors in recent years.

B. Historical Role
Historically, many of the early founders of chiropractic believed that a spinal misalignment or subluxation was responsible for disease and other physical maladies. They believed that correction of these subluxations through spinal manipulation could cure most anything. A minority of chiropractors still adhere to this one cause one cure theory. The group is commonly referred to as "straight chiropractors", and they tend to align themselves with the International Chiropractic Association. Most chiropractors currently see themselves as specialists mostly treating soft tissue and skeletal disorders. They regularly interact with other health care professionals and tend to align themselves with the American Chiropractic Association.

II. RECOGNITION AND REGULATION

The chiropractic profession is licensed and regulated in all 50 states, the District of Columbia and many foreign, countries. The federal government recognizes chiropractic care and includes it in health coverage for many of its employees, as well as in Medicare and Medicaid. Many commercial policies also include care, along with many managed care programs. All states include chiropractic care as part of their workers' compensation programs.

Every jurisdiction regulates the scope of chiropractic treatment by statute and/or case law. Currently, Michigan has the most restrictive scope of practice, while Oklahoma has the broadest. In Michigan, chiropractors are limited to locating and treating spinal misalignments or subluxations. In Oklahoma, chiropractors are allowed to perform any diagnostic tests and procedures taught at any of the approximately thirteen accredited chiropractic colleges. This allows them to:
Utilize physical therapy modalities,
Draw blood,

Perform acupuncture,

Do pelvic and rectal exams, and

Assist in childbirth with others.

Chiropractors are prohibited in all jurisdictions from:
Prescribing medications,
Performing surgery, and
Administering injections.

III. EDUCATION

A. Undergraduate Preparation
All applicants to chiropractic colleges must have a minimum of 60 semester hours of college credits from a two or four-year college or university with state or regional accreditation. The majority of chiropractors have four-year undergraduate degrees, and there is a trend to making this a requirement to enter chiropractic school.

B. Chiropractic College
Chiropractic education is geared to prepare the practitioner to be a portal of entry or primary care provider in the health care system. The chiropractor is educated to evaluate, diagnose, treat, consult with and refer to other members of the health care community.

The chiropractor's four year educational training is similar to that of a medical doctor or osteopathic physician. However, chiropractors receive no surgical training and much less training in pharmacology. The substitute tends to be with additional courses in anatomy, physiology and diagnosis. Chiropractic education at accredited chiropractic colleges follows guidelines specified by the Chiropractic Council on Education ("CCE") a division of the Department of Health, Education and Welfare. The CCE is nationally accredited agency established in 1974 to provide chiropractic colleges with academic and clinical guidelines.

C. Postgraduate Education
Presently, postgraduate education and residency programs are available in several areas of study. However, CCE standards do not apply to these programs, making their quality and value extremely variable.

D. Continuing Education
The scope of chiropractic practice changes periodically, so chiropractors must keep current. The vast majority of states require a minimum number of hours of board approved continuing education for license renewal.

IV. INITIAL EXAMINATION
All initial chiropractic exam and work up is similar to most traditional medical exams.

1. Information Taking
Initially the patient should fill out an entry data form or a confidential patient health record.

2. Review
The doctor should review this initial information with the patient.

3. History
The doctor should take a comprehensive complaint history. This history taking process is considered by many to be the most important process in the interaction between the doctor and patient. The taking of a complete history aids the doctor in deciding what type of examination and procedures to utilize. A complete history should include:
Present symptoms and complaints; and
Personal, family and accident history along with a review of systems.

4. Physical
Generally a physical examination should include:
Taking of vitals, checking ranges of motion, muscle testing,
Neurological and orthopedic testing,
Palpation, auscultation
Observation, and postural examination
A vascular examination.

The physical examination will vary considerably based on location, duration and severity of the complaint.

5. Diagnostic Studies
Following the physical examination, the chiropractor should initiate diagnostic testing. The chiropractor should perform an X-ray study including at least an AP or lateral view on areas of involvement or regions of the the chiropractor anticipates will require manipulation. Plain film radiography rules out bony or soft tissue pathology, and assists the chiropractor in biomechanical assessment. The chiropractor may elect not to take X-rays in the case of a pregnant female, or where current prior X-ray or other diagnostic studies are available.

6. Post-Examination Conference
Following the initial history, examination and diagnostic studies, and prior to commencing treatment, the doctor should conduct a post-examination conference or a report of findings. This conference is vital to:
Discuss findings from the initial workup,
Explain the diagnosis,
Explain the anticipated treatment program, and
Explain some of the risks and benefits of chiropractic care

7. Referral
In some cases, the patient may have a condition not amenable to conservative care. In this case, the chiropractor should refer the patient to another health care provider.

V. TREATMENT

1. Progress Notes
Once a patient is under active care, the doctor has the duty to maintain thorough daily progress notes. These entries should explain in detail what transpired between the doctor and patient on each visit. In addition, the doctor should date and initial each entry. Adequate daily progress notes are vital to justify continued care and periodic reassessment of the patient's progress and response to treatment.

2. Additional Treatment
If treatment is ineffective or new symptoms arise, the practitioner can re-examine the patient, perform or obtain additional diagnostic tests, or refer the patient to another health care provider.

VI. STANDARDS OF CARE
The standards of care applicable to the chiropractic profession apply nationally. They are primarily based on what is taught clinically and academically in the CCE accredited chiropractic colleges. The standards are also based on the level of care provided by well-trained, qualified and competent chiropractors. The guidelines set forth by the Mercy Center Consensus Conference, entitled A Synopsis of the Guidelines for Chiropractic Quality Assurance and Practice Parameters, published in 1992, also addresses standards of care within the chiropractic community.

VII. MALPRACTICE

A. Causes
Some common complications from chiropractic manipulative therapy include:
Vascular injuries,
Paralysis,
Fractures,
Disc lesions,
Soft tissue injuries,
Paralysis, and

Comas.

Malpractice can also arise from a failure to refer or diagnose in a timely fashion.

B. Malpractice Actions
Until the last few years, malpractice actions against chiropractors were rare, but with the tremendous increase in utilization, and the number of providers, malpractice claims against chiropractors have increased. Verdicts against chiropractors in malpractice actions are highest in cases involving neurological or vascular injuries and failures to properly diagnose. In March 1991, a Connecticut jury awarded a 41-year-old pediatric nurse $10 million based on the chiropractor's failure to warn of the risk of stroke with cervical manipulation. Following manipulation of the cervical spine, the woman suffered a stroke that caused her to become a quadriplegic.

VIII. CASE SCREENING (This is primarily directed at plaintiff attorneys)

A. Initial Contact
In the first telephone conversation with the potential client, find out why the client believes the doctor has been negligent, and what damages have resulted. Determine what records, if any, the client has in his possession. If there appears to be a meritorious case, arrange for a face-to-face meeting. Prior to this meeting, have the prospective client prepare a statement documenting events leading up to, during and subsequent to the act of negligence. This should be prepared at the attorney's direction in anticipation of litigation. In addition, arrange for the prospective client to bring any documentation or records to the meeting.

B. The Client Interview
Initially, review with the potential client this written statement along with any records. Advise her of the time, cost, emotional trauma and loss of privacy involved when pursuing a negligence claim against a doctor. Arrange to obtain any records that are needed. This includes all chiropractic and- medical records prior to, after and during the time of the incident. In addition, information pertaining to expenses, lost income and other damages resulting from the malpractice should be obtained. The importance of compiling all available records to the potential client cannot be overemphasized. Even a seemingly insignificant fact or bit of information could have a dramatic impact on the outcome. Extensive objective evidence and documentation are needed to prove breaches in the standards of care, causation and damages.

C. Analyze the Facts
From the information, determine if there were breaches in the standards of care. Did the doctor take an adequate history, a complete examination and were diagnostic tests performed? Was informed consent obtained during a post-examination conference? Did the doctor set up a treatment plan and arrive at a differential diagnosis based on the results of a comprehensive workup? Did the treatment appear reasonable, and was the outcome anticipated? When problems arose, did the doctor address these in a reasonable and appropriate fashion? Can you establish a causal relationship between breaches in the standards of care and the adverse outcome?

D. Determine the Legal Issues and Arguments
Weigh the pros and cons of the case and discuss with the potential client. The best way to do this is by taking the opposite position. If you are representing the plaintiff, analyze this situation from a defense point of view. The most desirable cases for the plaintiff are those with simple well documented injuries clearly traced to substandard chiropractic care. By way of example, allegations of a herniated disc in the lower back resulting from chiropractic manipulation typically present a reasonable case. An ideal situation is where the patient presents to the chiropractor with mild uncomplicated lower back pain related to working around the yard, and records show that the chiropractor failed to do an adequate workup, took no X-rays, kept no daily progress notes and never conducted a post-examination conference. The doctor proceeded to forcefully manipulate the patient's lower back while in a side posture position, causing extreme rotational strain. The patient experienced tremendous pain in the lower back which radiated the right lower extremity. Ambulation was difficult and numbness was felt in the entire right leg shortly thereafter. The patient is transported to the emergency room, where an exam, X-rays and MRI arc performed. These tests reveal the existence of a large herniated disc at the L4-L5 level. A short regimen of physical therapy proves unsuccessful, and surgery is eventually performed. Obviously, this is a favorable situation for the plaintiff, and complicating issues need to be evaluated prior to further involvement.

E. Additional Action
If the situation seems favorable, discuss the anticipated course of action with the client. Explain how experts are needed to prove the merits of various aspects of the case. In addition, formal discovery is needed to procure all records and documentation. Financial arrangements are made with regard to obtaining experts and all necessary documentation.

IX. LOCATING AND SELECTING EXPERTS

A. Finding the Chiropractic Expert Witness
It can be very difficult to find a qualified, competent, experienced chiropractor who is both in active practice and willing to become involved in a malpractice action against another doctor. The chiropractic community is a small, close knit group that generally takes a dim view of anyone critical of its members. The pressure on fellow professionals, especially at the local level, to support the profession is intense. Frequently, an attorney will hire a local chiropractor to testify against another doctor in the community only to have him withdraw due to intense peer pressure. For this reason, it is often wise to avoid hiring a local expert to testily on behalf of the plaintiff.

On the other side of this equation, the defense should have no problem finding many qualified and willing experts. Indeed, chiropractors will generally rush to the aid of a fellow professional accused of negligence. The most desirable expert is one who has several years of clinical and legal experience. The expert should be a graduate of a fully accredited chiropractic college, with a four- year undergraduate degree. The expert should also spend the majority of his or her time in active clinical practice. In fact, many states have set guidelines pertaining to the percentage of time an expert needs to spend practicing as opposed to the time spent on forensic matters. Many states have imposed a 50-50 rule, which limits the time an expert may spend on forensic activities. Maryland is the most restrictive state, limiting qualified experts to annually devoting less than 20% of professional time to activities that directly involve testimony in personal injury cases. Even in states without these requirements, avoid hiring an expert with impressive educational credentials, but lacking in past and current practical experience. These doctors may be out of touch on issues affecting the field practitioner on a day-to-day basis. They will usually be an easy target for opposing counsel to discredit. Teaching and lecturing are desirable activities. Jurors view such activities as respectable. Authoring professional and non-professional publications also adds credibility.

A limited number of carriers offer chiropractic error and omissions coverage. National Chiropractic Mutual Insurance Company ("NCMIC"), a mutual insurance company owned and operated almost exclusively by policyholders, insures the majority of chiropractors in this country. It presently offers only occurrence policies, NCMIC markets itself to the chiropractic profession by advertising that they will not settle your claim, unless you authorize them to do so. This lack of a "hammer clause" can cause a case not to settle when a stubborn chiropractor is involved.
Many other malpractice policies have hammer clauses. A hammer clause is a policy provision which places significant pressure on a professional to settle on the terms requested by the insurance carrier. This is accomplished by placing a penalty on the failure of the policyholder to settle on the recommended terms. By way of example, if an insurance company recommends that the doctor settle a claim for $20,000, an amount acceptable to the plaintiff, and the doctor refuses, the doctor will be liable, under most provisions, for any excess judgment or settlement. The purpose of this provision is to not allow a doctor's emotions or desire for vindication to overcome common sense. The cost of litigation can greatly exceed the settlement value of a case. A case that could be easily settled for a few thousand dollars, can end up costing the carrier significantly more in legal fees.

B. Locating Experts
The best, most desirable way to locate an expert is through a referral from someone having first hand knowledge of the individual and his or her abilities. Check with law firms and attorneys specializing in medical malpractice for referrals. It is very common for attorneys specializing in negligence claims to maintain lists of experts in various fields. If this first method of locating an expert is unsuccessful, check various national and regional jury and case reporting services. These services generally list and describe verdicts involving chiropractic negligence, along with the names of expert witnesses for both the plaintiff and the defendant. 
Another way to locate experts is through forensic and expert witness services. These companies generally maintain lists of experts m various fields for both the plaintiff and defense. The quality of these experts may vary considerably depending on how carefully they are screened, and what qualifications are required. The fees are usually paid by the attorney, as either an initial fee or as a percentage of hourly fees for various services. Most of these companies advertise extensively in publications such as the American Bar Association Journal, the National Law Journal, Trial Magazine and local and regional publications. Recently, companies such as Martindale-Hubbell have begun offering data bases of expert witnesses in many fields. Some of these companies do not have any involvement with chiropractic experts.

If you consider using one of these expert witness services, there are several areas that need to be investigated prior to making a final selection. Analyze who runs the company, their background and professional qualifications, and how long they have been operating. Also analyze their basis for hiring, screening, qualifying and evaluating the experts they use. Finally, consider their fee arrangements and their policy if you are not pleased with an expert.

C. Selecting Experts
Make a list of all perspective experts and telephone them. Initially, speak with them briefly about the situation, noting their ability to communicate and comprehend the issues. Specific areas of investigation initially include the following:
• Educational background and clinical experience
• Percentage of work done on behalf of the plaintiff and defendant
• In which jurisdictions the expert is licensed, has worked and been qualified to testify
• Willingness to testify and travel
• Total number of cases reviewed and testimonial experience
• Specific fee arrangements and turnaround time
• What percentage of cases are without merit, and how is this handled
• Time spent in active clinical practice versus forensic matters
• Prior personal, legal or personal issues that might affect credibility

If your initial impression is favorable, have the expert send a copy of his or her current Curriculum Vitae, a fee schedule, list of references and articles that address the issues involved in this case.

D. Hiring the Expert
If possible, arrange to meet personally with the expert before hiring him. However, many times, this is not feasible or practical, especially if the expert lives in a different geographic area. Once you have decided to hire an expert, based on your prior investigation, meeting and/or discussion, finalize the arrangements. You will need to clarify financial matters and discuss time factors relating to work needed on the case. Establish whether the initial fee will include an affidavit or a written report, if needed. Advise the expert that, after reviewing the file completely, you will want to discuss various aspects of the case pertaining to causation, standards of care and permanency of injuries. Typically, you should instruct an expert not to provide a written report, at lease initially, In some jurisdictions, written reports are discoverable, and could seriously damage the case, especially if unfavorable. Many states require an affidavit from an expert qualified by education, experience and training, in order to bring suit.

The attorney needs to assemble a comprehensive package of information to allow the expert to begin the review process. This packet should include a brief summary of the pertinent events surrounding the situation in question. This summary, and all other written correspondence with the expert, must be objective, concise and impartial. Correspondence should be written with the expectation that the other side will have access to it.

In addition, the expert will need the records of all medical and chiropractic providers prior to, during, and subsequent to the date of the alleged injury. The importance of sending all records cannot be overemphasized! Some attorneys, in an attempt to obtain a favorable initial opinion, will omit damaging material and provide it at a later date. Of course, this almost always leads to a subsequent change in the opinion.

Along with medical records, any other documentation relating to the incident and surrounding events must be provided to the experts to make the expert's job easier, clearly label and organize all materials. It is very frustrating for an expert to receive a box of raw materials that has been crudely thrown together. Finally, make sure to include a check for the initial review and oral presentation, instruct the expert to contact you immediately if there are any problems or questions with the initial information provided. Advise the expert that, if additional information is required, a conference call with your client may be arranged. Barring any unforeseen circumstances, the expert should be able to provide an initial oral opinion within a two to three week period.

I. The Initial Review
After the initial review, the expert should be able to answer the following questions:
(1) Did the chiropractor deviate from the accepted standards of care within the chiropractic profession? If so, the expert should also be able to give specific examples of negligence.
(2) Within a reasonable degree of medical/chiropractic certainty, did these deviations cause or contribute to the resulting injury or damages?
(3) The extent of these injuries and the permanency?
(4) Even though all the elements of negligence may exist, are the damages so minimal as to make recovery a waste of time and resources?

Keep in mind, negligence can result from omission or commission. An example of omission would be the failure to diagnose or refer in a timely fashion a condition requiring medical intervention.

The main purpose of this initial oral report is to allow the plaintiffs attorney to determine whether to pursue the case further. For the defense, the main purpose is to assess the merits of the plaintiff's claim and strength of available defenses. The expert should fully discuss the pros and cons of the situation with the attorney, making reference to specific examples, the plaintiffs claim and the strength of available defenses.

While the expert is giving his initial opinions, either record the conversation or take detailed notes. Recording the conversation is the preferred method, because it allows you to replay it at a later date. As you know, what is important may change over the life of a case. Try to hold any comments, discussion or questions until the expert has finished his or her presentation. Following the report, discuss any issues that were not covered adequately or need clarification. Always remember that the purpose of this initial opinion is to assist in future decision making regarding the case. Any additional discussion should be conducted with this goal in mind. If you disagree with the expert's opinion, avoid arguing or trying to change her opinion. If you are able to persuade the expert to change her opinion, chances are that she will waiver throughout the case, particularly during cross examination.

If you obtain an unfavorable initial opinion, you have two options. Option One: live with it and accept the findings. Option Two: hire another expert. If the expert based his opinion on logical facts and is able to support these conclusions, you should probably listen to him. After all, the reason you hired him in the first place was to inform you about areas in which you have little or no expertise. Be flexible and use the information provided to assist in future decision making and handling of the case.

Unless you are required to provide an expert's detailed written report or affidavit when filing suit, keep these documents as brief as the court will allow, A lengthy detailed report or affidavit provides the opposite side with information that could be used to their advantage. As the case progresses, facts and opinions may change and the initial report will not reflect these factors. This same advice holds true for interrogatories - keep your responses brief and to the point. Most importantly, make sure they are responsive, answering only the question asked.

2. Discovery
Prior to deposing the opposing chiropractic expert, consult with the chiropractic expert you have hired. At a minimum, you will want to find out the following information about the opposing chiropractic expert witness:

(a) Educational Background and Clinical Experience:
(1) Pre-professional, professional and postgraduate education, including credit hours, subjects and any advanced certification.

(2) Information regarding published materials.
(3) Lecture and teaching experience.
(4) Specifics regarding practice, teaching, research or other professional activities.

(b) Background as Expert Witness:
(1) Years of involvement and how he initially become involved as an expert.
(2) Caseload and percentage of work done on behalf of plaintiff and defendant.
(3) Fee structure, percentage of time and income derived from forensic work.
(4) Types of cases reviewed in past (material of the allegations).
(5) Jurisdictions in which cases reviewed and/or testimony given.
(6) Has expert been disqualified in any jurisdiction.
(7) Prior occupational information.
(8) Are her expert witness services marketed.

3. Opinions arid Involvement in Case
(a) Dates and specifics of initial attorney contact, including how expert was hired.
(b) Information and content of oral and/or written reports.
(c) Current fees charged and anticipated future costs.
(d) Did expert contact or examine involved parties or witnesses, including discussions with other experts.
(e) Extent of testimony, does it include standards of care, causation or other topics.
(f) Expert's understanding and definitions of standards of care, causation, negligence, informed consent, locality and similar terms.
(g) The expert's understanding of the facts and circumstances surrounding this case.
(h) The expert's opinions regarding the professional behavior of the plaintiff or the defendant chiropractor.
(i) When opinions were formed and the basis for them; ask for specific sources and examples preparing your expert for testifying at trial, deposition or a board hearing.

Generally, an expert will have her deposition taken prior to testifying in court. In some jurisdictions, experts may be called to testify at a medical or chiropractic review hearing in order to establish a basis for findings of negligence. The use of video depositions is strongly discouraged, unless extenuating circumstances make it impossible for the expert to appear live in court. An effective, articulate, well-heeled doctor testifying live at a trial can have a strong impact on a judge and, particularly, on a jury.

The amount of preparation will vary considerably depending on the amount of experience your expert has in testifying. An experienced expert with many years of forensic experience may require only about 15 minutes of your time to review the specifics of a particular case prior to his testimony. An inexperienced witness will take far more time. She needs to be made aware of what to expect and to be prepared to defend and prove her opinions in a pressured situation. You may want to review the section on preparing to depose the opposing chiropractic expert for deposition with your expert prior to having her testify. In addition, you need to explain how the main purpose of her testimony is to assess the quality of care rendered and to support these opinions with pertinent literature.

The expert must avoid becoming an advocate for a certain position and must keep his testimony unbiased and objective. Testimony must be based on the appropriate standards of care and not on personal opinion, bias or specific points of law.

The expert witness for the defense will need to show that the doctor was concerned about the welfare of his patient and took extra precautions to anticipate problems. One big mistake an expert may make during testimony is to lose his temper and become openly hostile or argumentative with opposing counsel. An experienced attorney will do his best to get the expert to "blow his cool." The expert must be instructed to listen carefully to the question prior to responding. If he is unable to understand or respond to the question, ask for clarification.

The legal doctrine of reasonable probability should be reviewed, thoroughly explained and understood. Either party to a lawsuit is rarely completely at fault. Explaining that an event or injury occurred within a reasonable degree of medical/chiropractic certainty takes into account the possibility of some limited intervening events or factors. During testimony, the use of such phrases as most likely, usually, generally, almost always and similar ones should be encouraged. The expert should avoid making definitive statements that may trap her at a later date. Many attorneys attempt to have the expert respond with a yes or no. At times this is not possible, and the way to deal with this situation should be fully explained. When opposing counsel is not satisfied with an answer, he will frequently ask the same question in a slightly different form, hoping to elicit a different response. The use of hypotheticals and how to deal with these should be fully explained to the expert. The expert must always be truthful and should not be afraid to admit he does not know the answer to a particular question.

During direct examination of your expert, readily reveal information that is negative and/or possibly damaging to the expert. No one is perfect. Everyone has personal and professional issues which opposing counsel will try and use to discredit the expert. When you bring these facts to light initially, it helps to minimize their importance and potential for damage. Frequently, when the opposing side has a weak case his counsel will personally attack the opposing expert and avoid discussing the expert's testimony.

Another tactic sometimes used by the defense is to attempt to prove that there is not a national standard of care applicable in the instance of this case. This defense is most often seen when the defendant is practicing in a small town. The plaintiff's expert will need to prove with appropriate documentation and sources that a national standard in fact exists.

Defense attorneys must make sure that their experts are intelligently prepared to defend the doctor. Frequently, the defense expert will testify as to the appropriate standards of care relative to patient treatment and management. They will defend the doctor's actions as being appropriate, even where the doctor has grossly violated standards as stated in prior testimony. The expert needs to accept and deal with the facts when the doctor has violated standards of care, rather than explaining how he is somehow immune to them. A more sensible approach is to admit to breaches in the standards of care, but prove how they failed to contribute to the harm suffered by the plaintiff.

Other defense strategies include proving that contributory acts or preexisting injuries significantly impacted causation. When proving negligence, it has to be shown that breaches in the standard of care somehow contributed to or caused damages. This defense may be important when the doctor has failed to diagnose or refer the patient with an underlying illness or disease. If it can be proved that this failure to diagnose or refer had no bearing on the adverse outcome if the doctor may not be held liable. Similarly, a doctor who has made an error in judgment may not be liable for the unfavorable outcome if the applicable standards of care were followed while treating the patient.


The old legal adage of never asking a question unless you know what the answer will be, should always be kept in the back of your mind throughout this entire process.

BIBLIOGRAPHY
(1) Koes BW, Assendelft WJJ, van der Heijden GJMG et al. Spinal manipulation and mobilization for back and neck pain; a blinded review. British Medical Journal 1991 November 23:303(6813): 1296-1303.
(2) Manga P, Angus DE, Swan WR. Effective management of low back pain: it's time to accept the evidence. Journal of the Canadian Chiropractic Association 1993 December; 37(4):221-229.
(3) Shekelle PG, Adams AH, Chassin MR et al. The appropriateness of spinal manipulation for low-back pain: project overview and literature review. Santa Monica, CA: RAND, 1991. (Presents results of the first stage of the "RAND Study") (WB 905 A6522 1991).
Shekelle PG, Adams AH, Chassin MR et al. The appropriateness of spinal manipulation for low-back pain: indications and ratings by a multidisciplinary expert panel. Santa Monica, CA: RAND, 1991. (Presents results of the second stage of the "RAND Study") (WB 905 A652 1991).