Negligence: Chiropractic Malpractice/Stroke - $450,000 Settlement

Injuries alleged: Brain injury

Name of case: Withheld

Court/case Withheld

Tried before judge or jury: Mediation

Name of judge: N/A

Special damages: $108,000 (Medicaid lien)

Amount of settlement: $450,000

Date: May 17, 1996

Highest offer: $450,000

Most helpful experts: Kenneth Murkowski, D.C., Jackson, MI

Insurance carrier: Withheld

Attorney for plaintiff: Kenneth I. Kolpan, Boston

Attorney for defendant: Withheld

Other useful information:

In August 1991, the plaintiff, a 32-year-old nanny, was treated by the defendant chiropractor for injuries she sustained in a motor-vehicle accident where the vehicle she was driving was rear ended and pushed 200 feet. The plaintiff was relieved of her symptoms after treating with the defendant.

In June 1993, the plaintiff was in a minor motor-vehicle accident. Though she did not tell the defendant, the plaintiff's headaches had increased in severity from the date of the June 1993 accident until she next saw the defendant in August.

On Aug. 23, 1993, the defendant chiropractor examined the plaintiff and performed an adjustment on the plaintiff's neck without complication. The plaintiff returned for a repeat neck adjustment on Aug. 27, 1993. The plaintiff lay down on the examining table with the defendant at the plaintiff's head. He lifted the plaintiff's head forward and applied a thrust motion twisting the plaintiff's neck, an acceptable procedure in chiropractic medicine for treatment of headaches. The plaintiff became stuporous, vomited and quickly went unconscious. She sustained a stroke.

The plaintiff was rushed to the emergency room of 'Newton/ Wellesley Hospital where diagnostic films demonstrated that she had sustained a dissection in the intimal wall of the left vertebral artery just as it sharply turns at C-1. The dissection likely caused a clot to form at this juncture. Tails of the clot then likely broke off from the vertebral artery, traveled to the basilar artery and then bilaterally to numerous distant and narrower arterial branches. The clot fragments eventually became lodged in distal brain arteries causing decreasing blood flow and death to brain cells in diffuse brain areas including the thalamus and frontal lobes. The inevitable consequences were that the plaintiff sustained permanent damage in brain areas responsible for memory, cognition and emotions.

Suit was brought against the defendant chiropractor for his failure to property diagnose the plaintiff's condition; failure to determine the nature and severity of the plaintiffs headaches; failure to refer the plaintiff to appropriate specialists for evaluation of her medical condition; and failure to inform the plaintiff of the material risks of performing a cervical adjustment on an otherwise healthy patient.

The phenomenon of vertebral artery dissection from chiropractic cervical manipulation has been reported in the medical literature for years. Through discovery, plaintiff's counsel obtained the defendant's notes and books from the school where he obtained his degree, Palmer College of Chiropractic Medicine, which showed the defendant had been informed about the risk of vertebral artery dissection from cervical manipulation. One article in the defendant's possession warned the defendant to take precautionary tests before attempting cervical adjustments to help avoid a malpractice suit. The defendant claimed, however, that the phenomenon of vertebral artery dissection from cervical manipulation was extremely rare, and it was not possible to determine beforehand which patients were at risk.

The defendant admitted that he did not tell the plaintiff the risks of cervical adjustment nor did he have the plaintiff sign any informed consent form regarding the procedure. The defendant admitted that he did not refer the patient to any specialist nor did he perform tests to measure vertebral artery insufficiency.

The plaintiff's experts were a Harvard Medical School neurologist and a nationally renowned chiropractor. The neurologist proffered that vertebral artery injury, with dissection of the lining of the vessel causing a stroke, was a known potential and material risk of chiropractic cervical manipulation which had been reported in the medical and chiropractic literature for years and should be known by those who practice chiropractic medicine, though the frequency of its occurrence is debated.

The plaintiff's neurological expert would have testified that the defendant was negligent in his diagnosis of the nature and treatment of the plaintiff's reported headaches. The expert opined that the plaintiff's headaches were related to craniate nerves and likely would not have responded to the defendant's chiropractic treatment of cervical manipulation. The defendant asserted that the cervical manipulations, some of which provided relief to the plaintiff, were not the likely cause of the plaintiff's stroke. Further, he would have testified that the MRI filing demonstrated a tear in the intimal wall of the vertebral artery at the first cervical vertebrae which is the 'classic location" for the vascular damage in this type of chiropractic manipulation. Also, the plaintiff became symptomatic of an ischemic stroke in the "posterior circulations while undergoing and immediately after chiropractic cervical manipulation by the defendant on or about Aug. 27, 1993.

The plaintiff's chiropractic expert would have testified that the standard of care in chiropractic medicine required the defendant to disclose to the patient the material risk of cervical manipulation. Kenneth Murkowski based his opinion, in part, on the publication, Proceedings of the Mercy Conference presented by the American Chiropractic Association. The published Proceedings required chiropractors to obtain and document the patient's informed consent. Dr. Murkowski was a consultant to the Mercy Conference and the defendant's insurance company was a major sponsor and financial supporter of the proceedings. The defendant admitted he received the publication prior to his August treatment of the plaintiff.

Dr. Murkowski was also to testify that the defendant was negligent in his treatment of the plaintiff when he failed to document and check the plaintiff's cranial nerves and failed to perform neurological examinations and other appropriate examinations. Dr. Murkowski would have testified that the defendant deviated from the standard of acceptable chiropractic care in failing to perform and/or document the necessary tests to obtain required clinical information before performing the cervical manipulation adjustment on the plaintiff. Without this data, the defendant likely lacked the clinical knowledge to make the decision whether the plaintiff should or should not have been adjusted on a particular day. The defendant failed to document what specific techniques he used during the adjustment procedures, the type of table used or the direction that the vertebrae were moved, in violation of the standard of acceptable chiropractic care and applicable Massachusetts Regulations of the Board of Registration of Chiropractors.

Dr. Murkowski would have also testified that the defendant's failure to take x-rays or refer the plaintiff for spinal x-rays and other diagnostic films was a deviation from the standard of acceptable chiropractic care given her complaints and reported symptoms.

Dr. Murkowski would have testified that, prior to Aug. 27, 1993, the defendant failed to provide the plaintiff with information regarding the material risks of cervical manipulation, and therefore the plaintiff was unable to give informed consent regarding the cervical manipulation performed by the defendant.

The case was settled three weeks prior to trial.

Published with permission of Massachusetts Lawyers Weekly.