Chiropractors are health care providers who are not doctors, so how does chiropractic malpractice work? Does a claim for chiropractic malpractice proceed any differently from a regular medical malpractice claim? Read on to learn more.
Chiropractic is a relatively new health care technique (it was founded only in 1895) that customarily involves the manipulation of the injured body part, most often the neck, back, and/or shoulders. Chiropractic has always been somewhat controversial among established health care providers, although most health insurers now pay for chiropractic treatment as a matter of course.
The first question really is what is malpractice, whether it be chiropractic or medical malpractice. Basically, malpractice is simply a fancy word for negligence. So, chiropractic malpractice is the same thing as chiropractic negligence.
In general, negligence means not exercising reasonable care (basically, doing something wrong). In medical and chiropractic malpractice cases, courts often define negligence as a health care provider’s failure to exercise the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the advances in the profession and resources available to the provider.
So, in order to prove that a chiropractor committed malpractice, you have to prove that the chiropractor was negligent.
Chiropractic malpractice lawsuits typically involve misdiagnoses, failure to get informed consent from the patient, and/or injuries during the treatment. Misdiagnosis is pretty straightforward, so let’s look at the other two a little more closely.
Informed consent means that the patient specifically consents to the proposed treatment. In order for a patient to give proper informed consent to a chiropractic manipulation, the chiropractor must inform the patient of all of the risks and complications that may reasonably occur during the manipulation, however minor they may be.
Only after a patient is truly informed about the potential risks of treatment can a patient give informed consent to the treatment.
Chiropractic manipulation has been claimed to cause various different types of injuries, such as:
The possibility of stroke is an especially serious complication. People under age 45 who have chiropractic neck manipulation have been found to be more at risk for a stroke than someone who has not had chiropractic neck manipulation because of the pressure that the neck manipulation places on the vertebral arteries.
The first thing that a typical medical malpractice lawyer will do after taking a case is to thoroughly interview you about your medical condition and medical and chiropractic treatment. The lawyer wants to make sure that he/she knows everything that you know about your condition and treatment. Then, the lawyer will get all of your medical and chiropractic records and bills relating to the alleged malpractice. He/she may also get your old medical records for any treatment that you have ever had relating to the condition at issue in the case.
After the lawyer gets all of your medical records, he/she will review them to see if, in their opinion, there is a possible malpractice case. Many times the lawyer can determine that there is no case and will deliver the bad news to the client very early on in the representation.
If your lawyer thinks that you may have a malpractice case against the chiropractor, the lawyer will search for and hire an expert medical witness.
In order for a chiropractic malpractice case to get to trial, the plaintiff must usually retain a qualified medical expert, usually a doctor who practices in the same specialty as the defendant. The expert must have reviewed the plaintiff’s medical records and issued an opinion that the defendant was negligent and that the defendant’s negligence was a cause of your injuries and damages.
In a chiropractic malpractice case, the expert must naturally be a chiropractor, because only a chiropractor will be deemed qualified to give an opinion of negligence against another chiropractor.
In many states, the plaintiff’s lawyer must submit what is called an Offer of Proof or Certificate of Merit after filing a medical malpractice lawsuit. The Offer of Proof or Certificate of Merit ensures that the lawsuit is at least arguably a legitimate chiropractic malpractice case.
Some states require that the Offer of Proof or Certificate of Merit be filed with the court, while others simply require an affidavit from the lawyer swearing that he/she has consulted with a qualified chiropractic expert who believes that the plaintiff has a legitimate chiropractic malpractice case. See our article, Suing a Chiropractor for Injury for more on following through with a lawsuit.