Attention Policyholders:For more than 200 case studiesand articles, go to the “My NCMICLogin” tab of www.ncmic.com andclick on “Examiner Case Studiesand articles.”

S P R I N G 2 0 1 4 | PA G E 1ExaminerCOMPELLING CASE STUDIES AND PRACTICAL T IPS FOR AVOIDING A MALPRACTICE ALLEGATION

Lost Records Challenge Defense

On June 25, 2005, 44-year-old DerrickNewell, a tobacco farmer, hurt his low backwhile attempting to step up onto the rearbumper of his truck. He lost his footing whenhe fell backward onto the ground and landedon his buttocks.

That same day, Derrick visited his primarycare physician, Reginald Torrison, M.D., reported his fall and complained of low back pain and stiffness. Dr. Torrison ordered plain film X-rays of thelumbar spine, which were negative for any fractures or dislocations.

Dr. Torrison diagnosed a lumbar sprain/strain and prescribed pain medication and home exercise therapy. He instructed Derrick to restrict his lifting and return in one week. Derrick returned to Dr. Torrison with onlyslight improvement of his symptoms. After that, Derrick chose not to returnto Dr. Torrison. Instead, he decided to seek chiropractic care.

Patient Sees a Doctor of ChiropracticDerrick presented to Delbert Ringe, D.C., on July 21, 2005, and completed

an intake form. Dr. Ringe obtained a history that Derrick fell a month earlierand that he lifted weights regularly. Derrick complained of low back painand stiffness that started when he fell. Although the intake form included aquestion about whether another healthcare provider had been consulted,Derrick did not disclose to Dr. Ringe the prior X-rays and care he receivedfrom Dr. Torrison.

Dr. Ringe conducted the straight leg raise, neck flexion and extension examinations that elicited restricted movement and slight to moderate pain.Lewin’s and Kemp’s also were conducted by Dr. Ringe and also elicitedsome pain. In addition, Romberg, Soto Hall, Fabre and Lindner examinationsconducted by Dr. Ringe were all negative. Based on his clinical findings, Dr. Ringe did not take X-rays.

Dr. Ringe identified subluxations at C4, C7, L4 and L5. Dr. Ringe’s treatment plan included the administration of mechanical traction, massageand side-posture manipulation to the lumbar spine.

Hidden Riskswith CommunityEventspage 8

Avoid the Potential Pitfalls of Social Mediapage 10

ExpandingServices?

What D.C.sMust Considerpage 12

Am I Still Covered if MyPractice is Incorporated?page 16

SPRING 2014

IN THIS ISSUE

continued on page 2

S P R I N G 2 0 1 4 | PA G E 2Examiner

Patient Improves But Symptoms Change Derrick returned to Dr. Ringe the next day with a slight improvement in

his low back pain and stiffness. However, he now reported new complaintsof numbness and tingling down his right leg.

In light of these new symptoms, Dr. Ringe took AP and lateral lumbarspine X-rays. These images again did not show any acute fracture but instead showed decreased disc height space and facet degeneration

that were suggestive of a possible discherniation. Dr. Ringe believed this was indicative of sciatic pain, and he recommended continuing with the sametreatment.

Derrick returned to Dr. Ringe on July25, 2005. His low back pain and stiffnesswere not resolved but slightly better. He no longer reported sciatic pain ornumbness. However, he now complainedof difficulty with moderate lifting and difficulty moving his arms and legs afterweightlifting. Given the circumstances,

Dr. Ringe thought Derrick was improved and the new complaints were theresult of fatigue from weightlifting. Dr. Ringe recommended to Derrick thathe continue with chiropractic care.

After two more visits in which Derrick reported slight improvement andno sciatic pain, Derrick returned to Dr. Ringe for a final time on July 29,2005. His low back pain and stiffness were again improved, but not completely resolved. Derrick still reported sore muscles and difficulty with lifting weights.

Dr. Ringe believed that Derrick had responded positively to chiropractictreatment and had improved sufficiently. Therefore, Dr. Ringe dischargedhim from further care. Dr. Ringe noted that Derrick had progressed to thepoint of only experiencing occasional discomfort, had returned to moderatephysical exercise, and did not have signs of a disc herniation or a permanentcondition.

Records Destroyed in a TornadoIn August 2005, Dr. Ringe’s office records, along with his patient records,

were lost in a tornado. That same month, Derrick returned to his primary carephysician, Dr. Torrison, reporting that he still had persistent pain from his fallthat had not been resolved by chiropractic care.

Consequently, Dr. Torrison referred Derrick to a neurosurgeon, Vern Erickson, M.D. Upon his visit to Dr. Erickson, Derrick reported numbnessand tingling down his right leg and into his foot that began and worsenedduring chiropractic care.

Dr. Ringe believed the

X-ray images were

indicative of sciatic pain,

and he recommended the

same treatment.

When Patient Records Are CompromisedIf patient records are lost orstolen causing a databreach—are you insured?

Data breachinsuranceprovides coverage for costs associatedwith the services toindividualswho are affected by the breach. This typically includesnotification, credit monitoring and a help line.

The average cost per record for a data breach is nearly $200 … a cost that can quickly add up foryour practice if patient records are compromised.

To find out more, contact anNCMIC agent at

agents@ncmic.com or 800-990-7002, ext. 8152.

Visit www.ncmic.com/insurancefor information about

other insurance services designed for D.C.s.

NCMIC Insurance Services is a licensed insuranceagency. Insurance coverage is underwrittenthrough many of the nation’s leading insurance carriers. CA license #0B84564.

S P R I N G 2 0 1 4 | PA G E 3Examiner

Dr. Erickson ordered an MRI that showed a moderate para-central discherniation at L5-S1 impinging on the S1 nerve root. As a result, Dr. Ericksonordered a few-week course of physical therapy, as well as epidural steroidinjections. A few weeks later, Derrick returned to Dr. Erickson and reportedthat these treatments did not reduce the numbness and tingling or resolve his pain.

At that point, Dr. Erickson scheduled Derrick for surgery and performeda laminectomy, foraminotomy and discectomy at L5-S1. The surgery resolvedDerrick’s pain. However, it left him with minor, permanent weakness in hisright leg.

Claim EnsuesIn July 2006, Derrick Newell filed a claim of malpractice against Dr. Ringe.

The complaint alleged Dr. Ringe failed to: • Obtain and record a proper history. Derrick claimed he told

Dr. Ringe about his prior care with Dr. Torrison and the X-rays he took.• Perform and record a proper physical examination. Derrick alleged

Dr. Ringe didn’t take into account a progression of his symptoms. • Obtain informed consent. Derrick alleged Dr. Ringe didn’t explain

risks associated with lumbar spine adjustments.• Appropriately refer the patient for follow-up care. Derrick alleged

that, despite indications of an aggravation or new disc injury, Dr. Ringe failed to refer him to a specialist.

Derrick Newell further contended that chiropractic care had worsenedhis back pain and caused a disc herniation that required surgery. Damagesincluded past and future medical bills, past and future pain and suffering,and permanent injury.

Doctor’s Credibility Becomes Even More CriticalA chiropractic expert retained by the plaintiff (Derrick Newell) testified

to multiple breaches in the standard of care by Dr. Ringe. Primarily, this expert’s focus was on the lost records and assumption that “if it wasn’trecorded, it didn’t happen,” even though the records were lost in the tornado.

Furthermore, the plaintiff enlisted the testimony of Dr. Erickson, the treating neurosurgeon. Dr. Erickson alleged that Dr. Ringe’s treatment significantly contributed to, and likely caused, Derrick’s disc herniation andneed for surgery.

A chiropractic expert retained by NCMIC offered his expert opinion thatDr. Ringe met the applicable standards of care. Also, an NCMIC-retainedexpert neurosurgeon opined that it was unlikely that Dr. Ringe’s treatmentcaused or worsened Derrick’s condition and need for surgery. In light of Dr. Ringe’s records being lost in the tornado, the NCMIC-retained expertshad to rely on the verbal testimony of others and subsequent medicalrecords to render their respective opinions.

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S P R I N G 2 0 1 4 | PA G E 4Examiner

Defense Focus and Assessment of the CaseDr. Ringe’s defense team believed it had compelling defenses to argue

based on the standards of care and causation. However, there were significant concerns about the potential outcome of the case. Primarily, thedefense team was apprehensive about Dr. Ringe’s lost records, as well asthe emphasis a jury might give to the testimony of the treating neurosurgeon(Dr. Erickson) who was not a paid expert.

The defense team believed that Dr. Ringe and Derrick Newell would bothappear credible and perform well when giving testimony before a jury. Alsoof concern was Dr. Ringe’s fairly low policy limit of $250,000, which mighthinder negotiations.

The defense attorney retained by NCMIC to defend Dr. Ringe indicatedthere was a 40 percent chance of successfully defending the case at trial.This percentage took into account the lost records and unfavorable testimonyexpected by the treating physician.

In the event of a verdict favorable to the plaintiff, Dr. Ringe’s NCMIC-retained defense counsel believed an award between $250,000 and$400,000 should be expected. This meant there was a good chance thatDr. Ringe’s policy limit would not be enough to protect him from personal financial exposure should the jury find for the plaintiff.

Case Goes to Trial with New AllegationsDuring the litigation discovery process, the plaintiff demanded Dr. Ringe’s

policy limit of $250,000 to settle the case. While taking into considerationhis potential personal financial exposure above his NCMIC policy limit,

Dr. Ringe believed he did nothing wrong and wanted the chance to defendhis good name. Therefore, he chose to have the case go to trial and not attempt to settle out of court.

The case then proceeded to trial on April 19, 2010. During the trial, theplaintiff’s retained chiropractic expert presented poorly. He was evasive inhis answers to questions asked by the NCMIC-retained defense attorney.

Credibility and jury decisions. Inmany “What Can We Learn” tips, I stressthe importance of keeping good records.Yet, this case had no records due to anatural disaster. (The possibility of thephysical loss of records is another benefit of electronic health records withback-up systems.) The admonition incourt proceedings is to never ask a question you do not know the answer to. In this case, the plaintiff’s attorneyharmed his own credibility and that of his client by suggesting that Dr. Ringe’srecords were not destroyed by a tornado.The fact that they were destroyed waseasily validated, supporting Dr. Ringe’s position. In addition, because Dr. Ringewas credible in his testimony, the jury believed him when he said he was notaware of the plaintiff’s prior medical care and films.

Consent to settle. At NCMIC, a doctorhas the final decision to settle—or notsettle—a case. Each case is reviewed onits own facts and risk/benefits, much likethe informed consent discussion youhave with patients. In this case, Dr. Ringe’sdecision not to settle was complicatedbecause his low limits of coverage hindered serious negotiations and theodds of a defense verdict were initiallyestimated at only 40 percent. The probability of an excess verdict (amountover Dr. Ringe’s coverage limits) madethe decision especially difficult. Dr. Ringe decided he wanted to clear his name despite the odds. Fortunately, the D.C.was able to prevail due to a top-notch defense counsel and a skilled claimsteam, as well as the plaintiff counsel’s

What Can We Learn?By Jennifer Herlihy, Boston, Massachusetts, and Providence, Rhode Island

continued on page 5

Cases often comedown to a battle of the experts.

S P R I N G 2 0 1 4 | PA G E 5Examiner

What’s more, this expert failed to show any sympathy toward Dr. Ringeabout the devastation to his practice as a result of the tornado. His flippantattitude was that it didn’t matter what the circumstances were—Dr. Ringewas still responsible for maintaining complete and accurate records. Consequently, this expert’s harsh testimony hurt his credibility.

Upon cross examination, the plaintiff’s treating neurosurgeon, Dr. Erickson,conceded that the plaintiff’s fall, the degenerative condition of his spineand/or weightlifting could have contributed to the plaintiff’s need for surgery.This reflected some wavering on his part from his initial stance that Dr. Ringe caused the patient’s injury.

Toward the end of the plaintiff’s case, and in an effort to discredit Dr. Ringe and infer that he may have purposely destroyed his records, theplaintiff’s attorney motioned the court to allow the plaintiff to enter evidencethat Dr. Ringe’s office was not damaged or destroyed by the tornado. Thisevidence was highly questionable. It was based on a random posting on awebsite by an unknown person who said that Dr. Ringe’s office was openafter the tornado.

Fortunately, Dr. Ringe had extensive evidence to the contrary, which included photos of the damage, as well as detailed insurance claim forms.Although the court allowed the jury to hear the plaintiff’s allegation, it wasquickly refuted by the defense team due to the doctor’s credibility and thecompelling evidence that the records were lost due to the devastating damage the tornado inflicted on Dr. Ringe’s practice, prior to the lawsuiteven being filed.

The Defense CountersIn contrast to the inconsistent testimony provided by the treating

neurosurgeon, Dr. Ringe and his retained chiropractic and neurosurgery experts all presented well and did not waiver from their testimony given during discovery. They all reaffirmed that Dr. Ringe provided proper chiropractic treatment and did not deviate from the standard of care. This testimony served to bolster Dr. Ringe’s credibility, which in absence of the records, became the centerpiece of the case.

At the close of the case, the plaintiff’s attorney asked the jury to award$500,000. After three hours of deliberation, the jury unanimously returned a verdict favorable to Dr. Ringe that he was not negligent with his care andtreatment of Derrick Newell. NCMIC’s costs to defend this case totaled$167,321.

Examiner case studies are derived from the NCMIC claims files. All names used in Examiner case studies are fictitious to protect patient and doctor privacy.

courtroom conduct that served to benefitthe defense.

Experts versus experts. Cases oftencome down to a battle of the experts. It is important to select experts who are dependable, fair, impartial and—aboveall—credible. In this case, the experts for the plaintiff changed their views whenconfronted with skilled questioning bydefense counsel. Moreover, the expertsfor the defense consistently presented the same opinion at deposition and attrial. Consistency often comes across as conviction and credibility to a layjury. The jury recognized not only theplaintiff’s inconsistency in position regarding causation, but also in the callous and absurd position taken by his chiropractic expert.

Informed consent. Most malpracticecases today are filed with an allegationthat the doctor did not provide informedconsent, and this is becoming an increasingly common contention. Doctorswould be wise to consult their state association to determine if they are meeting their state’s mandatory requirements for informed consent. Regardless, it’s a good tool to educate patients and confirm the discussion occurred.

Sufficient coverage. A doctor decideshow much insurance coverage to obtainbefore a lawsuit is even filed. However, thisamount becomes crucial when a case istried. If the case involves serious injury ordeath, especially of a young person or onewith financial dependents, the possibleverdict award quickly grows. This canmean exposure to the doctor. Also, somestate boards set minimum coverageamounts the doctor must maintain or besubject to disciplinary action.

What Can We Learn? cont.

EMPLOYEE SPOTLIGHT

www.ncmic.com

S P R I N G 2 0 1 4 | PA G E 6Examiner

Meet Emily BlairSay “hello” to Emily Blair who has been

helping doctors with their financing questionsfor over six years at NCMIC.

You’ll find Emily at various NCMIC shows,such as the Florida Chiropractic NationalConvention & Expo and the Parker SeminarsLas Vegas, working with doctors to find thebest equipment financing for their individualsituations.

Over the phone, Emily will review anylease or loan contract you’re considering andpoint out the potential pitfalls, such as hiddenfees or pre-payment penalties. She sharesher expertise to help doctors compare our contracts with others and understand the differences. While it’s not legaladvice, many doctors find Emily’s in-depth knowledge about standard financing contracts to be very beneficial.

Dr. Robert Garfinkel of Bellmore, New York, attests to this: “Emily helped meby doing a very unbiased comparison of financing digital X-ray equipment formy practice. She filled in all the blanks of the contract provisions beautifullyand went out of her way to find me the best financing, whether it was withNCMIC or not. In the end I chose NCMIC, and I know that Emily was a verystrong behind-the-scenes advocate for me. She loves helping chiropractors,and it really shows.”

In her spare time, Emily is a yoga aficionado. She teaches classes both ata Des Moines area fitness center, as well as a lunch-hour session for NCMICemployees. Emily finds yoga to be a great way to de-stress. “Yoga reminds usto appreciate the present. No use worrying about the past or the future whenthe only thing that matters is the breath we’re taking right now.”

NCMICINSURANCE COMPANY RISK MANAGEMENT

SEMINARS

for additional CE SEMINAR listings, see

EARN PREMIUM DISCOUNTS

March 29, 2014 Asheville, North Carolina Hosted by: North Carolina Chiropractic Association Speaker: Scott D. Banks, DC, MSTopic: Headaches (8 hours)To register: Contact NCCA at 919-832-0611

April 05, 2014 Des Moines, Iowa Hosted by: Iowa Chiropractic Society Speaker: Anna K. Allen, MSN, RN, CPHIT, CPEHRTopic: Communication, Abuse and Informed Consent

(4 hours)Speaker: K. Jeffrey Miller, DC, DABCOTopic: Technique (4 hours)To register: Contact ICS at 515-867-2800

April 12–April 13, 2014Jackson, Mississippi Hosted by: Mississippi Chiropractic AssociationSpeaker: David R. Seaman, DC, MS, DABCNTopic: Chronic Disease and Spinal Pain (12 hours)To register: Contact MCA at 601-276-3336

May 3–May 4, 2014Jackson Hole, Wyoming Hosted by: Wyoming Chiropractic Association Speaker: Elise G. Hewitt, DC, CST, DICCP, FICCTopic: Pediatrics (8 hours)To register: Contact WCA at 307-315-2265

May 3, 2014 Portsmouth, Virginia Hosted by: Unified Virginia Chiropractic Association Speaker: William E. Morgan, DC, DAAPM, FICCTopic: Management of Lumbar Disc Herniation

(8 hours)To register: Contact VCA at 540-932-3100

*Seminar discounts earned up to 30 days after the policy renewal date will apply immediately; those earned 30+ days afterthe renewal date will apply at the next policy renewal date.

Emily Blair, Account ManagerNCMIC Finance Company, Equipment Finance

With our policy, full-time D.C.s get a 5% discount (2.5% for part-time D.C.s)for three consecutive policy years for attending a qualifying 8-hour seminar.

See seminar listing at right.

RISK MANAGEMENT SEMINARS

Grow Your Revenue This SpringSpring is a great time to freshen up an old treatment room or increase patient counts (and revenue) with a brand new adjusting table. Let NCMIC help!

Now through May 30, take advantage of NCMIC’s Spring Table Financing Special:

• Payments as low as $84 per month

• No payments for up to 90 days

• No prepayment penalties—guaranteed!

• No down payment

• Purchase as many tables as you’d like

Minimum finance amount is $4,000 – maximum $25,000 per table. A one-time $75 documentation fee is required. Equipment financing is offered through NCMIC Finance Corporation and is subject to creditapproval. Consult your attorney or financial advisor for specific legal or tax advice before entering into any type of financing arrangement and for information on deduction eligibility and procedures. NCMIC Finance Corporation and the equipment vendor you select are separate companies, are not agents of one another, and have no authority to bind one another to financial or other contractual obligations.

Boost Your Tax SavingsAs you treat more patients with your new table, you’ll likely want to offsetsome of the added revenue it produces. Did you know your entire tablepurchase could be a tax deduction—even if it’s 100% financed?

Let’s say you’re in a 35% tax bracket and your table(s) cost $25,000.That could mean $8,750 of tax savings. You could save more on taxesthan you make in loan payments the entire first year! Be sure to ask your tax advisor if you qualify as deductions are subject to change.

www.ncmic.com/spring

This is a limited-time offer. Respond by May 30, 2014.

Table Cost Low Monthly Payment of:

$4,000 $84

$10,000 $210

$15,000 $315

$25,000 $525

Estimate based on a 60-month term and no paymentsfor 90 days. Looking to pay off sooner? No problem,with NCMIC’s Absolute & True No Prepayment Penalties®, you’ll never be penalized for early payoff.

with NCMIC’s Table Financing Special

LOWEST PAYMENTSEVER FROMNCMIC!

Jump-start patient counts & revenue with NCMIC’s Spring Table Financing Special.

or call, 1-800-396-7157, ext. 5080

S P R I N G 2 0 1 4 | PA G E 8Examiner

Hidden Risks with Community Events

Your community is hosting a large regional youth soccer tournament, and you have been invited to be onsite to support players throughout the event. This appears to be a great way for you to get involved with thecommunity and offers exposure for your practice and chiropracticthat will pay future dividends.

But, wait—Before you eagerlycommit to the event organizers, beaware that along with the benefitsof participating in communityevents comes risk.

The upside to participating inthese events is apparent. However,with all athletic events, such ascommunity runs and high school,collegiate or professional sportingevents, the risk of injury is present.Consequently, doctors providingcare must be prepared to recognizeand manage the risks prior to andduring the event for the well-beingof the participating athletes.

What’s more, if an injury occurs and a malpractice action results, themanner in which you prepared for and acted during the event come underintense scrutiny. The steps you took will impact your defense and ultimatelywill determine the outcome of your case.

Minimize Risks Through PreparationFollowing are tips to help you properly prepare to manage the risk of a

community event both for the athletes’ protection as well as your own:• Understand the chain of command and how to handle emergency

situations. Find out what protocols and procedures are in place if anemergency should arise. Also ask what communication tools are available to foster efficient responses as situations arise.

• Spell out expectations in writing. Roles and responsibilities of all onsite providers should be spelled out in writing with the event

Certain factors with community events can make youa target for malpractice risk.

Where Are You Taking Your Equipment?Many D.C.s participate in communityevents to promote their practice and thebenefits of chiropractic care. That maymean transporting equipment from theoffice to another location.

Is that equipment insured when it’s in transit or at another location?

In some cases, once your equipmentleaves your office, it’s not insured. Thisshould be a consideration for expensiveequipment (or if you’re transportingmultiple pieces of equipment).

At NCMIC Insurance Services, we workwith D.C.s every day and understand theunique situations you face. Just give usa call at 800-990-7002, ext. 8147 oremail us at agents@ncmic.com.

NCMIC Insurance Services is a licensed insurance agency. Insurance coverage is underwrittenthrough many of the nation’s leading insurance carriers. CA license #0B84564.

S P R I N G 2 0 1 4 | PA G E 9Examiner

organizers. Remember scope of practice issues when duties are beingassigned as many times event coordinators may not understand the chiropractic scope. Ask who is responsible for emergency services and first aid.

• Identify travel and treat issues. If the event is outside your state of licensure, you must address licensure and informed consent issues withthe licensing board of the state you will be visiting. Some states requirea temporary license or notice to be given to the board. Failure to complywith the requirements of states’ boards may result in allegations of practicing chiropractic without a license.

• Get your records in order. A plan is needed to address recordkeepingissues. While treatment at sporting events tends to be fast-paced, records are still needed to document your work with a patient. Be sure to address informed consent along with the necessary clinical documentation. Check with the event coordinators to review any forms

addressing consent to treat in the event of an emergency and liabilitywaivers. Any consent forms or waivers for minors should be signed bythe parent in the presence of someone at the event or school faculty tosafeguard against forgery. Processes must also be in place to archiveany records and forms created during the event.

• Remember the patient’s best interests come first. There may bepressure from the patient and others to expedite the treatment. Whetherit is the high school athlete anxious to get back in the game, their coachwho’s concerned about losing a key player for the rest of the game, or amarathoner set on finishing the run, your primary concern must be thepatient and how to best treat the injury.

• Address other considerations needed to prepare for the event: Review event promotion and signage. How are your services being

promoted and is the representation consistent with the state’s chiropractic scope?

Notify your malpractice carrier to ensure you have the proper coverage in place.

Understand the expected number of participants and ensure adequate staffing of health services.

While providing your services at sporting events offers great benefits,due diligence on your part to address inherent risks will benefit you and theparticipants you may treat.

These are all selected synonyms for “dividend” from thesaurus.com. Whether you consider the NCMIC premium dividend to be a bonus, payment, disbursement orsomething else, it’s just one of many reasons to be with NCMIC.

NCMIC chiropractic malpractice insurancepolicyholders will soon receive a premium dividend for the 18th year in a row. Though not guaranteed, we have returned money to our malpractice insurance policyholdersthrough a premium dividend every year since 1996.

Bonus ... Extra ... Reward.

How Do You Define

“Dividend”?

NFL 3658P

`div• i•dend(div i dend ) noun`

Keep in mind that while Good Samaritan laws vary bystate, they are only intended to protect doctors whorender true emergency care without remuneration.

Find answers to common questions about the NCMICpremium dividend at www.ncmic.com/dividend or scan:

S P R I N G 2 0 1 4 | PA G E 1 0Examiner

Avoid the Potential Pitfalls of Social MediaBy Jennifer Boyd Herlihy

With new technology on theincrease, many doctors are attempting to appropriately utilize social media as a way to communicate to patients andmarket their practices.

However, as an attorney who defends D.C.s regularly on behalf ofNCMIC, I know firsthand the legal risks of doing so. I’ve seen more of these cases lately, especially board complaints filed by patients whoalleged that doctors crossed the line. Consider the following scenarios:

Scenario 1:A D.C. posted pictures of herself wearing lingerie on a social media

website. On the site, she identified herself as a chiropractor, as well as the chiropractic college she attended. An anonymous complaint alleging inappropriate conduct was filed with the state board.

Scenario 2:A man filed a complaint with the state’s board of chiropractic against his

ex-wife’s D.C., alleging improper conduct by the doctor. He alleged that hiswife had an affair with the D.C. and the involvement was the reason for theirensuing divorce.

The husband attached the phone bill, documenting hundreds of texts between the doctor and his wife, many of which were sent during theweekend and as late as 2:00 a.m.

Fortunately for the D.C., the board gave him the benefit of the doubtwhen he submitted an affidavit stating that the female patient was just afriend who he was helping get through a divorce.

Scenario 3:After a D.C. gave her cell phone number and email address to all

patients, one patient began sending her inappropriate texts and postingsuggestive comments on the D.C.’s website. The patient had misconstruedthe D.C.’s intentions. Ultimately, the D.C. had to seek legal counsel and obtain a restraining order against the patient.

Anything you post,tweet or blog maycome back to haunt youand be used againstyou in the future.

8 More Ways to AvoidBoard Complaints

Every state has a licensing body that controls your ability to practice. You canfind yours at www.fclb.org. These licensingbodies govern “conduct unbecoming tothe profession,” which is up to the boardto define. Here are my top tips for avoidingcommon complaints, in addition to thosenoted for social media:

1. Avoid boundary violations. Many patient complaints center on perceptionsof inappropriate touching or innuendo. As for relationships with former patients,many states specify when these are permitted, if ever.

2. Heed patient complaints. Patient complaints are taken seriously. Good documentation is one way to demonstrate what was performed andwhat conversations occurred.

3. Take your continuing education credits in the timeframe required. Most licensing recertification applicationsmandate confirmation that you have metyour state’s requirements. Some stateswill randomly audit practitioners to confirm they took the courses.

4. Make sure your facility is compliant.Many states have specific guidelines ifyour practice group has more than onechiropractor or is affiliated with a healthclub or physical therapy group.

continued on page 11

S P R I N G 2 0 1 4 | PA G E 1 1Examiner

What do these scenarios show? If you’re involved in the social mediaworld, legal issues may affect you. Anything you post, tweet or blog maycome back to haunt you and be used against you in the future. There arenumerous companies that can retrieve past websites and find informationthat has been taken down. In other words, once something is put on a social media site, it will be available indefinitely.

That’s why it’s important to look at everything you do as if you were anincoming patient—and ask yourself: • Is it appropriate to the patient or does it send the wrong message? • Would the state board find it “unprofessional”?

When in doubt, leave it out! (In other words, do not do it.)

Regulatory ConsiderationsIt is important to remember that anything you say or write may be used

against you in court or in a board allegation. That’s why you should becareful about: Any guarantees on your website Statements about your method of practice Comments you make/images you show that could be used against

you in trial or in a board action:• Do you need to have a drink in your hand in photos?• What information are you putting out there about yourself?

Is it too much information? What is the title of the album or post?• Items you “like” or repost/retweet. Though doing so doesn’t

necessarily mean you endorse the content, it does make you appear that you approve of it. If you’re uncomfortable with whatyour online interaction will imply to others, don’t do it.

You must be especially careful to protect the confidentiality of patients.You should never use a patient’s name or likeness unless you have the person’s written authority. If you do not use the patient’s name but you provide information that allows others to determine the patient’s identify,there may still be a breach of confidentiality. For example, if a patient’sunique tattoo is apparent on your website, it would be a breach of confidentiality even if you didn’t identify the person by name or show his face.

Remember, make sure your social media sites are set to private andkeep your content and images on a professional level—even for those youhost individually. Social media is rarely completely private, and whateveryou post may become available for others to see indefinitely.

Jennifer Boyd Herlihy is a healthcare defense lawyer with the firm of Adler/Cohen/Harvey/Wakeman/Guekguezian, LLP, located in Boston, Mass., and Providence, R.I. She represents chiropractors and other healthcare providers in matters related to their professional licenses and malpractice actions. The firm’s website is www.adlercohen.com.

For Jennifer Boyd Herlihy’s full article, search on “How to Take the Anxiety Out of State Board Investigations” on www.ncmic.com.Or scan:

5. Watch your billing. If you do not completeyour own billing and instead provide asignature or signature stamp certifyingthe accuracy, review the bills for accuracyor at least perform a random audit. Thebiggest mistake seems to come with theinitial and re-evaluation codes, which are“complexity” based, not “time” based.

6. Obtain informed consent and document it. Most states require that youprovide the patient with information onthe risks and benefits of chiropractic carebefore initiating treatment.

7. Review recordkeeping and retention of records requirements so that youmeet any board-specific requirements.

8. Know if your board has specific requirements for therapeutic modalities. Also, make sure you complywith regulations for the employees permitted to perform these modalities, including radiology.

8 More Ways cont.

S P R I N G 2 0 1 4 | PA G E 1 2Examiner

Expanding Services? What D.C.s Must Consider By Carol Romano, Esq.

Numerous D.C.s are providing adjunct services in an effort to offer convenience to patients and to increase practice revenue. However, manyare not aware of statutes that regulate their practice.

Violations of such laws may result in fines or other penalties, particularlyfrom a state chiropractic board. Additionally, and perhaps more worrisome, is exposure to liability for negligence. Moreover, if the service in question is deemed to be outside the scope of chiropractic, liability insurance may not cover a lawsuit, putting the D.C.’s personal assets at risk.

Every state has statutes governing chiropractors, and they differ greatly.Forty-six states have statutory language that describes what the practice ofchiropractic encompasses. Most describe it as the diagnosis and treatment

of subluxations, vertebral or articulardysfunction or neuromuscular orskeletal disorders.

State Statutes Often OutdatedFor a variety of reasons, many

state statutes have not been updated in years and are often outdated. For example, treatment isdescribed as including adjustmentsor manipulation of the spine, anduse of complementary modalitiessuch as massage, acupuncture,heat, cold, mechanical stimulation,traction and the like. However, most

statutes do not list services that are outside the scope, such as nutritional counseling and the use of lasers. Therefore, if the descriptionsare taken literally, much of what chiropractors now offer patients may beconsidered a violation of state statute.

One example of D.C.s’ efforts to enlarge the scope of services is to offer patients nutritional advice or, more significant, sell them vitamins or supplements. The ACA’s Council on Nutrition encourages chiropractors to make patients more aware of how proper nutrition plays a vital role inoverall health, but warns of going beyond what is allowable by law.

In recent years, the Chiropractic Board of Clinical Nutrition (CBCN),working under the auspices of the National Board of Chiropractic Examiners(and with a liaison to the ACA), has developed a Diplomate examinationso that chiropractors can receive a board certification in nutrition, after completing 300 post-graduate hours of specialized education. The CBCN

As is the case with otherbusinesses, many

Doctors of Chiropractichave been expanding thescope of services andproducts they offer

patients. But there arerisks in doing so.

For a related casestudy, search “Doctors Seeking Opportunity” onwww.ncmic.com

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S P R I N G 2 0 1 4 | PA G E 1 3Examiner

had their first formal annual meeting in St. Louis in April of 2013, at whichtime they discussed, in part, the need for more Diplomate programs, so asto increase the profession’s awareness of nutrition, and to give it a “culturalauthority” in the field of nutrition.

Caution Advised, Even When CertifiedObtaining board certification in nutrition provides credence to a D.C.’s

advice and supports the sale of vitamins and supplements, but certificationdoes not supersede statutory authority. Even if a chiropractor does not wishto obtain Diplomate status, they should at the very least seek guidancefrom the ACA’s Council on Nutrition or from the CBCN before taking on thisendeavor. The Council on Nutrition advises that patients need a proper and complete nutritional workup and warns against reliance on applied kinesiology, hair testing and the danger of “experimental nutrition.” According to the Council on Nutrition, the prescribing of specific nutritionalsupplements for specific conditions can also constitute a statutory violation.

Another example of a potential violation for providing services outsidethe scope of practice is the use of Intense Pulse Light devices (IPL) forlaser hair removal and skin rejuvenation. These devices can cause severeand disfiguring injuries. Some chiropractors have touted the use of IPL aswithin the scope of chiropractic.

Most states that have encountered this issue have found that these procedures are invasive, and therefore can only be performed by personsspecifically trained and licensed to do so. New Jersey, Texas and Tennessee in particular, have specifically found the use of IPL to be outsidethe scope of chiropractic. In fact, many “med spa” services fall into a grayarea and every D.C. should check with their state board for an opinion before providing services that may be outside the scope of their practice.

Changing Environment Means More ChallengesAdvancements in technology over the past decade have led to the

creation of healthcare devices, nutritional supplements and other means of providing patients with care outside traditional chiropractic treatmentmodalities. Unfortunately, statutes remain dormant. This tension betweentechnological advancement and statutory inertia will create serious challenges to those who use these devices and services. That makes itwise to check with your state association attorney and board of examinersto obtain an opinion about any new process or procedure you’d like to implement in your practice.

Carol Romano, Esq., is currently the head of the medical malpractice section of Renaud Cook Drury Mesaros in Phoenix, Ariz.,where she is a partner/shareholder. She has 25 years of experience defending chiropractors and other healthcare providers in complex malpractice and wrongful death cases, and has achieved numerous defense verdicts in cases with multimillion dollar exposure.

WhenThere’sMore Than ChiropracticIf you offer more than chiropractic services as part of your practice, youmay need additional insurance coverage.This might include:

• Vitamins and supplements (original package or repackaged)

• Mattresses and pillows• Orthotics and heel lifts• Topical ointments and gels• Water purification systems• Weight management systems• Rehab programs and equipment• Exercise, Zumba, Yoga classes

Product liability insurance may be necessary to provide coverage if theproduct is defective or if it malfunctionsand causes injury.

Fitness center coverage may be necessary if a doctor/patient relationship doesn’t exist.

To find out more, contact an NCMIC agent at

agents@ncmic.com or 800-990-7002, ext. 8166.

NCMIC Insurance Services is a licensed insuranceagency. Insurance coverage is underwritten throughmany of the nation’s leading insurance carriers. CA license #0B84564.

S P R I N G 2 0 1 4 | PA G E 1 4Examiner

Rod Warren PresidentRoger L. Schluter Treasurer /

Assistant Corporate Secretary

Jacqueline Vice President, ComplianceAnderson Corporate SecretaryBruce Beal Vice President, ClaimsMatt Gustafson Chief Financial Officer

Assistant Vice Presidents:Barb Clark OperationsTraci Galligan Human ResourcesKeith Henaman ClaimsPaul Luckman Underwriting Mike Whitmer Corporate RelationsDavid Siebert Professional Liability

ProgramJoseph S. Soda Insurance ServicesCaren Whitney Customer Service

Examiner is published quarterly for policyholdersof NCMIC’s Malpractice Insurance Plan. Articlesmay not be reprinted, in part or in whole, withoutthe prior, express written consent of NCMIC. Information provided in the Examiner is offeredsolely for general information and educational purposes. It is not offered as, nor does it represent,legal advice. Neither does Examiner constitute aguideline, practice parameter or standard of care.You should not act or rely upon this informationwithout seeking the advice of an attorney. If thereis a discrepancy between Examiner and the policy,the policy will prevail.

“We Take Care of Our Own” is a registered service mark of NCMIC Group, Inc. and NCMIC Risk Retention Group, Inc.

Louis Sportelli, D.C., PresidentJohn J. DeMatte IV, D.C.Claire Johnson, D.C., MSEdMatthew H. Kowalski, D.C.Vincent P. Lucido, D.C.Mary Selly-Navarro, R.D., D.C.Marino R. Passero, D.C.Wayne C. Wolfson, D.C.

Also, serving on the NCMIC Risk Retention Group, Inc. board are: Louis Sportelli, D.C.; Wayne C. Wolfson, D.C.; Vincent P. Lucido, D.C.; Russel A. Young, Esq., Vermont Director; Patrick E. McNerney, Director; Roger L. Schlueter, Director; and Jacqueline Anderson, Director.

Examiner 2014Send inquiries, address changes,

and correspondence to:

NCMIC Examiner P.O. Box 9118, Des Moines, IA 50306-9118 1-800-769-2000, ext. 3945

examiner@ncmic.comSharon Houchin, Editor

NCMIC Insurance Company is a subsidiary of National Chiropractic Mutual Holding

National Chiropractic Mutual HoldingCompany Directors

WHAT’S NEW AT NCMIC AND IN CHIROPRACTIC

Reminder: ICD-10 Coming SoonThe deadline for mandatory implementation for ICD-10 is October 1, 2014. On this

date, the U.S. will implement the World Health Organization’s (WHO) mandate forthe clinical modification of diseases and morbidity classification. This is known asICD-10-CM. Due to the conversion, doctors will need to modify the way they collectpatient data and document visits in their charts. “Specificity” is the word most oftenassociated with ICD-10 documentation, and doctors will be required to collect moreinformation in more detail to select the right ICD-10 code for a symptom or condition.Therefore, the code you use on the claim form must be substantiated, documented andreported to the highest degree of specificity. In fact, because of this specificity, thenumber of codes has risen dramatically. For example, most chiropractors routinely usebetween 35-60 codes. Under the new system of ICD-10, D.C.s are likely to ultimatelyuse about 200 codes. For more information go to www.ncmic.com/prc/blog/office-staff/icd-10-important-details.aspx.

Professor Pranlal Manga Receives NCMIC Foundation Recognition

On September 27, 2013, at the Canadian Chiropractic Research Symposium, theNCMIC Foundation provided Professor Pranlal Manga, PhD., M.S., with an award ofrecognition for his outstanding scientific contributions to health economics research.Professor Manga was selected for this recognition not only for advancing the chiropractic profession but also for enlightening the entire world about the importance of recognizing that integration of cost-benefit and cost-effectiveness are critical to thesustainability of the healthcare system.

Professor Manga’s interests are health economics, health policy, ethics in healthcare, international health, pharmaceutical and medical technology, and economic development of Third-World countries. He has published 28 monographs and over 90articles, and has also contributed to numerous government reports in the areas ofhealth insurance, intergovernmental fiscal relations, international health, manpowerpolicies, and has submitted briefs to nine commissions of inquiry on health care issues in Canada.

Professor Manga is currently working on a book on the integration of chiropractictreatment into the larger healthcare system. He has served as a consultant to a widerange of private sector organizations, the Canadian government, foreign governmentsand international organizations in matters of healthcare financing and insurance,health policy, and healthcare management and administration. He has also offeredspecial seminars in program evaluation, cost-benefit and cost-effectiveness analysisand taught executive level courses in applied economics in Canada and abroad including India, China, Hong Kong, and Africa.

Dr. Manga’s understanding of the global impact of economics, health policy andethics in healthcare delivery has truly created an awareness of these critical components around the world.

For more information about the NCMIC Foundation, please email rphillips@ncmicfoundation.org.

©2014 NCMIC

NCMIC Insurance Services is a licensed insurance agency. California license #0B84564. IA License #2002515.

Coverage under the D.C. Long Term Disability Insurance Plan is issued by The Prudential Insurance Company of America,751 Broad Street, Newark, NJ 07102-3777. Please refer to your certificate for Plan details, including any exclusions, limita-tions and restrictions which may apply. Contract series 83500. This plan is not available in Alaska or Washington.

This policy provides disability income insurance only. It does NOT provide basic hospital, basic medical or major medical insurance as defined by the New YorkDepartment of Financial Services. North Carolina residents: THIS IS NOT a MEDICARE SUPPLEMENT PLAN. If you are eligible for Medicare, reviewthe Guide to Health Insurance for People with Medicare, which is available from the company.

0252987 0252987-00002-00

Call NCMIC Insurance Services, the exclusive agent, today:

1-800-769-2000, ext. 8150.or visit www.ncmic.com/ltddetails

When a disability prevented Jay Ernst, D.C., from practicing in 2012,he was thankful he received monthly benefits from the D.C. Long TermDisability Insurance Plan.

Without them, he would have had to make some tough financial decisions.

If you suffer a disability, how long could you pay all your current bills and expenses, extra medical costs, and more WITHOUT YOUR INCOME?

Luckily, there is help for Doctors of Chiropractic—the D.C. Long Term Disability Insurance Plan.

This important protection pays monthly benefits in the event of a disabling illness or injury. It’s moneythat will help cover your regular—and disability-related—expenses.

And, while many plans are not even available to D.C.s, the D.C. Long Term Disability Insurance Plan includes benefits specifically geared to your unique needs.

Make sure you have a backup plan. Call today to learn more about the D.C. Long Term Disability Insurance Plan, sponsored by the National Business Association for Chiropractors (NBAC).

I’d be downsizing, I’d be selling . . . so many different things would have happened without the disability insurance.

I hate to even think about it because it’s so scary.

Take it from Dr. Ernst,“You can lose every-

thing without a backup plan if you can’t work.”

Jay Ernst, D.C.Shawnee, OK

©2013 NIS NFL 8150-132510

YOUR QUESTIONS

S P R I N G 2 0 1 4 | PA G E 1 6Examiner

Am I Still Covered if My Practice is Incorporated?

In your situation, let’s say your CA is accused of injuring a patient during a treatment modality and the patient files alawsuit naming just your corporation. Because you corporationis vicariously liable for the actions of your staff, you would need

entity coverage in place to protect the practice against this claim.Another situation where this could come into play would be if your

practice pursues a collection action against a patient, and the disgruntledpatient files a counter-claim against the clinic alleging some sort of malpractice. If your corporation is named in the counter-claim, you wouldneed entity coverage in place to protect the practice against this claim.

While incorporating can affect your coverage, the good news is NCMICoffers a shared limits of liability entity coverage option at no additional premium. So, as the owner of a chiropractic entity, e.g., an LLC , partnership, corporation or other, you can share your limits of liability with your practice entity for no additional charge.

Many doctors don’t realize that merely forming a separate entity puts thepractice itself at risk for being sued. Even as a sole practitioner your clinicmay be named in a malpractice action if it is set up as a separate entity.

Plaintiff attorneys have access to various resources, such as Secretaryof State websites, which can be used to query for entities associated withyou and your practice. It is likely that if an entity is found it will be named in any malpractice lawsuit that is filed. If your entity is not named on yourpolicy, NCMIC would not be obligated to provide a defense for the entity.This could potentially cost you thousands of dollars.

To better protect you and your practice please contact NCMIC today at 1-800-247-8043. We will review your policy, analyze your situation and explain your options. The application for professional entity coverage is also available by logging in to the “My NCMIC Login” section ofwww.ncmic.com and clicking on the “Manage Your Policy” tab.

I am a D.C. with two employees—an administrative assistant

and a CA—on staff. My accountant recently advised me to

incorporate for tax purposes. Will incorporating affect my

malpractice insurance with NCMIC in any way? Do I need to

purchase additional coverage?

In some situations, separate limits of liability for the entity may be beneficial. For example, separate entity limits may better protect youagainst claims of vicarious liabilitythat arise from professional servicesprovided in your clinic by licensedchiropractors not insured by NCMIC,massage therapists, physical therapists, or other unlicensed ancillary personnel. Separate limitoptions are also available for entitiesthat employ M.D.s and D.O.s.

For separate limits of liability, an additional premium applies. CallNCMIC at 1-800-247-8043 for more information.

Separate Limits OfferMore Coverage

The Benefit D.C.s Rely on to Avoid Claims

Worried about a touchy situation?Just need advice? Call NCMIC’s confidential Claims Advice Hotline at 1-800-242-4052 to talk with aprofessional claims representativeabout any concern or situationyou’re not sure how to handle.

See Q & A for an example of howNCMIC’s Claims Advice Hotline has helped D.C.s like you.