Failure to Refer Non-Compliant Patient Impacts Case

Sam Jones was a 48-year-old roofer who weighed 250 pounds when he first sought the care of Evan Dalke, ND, in 2005. On the intake forms, Sam indicated he was experiencing low back pain that radiated into both legs, as well as his feet.

After taking a complete history, which revealed nothing out of the ordinary, and completing an exam, Dr. Dalke decided to proceed with naturopathic care without ordering X-rays or conducting additional testing.

Dr. Dalke recommended a dietary supplement that contained Bromelain, Boswellia herb, and Turmeric extract to reduce inflammation. He also used an herbal tincture that included Valerian extract and white willow bark extract to relieve muscle spasm and decrease pain.

Sam reported that his pain appeared to have lessened after receiving this treatment, so Dr. Dalke asked Sam to schedule three appointments for the following week as part of a course of naturopathic care. However, Sam did not make these appointments, saying he would “check his schedule and call back later.”

Fast forward three years to March 2008 ... Sam finally returned to see Dr. Dalke for a second time. Sam reported low back pain radiating into his legs and feet similar to the discomfort he had experienced three years prior. He said the pain started shortly before his appointments, but he didn’t know exactly what movements or activity brought it on. He had stayed on the supplements for 3 months and then didn’t seem to need them anymore.

Sam continued to see Dr. Dalke for naturopathic care, which included hydrotherapy and homeopathic treatments, on and off from 2008 through 2013. Sam’s treatment was intermittent in nature because he didn’t see the need for a regular course of naturopathic care. According to Sam, Dr. Dalke’s treatments helped the pain subside, and that was good enough for him. Dr. Dalke saw Sam a total of 33 times between 2008 and 2013, whenever his back pain worsened.

The naturopathic care on each occasion continued to include hydrotherapy and homeopathy. Dr. Dalke also used heating pads and ultrasound on Sam each time he was treated. Sam denied seeking care from any other healthcare provider from 2008 to 2013, other than seeing his internist to manage his hypertension and to be put on a weight-loss program.

Patient Seeks Care with Another ND

Sam did eventually see another ND when Dr. Dalke went on vacation in August 2013. Now 56 years old, Sam’s back pain had flared up, and he didn’t want to wait until Dr. Dalke returned. So, he went to see another naturopath, Dr. Nicholas Bill.

At Sam’s first visit with Dr. Bill, the ND provided care similar to that given by Dr. Dalke previously. Dr. Bill continued to treat Sam in a similar manner for 4-5 visits.

However, when Sam’s symptoms persisted, Dr. Bill referred him for an MRI to rule out a disc herniation or a tumor. Unfortunately, the results of the MRI studies revealed a tumor that required immediate care, and Dr. Bill referred Sam to a surgeon.

By the time Sam met with the surgeon a month later, he was having difficulty walking due to severe back pain. Sam described the pain as excruciating, but he told the surgeon he was not experiencing any problems with urinary or bowel functions.

After further MRI and CT scan studies were done at the hospital, the surgeon informed Sam he had an osteoblastoma in the spinal cord. This tumor extended down the spinal cord into the scrotum, and surgery would be needed. Sam was advised that a known risk of this surgery is loss of bowel and bladder function. However, without surgery the tumor would cause paralysis, or eventually, death. Feeling he had no good options, Sam consented to the surgery.

Surgery Mostly a Success

The surgery took place two weeks later, and it was considered a success. The surgeon was able to remove most of the growth, and the tumor was found to be nonmalignant. The portion that remained, however, was located around the scrotum area. After surgery, Sam was informed that the tumor had existed for approximately 10 years.

After recovering to the extent possible, Sam lacked sensation from his waist through his toes on his right side and continued to experience several health problems. He had constant urinary tract infections, felt pain and tightness in his left and right hamstrings, and was unable to control his bladder—he now had to use a catheter several times daily.

If that wasn’t bad enough, Sam had to manually induce his bowel movements, lost sexual function, walked with a limp and was unable to ambulate for long distances.

Sam Jones Initiates a Lawsuit

Believing the ND was to blame for his constellation of problems, Sam Jones decided to sue Dr. Dalke. The lawsuit alleged Dr. Dalke should have referred Sam Jones for further testing and that he failed to diagnose Sam’s tumor.

At this point, the NCMIC defense team met to assess the case. The team reviewed Dr. Dalke’s clinical records to determine if the allegations could be countered by proving that the proper steps had been taken, given the patient’s complaints and presentation. Unfortunately, the records were sparse, so a well-respected naturopath in the field was retained to weigh in on the matter.

The expert consultant reviewed the care rendered by Dr. Dalke. He was lukewarm at best due to Dr. Dalke’s management of Sam Jones’ care. The naturopathic expert consultant felt that this case would be difficult to defend for the following reasons:

While he didn’t think it was a breach of the naturopathic standard of care to fail to order an X-ray when Sam presented in March 2008, Dr. Dalke’s failure to refer for imaging during the 5 years Sam received naturopathic care from him was inexcusable.

The expert consultant also opined that the persistent low back condition, even though treatment was rendered intermittently and was met with some success, should have been followed up with referral or further testing to determine the source of the symptoms.

Dr. Dalke’s records did not reveal repeated evidence of exacerbation due to trauma. Therefore, this expert felt that Dr. Dalke’s level of suspicion regarding the source of the symptoms should have been heightened and should have led Dr. Dalke to seek further testing.

Impact of Policy Limits

Another factor in the case was that Dr. Dalke carried policy limits of only $100,000, which could leave his personal assets exposed in the event of a judgment in excess of $100,000. The potential for this escalated when the NCMIC-assigned defense attorney estimated the potential damages Dr. Dalke could face if the case went to trial. Among other things, these included:

  • $64,867 for past medical expenses
  • $55,000 for future medical expenses
  • $123,000 for past wage losses
  • $315,000 for future wage losses
  • $500,000 for pain and suffering
  • $200,000 for loss of consortium

What’s more, Dr. Dalke’s low policy limits would restrict the doctor’s options because there would be less room for negotiation and a compromise settlement.

Settlement Pursued

Considering the inadequate documentation, the less-than-supportive opinions from the naturopathic expert and concern that a judgment could exceed his policy limits, Dr. Dalke agreed to attempt to settle the case.

After several days of going back and forth with Sam Jones’ attorney, the case was settled for below Dr. Dalke’s policy limits. NCMIC spent close to $45,000 to defend the case.

What Can We Learn?

It is obvious that Sam Jones was not a very compliant patient. However, the responsibility of ensuring proper care is still the obligation of the licensed healthcare provider.

Red Flags
When a doctor sees a patient with “pain radiating into both legs and feet,” it should be a red flag of a potentially serious condition—no different than “weight loss and thirst” would prompt a clinical suspicion of diabetes. Physicians who see patients with these symptoms should be triggered to consider additional diagnostic testing. In this case, had additional testing been performed, the patient’s outcome might have been different.

Cooperation and Consultation
While he was being treated by Dr. Dalke, Sam Jones also was being seen by his internist for hypertension and weight loss. Ideally, Dr. Dalke would have had a working relationship with this physician. Regardless, he could have called the internist to discuss their mutual patient. Such a call might have generated a discussion about the patient’s symptoms and his reluctance to comply that would have elicited further testing.

While the clinical perspective on whether films are needed for every patient has changed considerably over the past decade, there are still times when a doctor must consider additional diagnostic evaluation. In this case, Sam Jones’ weight, age, symptoms, non-compliance and type of occupation all should have been indicators of the need for further evaluation.

Low Policy Limits
Review your policy regularly and select limits that not only protect your patients but also yourself in the event of a malpractice allegation. In this case, the doctor had very low limits of coverage that left his assets exposed and restricted his options. His low policy limits left less room for negotiation or a compromise settlement.

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ND Insights is published for NCMIC policyholders. Articles may not be reprinted, in part or in whole, without the prior, express consent of NCMIC. Information provided in ND Insights is offered solely for general information and educational purposes. Names and events are created for illustrative purposes only. It is not offered as, nor does it constitute, legal advice or opinion. You should not act or rely upon this information without seeking the advice of an attorney.

Contributing Advisor–Fraser Smith, ND