Staying cool, calm and collected in a sticky situation

By Nevena Brown and Claudine Watson-Kyme, Meridian Lawyers – on behalf of Guild Insurance

You adjust the thoracic spine of a client and hear an abnormal “thud”. The client indicates immediate pain in the area you just attempted to adjust. Your immediate thought process is “have I just broken a rib?” or “I think I just broke a rib”. How are you best to respond in this situation?

Fracturing a rib during a chiropractic adjustment is fortunately, a rare but certainly not unheard of complication of treatment. The description of an “abnormal thud” and the report of immediate pain should raise a red flag for practitioners.

What should I say to the patient?

If you consider that you may have caused an injury, in the interests of open disclosure and maintaining your relationship with your patient, you must notify your patient in a calm, sympathetic and professional manner. It is not necessary nor is it appropriate to state that you have fractured a rib but it is appropriate to say that you would like to investigate the complaint of pain further and to cease treatment until the investigation is complete. You may at this point use clinical assessments to try and assess the situation, such as a tuning fork test.

It is important that you do not make any admission as to responsibility for the possible injury until a diagnosis has been confirmed.

Do not offer compensation or mention your insurance cover as this may encourage pursuit of a claim.

Should I refer for x-rays?

If your thought process is that a fracture is a possibility, it would certainly be prudent to refer your patient for x-rays to assist in excluding or confirming your provisional diagnosis and then refer for further investigation if indicated. Depending on the age and health of the patient, as you know a rib fracture caused by relatively gentle therapy may be indicative of something more sinister.

Referral will also allow some “breathing space” to notify your professional indemnity insurer and obtain legal advice.

Should I notify my professional indemnity insurer?

Many professional indemnity policies and certainly the Guild Insurance policies require that the policy holder notifies the insurer on becoming aware of circumstances which may lead to a claim. A possible fracture resulting from chiropractic treatment would be considered such a circumstance.

If you are insured with Guild Insurance, you have access to support from Meridian Lawyers and a solicitor will contact you to provide advice and discuss an appropriate strategy.  

Can I say sorry?

It must be understood that even if the diagnosis is confirmed, this does not automatically mean that the practitioner is negligent and obliged to pay any compensation for the fracture. It is, however, appropriate to convey an apology to the patient.

There is a difference between an apology and an admission of liability or responsibility. Historically, there has been a reluctance to offer an apology to a patient on the basis that it may be misconstrued as an admission of guilt and possibly jeopardise the cover provided by a professional indemnity insurer.

Legal reform in Australia has helped bring an end to that tension by introducing legislation which provides that an apology is not an admission of liability.

The effect of an apology should not be underestimated. It is the experience of Guild Insurance and Meridian Lawyers that many civil claims for damages would not eventuate if a carefully worded, timely and sincere apology had been provided to a patient. Very often a patient may simply feel wronged and want acknowledgement and if they are ignored they will often take matters further.

A further reason to make an apology is that regulatory bodies tend to place weight on an apology when determining the outcome of a disciplinary matter.

Can I charge for the consultation?

This is really an individual decision by the practitioner in consultation with the patient. There is no hard and fast rule and you should use your own judgment or discuss the matter with the insurer or legal representative.

If you strongly suspect you have caused a fracture or some other injury during the treatment and your patient is distressed or agitated, seeking payment at the time may not be appropriate and may inflame the situation.

Should I offer free care?

Once again, this is a matter of judgment taking into consideration the individual circumstances and your legal representative will be able to advise you if this is appropriate.

Nevena Brown, Principal, Meridian Lawyers and Claudine Watson-Kyme, Solicitor, Meridian Lawyers, provide legal advice and defence to chiropractors on behalf of Guild Insurance. Guild Insurance clients have access to legal advice through in the event of a potential claim, so if an incident occurs in your practice contact Guild Insurance immediately on 1800 810 213.