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My chiropractic
legal case as detailed in this section should not be relied
on and professional advice must always be sought for any victims
considering litigation or damages.
Mrs
Frances Denoon
The
following section details the legal
process I undertook during the three years post chiropractic
injury in March 1998.There are 4 volumes of files and cannot
get all of it here. So I have written it in layman's terms
only
Following a period of
recovery after my injury, I appointed a respected Solicitors -Withy King from
Bath to advise and investigate my case to see if there was a case of negligence
to answer.
The British
Chiropractic Council (BCA)
At the time of my Injury
"registered Chiropractors" had affiliation with the British
Chiropractic Council (BCA) as the General Chiropractic Council (GCC) did not
have any powers until 1999. Registered Chiropractors in 1998 had only a voluntary
code to work under. (this has been significantly altered by the GCC who now
should enforce a mandatory code of conduct.) I did make a complaint about my
treatment to the BCA, and their reply is available using the link below.
Letter
from British chiropractic Association November 2000
Write down what
happened to you.
The fist step was to
ensure that I fully recorded everything i remember before the injury sustained
on a very detailed manner almost minute by minute. Memory fades quickly after
trauma , however I was lucky as I had very good recall.
Keep a diary and log of
all you spend
This would be important if
you succeeded in damages and you can then easily discuss your expenditures, like
trips to hospital, drugs, clothing, even carers cost during recovery.
Medical records.
it was important to obtain
the medical records both my General Practitioners records and all my hospital
treatment which would be used by Medical and other experts looking at my case.
The Chiropractor records would also be requested. This took some time , however
the Chiropractic records took a significant time as the Chiropractor had left
the UK and hence took some time to acquire.
note: I was going to
publish the records here as a link. However I have not done so as I feel that
record keeping by Chiropractors since my injury in 1998 may have improved.
(pending research)
Causation
and Negligence - "prove it or loose it"
Causation : It had to demonstrated
beyond all reasonable doubt that the injury (vertebral Artery Dissection) was
caused by the Chiropractic Manipulation.
The specialists and
doctors treating my condition taking into account no other health problems or
pre-indications that I had a torn artery, concluded that the Chiropractic
Manipulation was the causation to my injury. The hospital dischagre summary can
be read using the link.
Hospital
Discharge Summary Page 1 only
It was never denied that my injury was with all reasonable assertion, caused
by the Chiropractic Manipulation, remember, that I had immediate sever symptoms
seconds after the 'treatment'. So, legally I had passed this doctrine of proof.
Negligence : To prove negligence of the
Chiropractor, I had to demonstrate that the practioner acted in such a manner
that it fell below the standard of care followed by his peers (other
Chiropractors). To prove he had acted in such a away, I was advised by my Lawyer
to engage a senior Chiropractor with skills in preparing medico-legal reports
for potential use in court. The reasoning for using a senior Chiropractor is
that the defending side (the Chiropractors Insurance company Lawyers) will
without doubt obtain a medico-legal report with (quite probably) opposing views.
So who wins in that battle?. Generally, the more senior report-writer - seems to
be common sense.
So , I apppointed Haymo Thiel DC, MSc (Ortho), PhD, DipMedEd . Haymo Thiel is
Vice-Principal and Associate Professor at the Anglo-European College of
Chiropractic. His research interests are on the subjects of patient safety
incident reporting, clinical risk management and treatment outcomes related to
manual therapies of the cervical spine. Pretty senior guy, so if his felt my
treatment was negligent, then he was unlikely to be challenged.
He final report concluded no negligence based on a detailed review of my
injuries, the written evidence and from my personal testimony during a meeting
with him. He was looking for what he calls
"Red"
and "Yellow"
flags ie signals in my treatment process that show the Chiropractor acting
outside normal practice or failing to meet acceptable standards.
Sure I had a few of each red and yellows and oops forgot to tell him how
painfull the treatment was and oops he never asked. Bear in mind I had a stroke
- your brain never works 100% again. So the final report said my treatment was
not negligent. This rather put my claim in a weak place. Sure I could of got
another report, but it was unlikely to further my case unless the report writer
was more senior again!.
Bolam's Principle - "you need to read this five times to understand it"
(unless your a lawyer)
The laymen might think, well go and see a Neuro-Specialist or a Neck-Surgeon
and see what report they come up with. No good I am afraid, because in the UK we
have the establish principle of : "Bolams Principle". What is Bolams Principle?
- well in 1957 a legal case set a precedence that it may be formulated as
a rule that a medical practioner is not negligent if he acts in
accordance with a practice accepted at the time as proper by a responsible body
of medical opinion, even though other medical reactionary's adopt a different
practice. In short, the law imposes a duty of care, but leaves it to the
reasonable judgement of medical professionals to determine what is an acceptable
practice.
So Chiropractic Peers can review Chiropractors and so on. Other medical
professionals opinion does not carry as much weight. So for example a Professor
in Vascular Neck Surgery's (if he thought my treatment was negligent) report
would be of no use as he does not work in the field of Chiropractic and would
not be considered. So if your a cynic, it could be argued that such a principle
can lead to professionals "closing ranks" or protecting their profession against
bad publicity such as medical negligence cases.
Click
here for a link on more on the Bolam Test
Informed Consent " don't bother , you don't need to know anything"
We also looked at consent. Did I consent to this type of treatment, Did I
know what was going to happen?, Did they tell me the risks NO, should they
have?, is walking in the Chiropractors door consent to treatment?. The legal
avenue was explored and had some merit in my case in that consent could have
been argued and not obtained.
However, it was and still can be defeated in that Chiropractors don't have to
tell you the risks for you to make an informed choice. Have you ever had an
operation or treatment in hospital, do they get you to sign forms?- Yes, do they
tell you the gory risks - Yes. Do Chiropractors - generally No and they don't
need to (although their Code of Practice does say they should). Why don't they?
- because they argue the risks of neck manipulation are no greater than going to
have your hair washed at a salon. Oh - well that's ok then, no need to panic and
stress the poor patient that maybe 1 in a million people may be injured.
I actually sort of agree. One in a Million is very low risk, not worthy of
debate really. Hang on - who says it's one in a million? oh Chiropractors
ah I see. What do others say 1 in 10,000, or 1 in 100,000. Ah.. bit different
then, what is the REAL incidence??. Well no one really knows, this is much
debated in Chiropractic (sorry no they don't debate it), it is much debated in
medicine by those who feel that the statistics are not known and some fear one
in a million is way of the real mark.
So Informed Consent was looking poor as a legal argument as Chiropractor
after Chiropractor for the defence could be wheeled into court and say " we
don't tell patients risks because there are none" .. oh dear case dismissed I
feared.
So - without a report concluding negligence, my only options where as
follows:-
1. Drop the claim ( preferred by my lawyer)
2. Obtain another report ( more money)
3. Take the case to court (lawyer said it would be a UK test case, get ready
to sell your home - the lawyer didn't say that, just it could costs tens of
thousands of pounds)
4. Concentrate on rehabilitation, start a website and campaign for public
awareness of the dangers of neck manipulation.
I chose option 4.
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