Case Results
Gordon & Silber Obtains Affirmance of Summary Judgment for Client Chiropractor Alleged to Have Caused Client's Carotid Artery Dissection — May 2009.
Type of Case: Chiropractor Malpractice — Negligent Adjustment After Plaintiff was Injured in Assault.
Venue: Appellate Division, Second Department.
Background Facts: After being a victim of an assault, plaintiff was admitted to the defendant hospital where she was discharged after a normal CT scan, although she still exhibited some weakness on the right side of her face. A few days later, she was seen by our client, a chiropractor, who had been treating her for pre-existing TMJ. A few days after, she returned to the hospital and was diagnosed with traumatic carotid artery dissection.
The defendant hospital and attending neurologists commenced a third-party action against our client claiming he had caused the plaintiff's carotid artery dissection by manipulating her spine and neck only days after she had suffered head trauma, and that performing the manipulations was, under the circumstances, a departure from good and accepted chiropractic practice.
Our Strategy: We moved for summary judgment dismissing the third-party complaint on the grounds that our client had not performed the alleged manipulations. In support, we submitted evidence including our client's chart, as well as testimony from the plaintiff's parents and our client denying he had performed any manipulation to her spine or neck after the assault.
Special Problems: The third-party plaintiffs attempted to defeat summary judgment by pointing to the fact that our client had made several post claim additions to his treatment records. Notwithstanding that such additions merely emphasized that he had not performed the manipulations, they argued that they raised an issue of fact as to whether he had performed those procedures.
Result: The trial court accepted third-party plaintiff's "consciousness of guilt" argument and found that issues of fact existed as to whether manipulations were performed. It nonetheless granted our client summary judgment based on the lack of evidence that he knew or should have known that the plaintiff had a pre-existing injury from the assault that would have made spinal manipulations contraindicated. On appeal, the Appellate Division affirmed the dismissal on the grounds argued by us in our initial motion. In doing so it rejected the trial court's finding that the chiropractor's additions to his records created an issue of fact as to whether the manipulations were performed. This decision has ramifications for future cases where additions are made to medical records but the "additions . . . d[o] not contradict [] earlier entries."
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