Collins v. Juergens Chiropractic, PLLC

• Decision Date: 08 July 2020
• Docket Number: No. 52552-6-II,52552-6-II
• Citation: 467 P.3d 126,13 Wash.App.2d 782
• Court: Washington Court of Appeals
• Parties: Thomas P. COLLINS, Appellant, v. JUERGENS CHIROPRACTIC, PLLC; and Chris J. Juergens, D.C., Respondents.

13 Wash.App.2d 782

467 P.3d 126

Thomas P. COLLINS, Appellant,

v.JUERGENS CHIROPRACTIC, PLLC; and Chris J. Juergens, D.C., Respondents.

No. 52552-6-II

Court of Appeals of Washington, Division 2.

Filed July 8, 2020

Daniel Lee Hannula, John Ross Wilson, Rush Hannula Harkins & Kyler LLP, 4701 S 19th St. Ste. 300, Tacoma, WA, 98405-1199, Timothy R. Gosselin, Gosselin Law Office PLLC, 1901 Jefferson Ave. Ste. 304, Tacoma, WA, 98402-1611, for Appellant.

Eron Zachary Cannon, Fain Anderson Vanderhoef, Et Al, Mark Brandon Melter, Fain Anderson Vanderhoef Rosendahl, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, for Respondents.

PUBLISHED OPINION

Maxa, J. ¶1 Thomas Collins appeals the trial court's dismissal on summary judgment of a lawsuit he filed against Chris Juergens, D.C. and Juergens Chiropractic, PLLC (collectively, Dr. Juergens). Dr. Juergens performed a chiropractic manipulation

on Collins's neck, which caused a vertebral artery dissection and resulted in a stroke. Collins argues that Dr. Juergens was negligent in failing to conduct a proper pretreatment work-up before performing the manipulation and that Dr. Juergens failed to obtain informed consent because he did not advise Collins that the manipulation could cause a stroke.

¶2 We hold that (1) the trial court did not err in dismissing Collins's medical negligence claim because he failed to create a genuine issue of material fact on whether the failure to conduct a pretreatment work-up was the proximate cause of his injury, and (2) the trial court erred in dismissing Collins's lack of informed consent claim because there are genuine issues of material fact regarding the materiality of the risk of stroke and whether a reasonable person in his position would not have consented to a neck manipulation if informed of the risk.

¶3 Accordingly, we affirm the trial court's grant of summary judgment in favor of Dr. Juergens on Collins's medical negligence claim, reverse the trial court's grant of summary judgment in favor of Dr. Juergens on Collins's lack of informed consent claim, and remand for further proceedings.

FACTS

Prior Chiropractic Treatment

¶4 In 2003, Collins sought chiropractic care from Dr. Paul Randall because of shoulder and arm pain. Over the next 10 years Collins, received treatment from Dr. Randall 194 times. Approximately 40 to 50 treatments involved manual neck adjustments. On the first visit, Dr. Randall conducted a physical examination and took x-rays of Collins's neck. But he did not conduct any detailed physical examination in subsequent visits.

¶5 Before receiving any treatment from Dr. Randall, Collins signed a form entitled, "Consent to Treatment, Release of Information and Insurance needs." Clerk's Papers (CP) at 252. The form provided the following information about the risks of chiropractic treatment

I understand that Chiropractic treatments are usually painless and that those treatments are what will be primarily used for care. I am also aware that it is possible for an occasional treatment to hurt momentarily and/or that a temporary increase in my symptom or symptoms may occur as a result of the adjustment.

CP at 252. The form did not mention anything about the risk of vascular injury

or stroke.

Dr. Juergens's Treatment and Collins's Injury

¶6 In 2013, Dr. Juergens took over Dr. Randall's practice. Dr. Juergens treated Collins three times in total. In June 2013, Dr. Juergens treated Collins with lumbar spine adjustments on two occasions. Dr. Juergens treated Collins again on January 28, 2014.

¶7 Dr. Juergens did not take Collins's main complaint history, perform a comprehensive physical examination with x-rays, discuss the risk of treatment or alternative procedures, or have Collins sign an informed consent form at any of Collins's visits. And Dr. Juergens did not screen Collins to determine whether Collins was at risk for vascular injury

, including stroke. The only informed consent form Dr. Juergens had on file for Collins was his 2003 form.

¶8 On the January 28 visit, Collins reported recurring pain in his left shoulder and arm extending down into his index finger. Dr. Juergens had Collins lie face down on the table while he applied an activator, an instrument used to create biomechanical motion, to both sides of Collins's neck. Dr. Juergens then had Collins lie on his back and picked up his head. Dr. Juergens performed a cervical manipulation on Collins's neck, twisting it up and to the right and up and to the left. Collins heard a crunching sound during these maneuvers and felt some pain.

¶9 After being treated by Dr. Juergens, Collins sought care from his primary care physician, Dr. Gerald Faye. Dr. Faye diagnosed Collins as having a stroke

incident to his recent chiropractic manipulation. An MRI revealed that Collins had a vertebral dissection between the first and second vertebrae. Dr. Maria Ramneantu, a neurologist, diagnosed Collins as having a left cerebellar stroke caused by his recent chiropractic adjustment.

¶10 Collins filed a lawsuit against Dr. Juergens and Juergens Chiropractic, PLLC in which he alleged that Dr. Juergens's manipulation of his neck during the January 28, 2014 visit caused his stroke

and resulting injuries. The complaint also alleged that he had suffered damages as a result of Dr. Juergens's negligence.

Summary Judgment Motion

¶11 Dr. Juergens moved for summary judgment on liability regarding medical negligence and informed consent. He argued that Collins had failed to establish through expert testimony that Dr. Juergens's alleged breach of the standard of care during his treatment of Collins proximately caused Collins's injuries or that Dr. Juergens failed to inform Collins of a material fact relating to his treatment.

¶12 In opposition, Collins submitted declarations from Alan Bragman, D.C., a chiropractic expert¹ , and Dr. James McDowell, a neurologic expert. Both Dr. Bragman and Dr. McDowell provided expert testimony that the cause of Collins's stroke

was Juergens's cervical manipulation. Dr. Bragman stated that Dr. Juergens's breach of the standard of care was "failing to take an adequate history, failing to undertake appropriate physical examinations and failing to establish a clinical basis for care" before performing the manipulation. CP at 138. However, Dr. Bragman declined to state that the manipulation itself was performed negligently.

¶13 Dr. Bragman testified that a complete physical examination would involve (1) checking "vitals, vascular screening, checking the cranial nerves, cervical ranges of motion, deep tendon reflexes in the upper extremities, motor testing in the upper extremities," CP at 201-02; (2) performing neurological testing because of Collins's radiating pain; (3) performing orthopedic testing

for the affected part of the spine; and (4) taking spine x-rays. This examination could indicate whether a patient is at a higher risk for vertebral artery dissection and stroke.

¶14 Dr. Bragman's opinion was that without conducting this pretreatment work-up, Dr. Juergens should not have performed the cervical manipulation on Collins. Dr. Bragman stated that "you have to have the clinical evidence present before you can touch them." CP at 192. He believed that cervical manipulation was contraindicated because Dr. Juergens failed to provide a clinical basis for treatment. Further, Dr. Bragman stated that it was inappropriate for Dr. Juergens do anything forceful with Collins because he had no clinical information about him. He stated, "[Dr. Juergens] should not have performed the riskiest type of treatment on the patient's neck without having first met the standard of care in working up the patient to establish the basis to perform the treatment in the first place. Rather, until that work-up had been done, he should have recommended alternative forms of treatment that do not carry this same risk." CP at 138.

¶15 When asked in his deposition whether a pretreatment work-up would have made any difference, Dr. Bragman stated, "I don't know. I mean, [Dr. Juergens] may have gone through, and there may have been other symptoms on that date. He may have done a thorough exam at some point and realized there were other issues .... [B]ecause they didn't do anything, I can't really answer that." CP at 77. He elaborated in his declaration: "It is impossible for me to know what [a] complete clinical picture would have been for Mr. Collins on January 28, 2014 such as whether there would have been particular history (such as respiratory problem, migraine headache or many others identified in my deposition), or physical examination or x-ray findings that may have contraindicated doing the manual manipulation." CP at 138.

¶16 Regarding informed consent, Dr. Bragman's opinion was that the standard of care required that a patient be warned of the risk of stroke

when a chiropractor recommends manual neck manipulation involving a vigorous, forceful rotational adjustment. He stated that the risk of vascular injury such as stroke from manual manipulation of the spine was material and significant. Dr. Bragman further stated that the risk of stroke from chiropractic treatment was not low, that it was greater when a proper work-up of the patient is not conducted, and that it was even greater for "vigorous, rotational manipulation of the neck." CP at 137. He noted that some chiropractors, including himself, included the risk of stroke on informed consent forms.

¶17 Dr. Bragman testified that a 2014 study showed that the magnitude of risk had been estimated "as high as 1 in 958 manipulations" and "as low as 1 in 5.85 million manipulations." CP at 171. However, he also stated that "the literature is unreliable in terms of setting a specific statistical risk" and the risk "is much higher than what is reported in the literature." CP at 136-37. He believed that the risk of stroke

was "grossly underreported." CP at 165. In the 900 forensic cases he had handled, Dr. Bragman had seen 400 cases involving vascular injury caused by...