HEALTHCARE PROVIDER NEWSLETTER Published by PEICK & ASSOCIATES, P.S. Vol. 2000 Issue 2 A Chiropractic Doctor's Scope of Required Diagnosis and Referral Periodically, a line of reasoning appears in the chiropractic profession's discourse, which asserts chiropractic doctors need only concern themselves, and insure themselves, for subluxation based healthcare. While I cannot address what other state laws may compel in this regard, doctors practicing in the State of Washington are ignoring a fairly well established rule that requires a broader scope of diagnosis. The case of Mostrom vs. Pettibon , 25 Wn. App. 158 (1980) was a chiropractic malpractice case in which the Court created a three fold duty on the part of Washington chiropractors regarding their obligation to use reasonable care in treatment. First, DCs must be prepared to diagnose or at least be alert to a potential medical problem versus a chiropractic problem. Second, DCs must refrain from further chiropractic treatment if a reasonably prudent chiropractic doctor would realize the patient's condition is not amenable to such chiropractic treatment, or that continued treatment may aggravate the condition. Third, if #1 or #2 exists, the DC must be prepared to refer the patient to another discipline when an alternative form of treatment is indicated. Common sense needs to be employed with respect to the potential magnitude of the alternative "condition" and the commitant obligation to refer. Nevertheless, doctors who strictly focus on subluxations to the exclusion of other conditions, to which they may have been or should have been alerted, risk malpractice claims for misdiagnosis or improper care. Doctors who have insured themselves with policies limited to "subluxation based" claims should inquire whether the company will insure and defend against Mostrom vs. Pettibon styled cases in the State of Washington. Expert Witness Liable for Negligently Prepared Testimony In a case which may create some interesting dilemmas for expert witnesses, particularly the hired guns for the defense, a Pennsylvania court in a 1999 decision held that expert witnesses may be held liable for giving flawed or incorrect testimony at trial. LLMD of Michigan, Inc. (Wintoll) vs. Jackson-Cross Co., 740 A. 2d 186 (1999). The case contradicts the longstanding doctrine of witness immunity which is designed to allow expert witnesses to be forthright and candid in their opinions. It is important to note that the opinion does not suggest experts become liable because people disagree about their conclusions, or even if the result of their testimony causes their side to lose the case. The opinion places liability upon an expert for negligence in formulating the opinion, which in the case of the Wintoll opinion was the expert's negligent mathematical calculations which understated the loss to the plaintiff by 2.7 million dollars. Whether this case is the harbinger of a trend or an aberration will be demonstrated over time. Defense Motions Excluding Chiropractic Testimony Periodically, defense counsel will bring motions in limine, or other motions to exclude or restrict chiropractic testimony. Unfortunately, because some judges lack experience with chiropractic, these motions can be successful. We have prepared a memo discussing the defense to such motions and have posted it to our website in the FORMS section under "Excluding Chiropractic Testimony". The memo is in PDF format. The memo is an attempt to begin a discussion and form the basis of reply briefs to reduce the success rate of such motions. Additions and suggestions for revision are welcome and should be sent to John Peick at jpeick@peick-usa.com, faxed to 425-462-7203 or mailed to Peick & Associates, P.S. at 2000 - 112th Avenue NE, Bellevue, Washington 98004. FEES FOR DEPOSITIONS Many defense attorneys are still not aware of the amendments to CR 26(b)(6) requiring a reasonable fee for healthcare provider testimony. See our memo on this amendment and how to proceed at our website under FORMS. PEICK & ASSOCIATES, P.S. is a law firm located at 2000-112th Avenue NE, Bellevue, Washington. In addition to our private practice, we serve as Legal Counsel to the WSCA. We welcome your referrals. We provide services to your patients in personal injury and wrongful death; and to providers in healthcare law, professional discipline, and business issues. Visit our website at www.peick-usa.com for forms and information which can assist you and your patients. Phone: 425-462-0660 and fax 425-462-0660. John Peick's email at jpeick@peick-usa.com.