The decision involved Mr Ronan Boothman (the Plaintiff) who commenced proceedings against his chiropractor, Dr Christopher George (the Defendant). After straining his back whilst surfing, the Plaintiff attended upon the Defendant for treatment, which he alleged was not appropriate and caused a worsening of his back condition, necessitating immediate surgery.
Background
The Plaintiff had a history of back complaints and had been diagnosed with a small disc bulge in 2008 and underwent L4/L5 and L5/S1 lumbar discectomy surgery on 16 December 2016. After this surgery, he did not report further symptoms until straining his back on 27 December 2018 whilst bending down to pick up a volleyball, after which he made an appointment to see the Defendant.
The first consultation with the Defendant was on 5 January 2019, with 6 further uncontroversial consultations between 12 January and 27 April 2019, during which time the Plaintiff’s back pain slowly improved. On 4 May 2019, the Plaintiff experienced a right back strain whilst surfing, which was not getting better. He began noticing spasms in his right glute muscle. The Plaintiff attended the Defendant on 18 May 2019 for treatment of the problem.
However, following the consultation the Plaintiff’s back pain was much worse. When he awoke on the morning of 19 May 2019, he had no feeling in his right leg from the hip down and had right foot drop. He attended his General Practitioner on the morning of 20 May 2019 and was referred for an MRI, which revealed a central right disc protrusion at the L4/5 and degenerate disc with broad based disc protrusion at L5/S1.
Over 22 to 24 May 2019 the Plaintiff’s pain continued to worsen, and he attended a neurosurgeon for further investigation. It was recommended he undergo emergency surgery, with right L4/L5 microdiscectomy and decompression of the right L5 nerve root occurring on 25 May 2019. The surgery was successful, with significant improvement in the Plaintiff’s right leg and back pain.
At Trial
A key issue for determination was what treatment was provided by the Defendant on 18 May 2019. Both the Plaintiff and the Defendant gave evidence at trial, and the Defendant’s consultation notes of 18 May 2019 were also in evidence. The Defendant’s evidence was troubled by his lack of memory of the consultations. He acknowledged giving evidence of his usual practice (what he expected he would have done) as opposed to memory of the consultation in issue. The Plaintiff’s evidence conversely was noted to be very detailed. The Defendant’s consultation notes could have supported his recollection, however his notes had significant limitations, as they were not conclusive and contained numerous abbreviations that were not self-explanatory. The Defendant’s evidence was largely limited to explaining the contents of his notes.
Both the Plaintiff and Defendant agreed that after an initial history was taken, some tests were administered, followed by the Defendant performing an examination on the Leander table. Whether the Plaintiff felt pain after this treatment was disputed, with the Plaintiff stating that he was in more pain than when he arrived and that he advised the Defendant of this at the time. Both parties agreed that there was then further treatment on a table, which the Plaintiff described as ‘forceful twisting’. However, the Defendant denied any manipulative treatment.
The Defendant submitted that the Plaintiff’s recollection of events, particularly about the nature and mechanics of the treatment provided, had been unconsciously influenced by his conversations with expert witnesses, or his knowledge of their evidence.
The trial judge found that whilst the Plaintiff struck him as an honest witness, it was possible that his memory may have been unconsciously influenced. However, the same observation might be made about the Defendant, who he also found to be honest in his evidence.
Ultimately, the trial judge found the Defendant administered further treatment with use of forceful twisting actions, preferring the Plaintiff’s evidence given his significantly better recollection.
His Honour found that whilst Defendant had acted reasonably when he decided not to arrange an MRI, given the Plaintiff’s history of back issues and presenting symptoms, the treatment provided, namely the administration of forceful twisting actions, was not reasonable, based on the expert evidence, as such treatment risked increasing intradiscal pressure.
Liability was therefore found in favour of the Plaintiff and damages of over $176,000 were awarded.
Takeaways
Litigation can be a lengthy process and it can take several years for a matter to reach trial. In the present case, the trial held in October 2023 and was considering the treatment provided at a single consultation in May 2019, some 4.5 years earlier. It is not unusual for defendant health practitioners to not remember the specific plaintiff or incident giving rise to the claim. For this reason, the importance of keeping full and accurate notes of consultations including documenting the treatment provided and patient response cannot be overstated.
In defending claims brought against them, health practitioners often rely upon their usual practice in a particular situation, as they no longer have a clear recollection of the Plaintiff or the event giving rise to the claim. This is to be expected, given the regularity of providing treatment. For the Plaintiff though, such a consultation will necessarily be a rarer and more memorable event – they will usually give detailed evidence of what was said and done at a consultation, with this evidence often corroborated by a family member or friend.
In a busy practice, the writing of detailed notes can often be seen as a task which takes up time which might otherwise be used to see patients. However, when a patient complaint arises this can leave the practitioner exposed to both civil proceedings and disciplinary proceedings with Ahpra and their vocational regulatory board. Keeping detailed notes of consultations or other patient interactions will provide the best defence for the practitioner as they provide a contemporaneous record of what occurred and can also serve as an aide memoire for the practitioner when asked to recall what occurred some years after the event.
To be useful, it is important that the notes contain all relevant information. Registered health practitioners have professional obligations under their respective Codes of Conduct to keep accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral and other management in a form that can be understood by other health practitioners.
As this case underscores, it pays to take the time to make sure that the same attention provided to the patient, is provided to the clinical record of the visit.
To read the full decision in Boothman v George [2024] 26, click here.
Written by Gemma McGrath, Managing Director and Daniel Lenzo, Associate.
