ABUSED, MISQUOTED AND MISUNDERSTOOD CHIROPRACTIC STANDARDS
By Michael A. Bryant
Exposing the myths about and the misuse of chiropractic standards requires common sense, a fundamental understanding of chiropractic care, knowledge of what the client is experiencing and, last, but not least, hard work.
A solid knowledge of your client's care will provide you with the ability to respond to misguided attacks purporting to rely on chiropractic standards. Most standards and much of the literature are based on large, nonspecific study groups. Thoroughly understanding your client's injuries and the care provided will give you many ways to distinguish your individual client from those broad study groups. With that fundamental understanding of the injuries and the care provided, you will have a better opportunity to enlist the effective assistance of the treating chiropractor.
A basic understanding of chiropractic treatment can help refute arguments made by the defense. Getting at least one chiropractic adjustment yourself may help you gain that understanding. Whiplash Injuries by Stephen M. Foreman and Arthur C. Croft1 is an excellent text that provides the fundamental underpinnings of needed support. Armed with this knowledge, you can more readily anticipate the defenses and argue the issues.
Although a particular article or standard relied upon by the defense may appear to undercut your client's claim, you must examine it carefully to make sure it applies and that it is being used properly.
Use and Abuse of the Literature
There are several articles that every practitioner should be familiar with:
1) Freeman, M.D., Croft, A.C., Rossingol, A.M., Weaver, D.S., and Reiser, M., "A Review and Methodologic Critique of the Literature Refuting Whiplash Syndrome," Spine 24(1): 86-96 (1999). This article should be copied and put in every "whiplash" file you have. It should be discussed with all testifying treating medical providers. It should be used to cross-examine every adverse doctor. The authors, from the Oregon University School of Medicine, searched the literature for articles that attempted to refute the validity of whiplash injuries. Twenty such articles were identified, including the Quebec Task Force report. The methodology in those articles was then critically evaluated to determine if the observations were scientifically sound. All of them were methodologically flawed. The authors conclude that there was no basis in the literature for statements such as: "whiplash injuries do not lead to chronic pain, rear impact collisions that do not result in vehicle damage are unlikely to cause injury and whiplash trauma is biomechanically comparable to common movements of daily living."
2) Malmivaara, A., Häkkinen, U., Aro, T.,et. al., "The Treatment of Acute Low Back Pain - Bed Rest, Exercises, or Ordinary Activity." N. Eng. J. Med., 332(6): 351-55 (1995). This article has become a favorite of many adverse doctors and is showing up as an exhibit in a number of no-fault briefs. Read this article carefully. It reports a study of 186 individuals (21 of those were lost to follow-up) with "acute, nonspecific low back pain." Patients with at least one neurologic deficit or positive straight leg-raising at 60 degrees or less were excluded. The subjects were assigned to one of three treatments: bed rest for two days, back-mobilizing exercises or ordinary activities as tolerated. Outcomes and costs were assessed at three weeks and twelve weeks. The authors concluded that, among patients with acute low back pain, continuing their ordinary activities within the "limits permitted by the pain" leads to more rapid recovery than bed rest or back-mobilizing exercises. How many of your clients meet those parameters? A majority of our clients attempt to go on with their daily activities within the limitations permitted by their pain. That being the case, this article either has no probative value or is supportive of most of our clients' claims.
3) Khan, S., Bannister, G., Gargan, M., Asopa, V. and Edwards, A. "Prognosis Following a Second Whiplash Injury." Injury, 31(4): 249-251 (2000). This is a retrospective study of 79 patients who suffered two whiplash injuries. The severity of symptoms was assessed after the first and second injuries. 84% of the patients reported increased symptoms after the second injury. Over 95% of those who had experienced no symptoms after their first whiplash injuries reported persisting discomfort following their second injuries. Use this article to show how a client with a second whiplash injury may require a greater amount of care than after the first injury.
4) Radanov, B.P., Sturzenegger, M. and Di Stefano, G. "Long-term Outcome After Whiplash Injury." Medicine, 74(5): 281-97 (1995). The researchers in this article tested the correlation between factors in a client's history and treatment and whether the individual experienced long-term symptoms following a whiplash injury. Patients were evaluated two years after their injuries, comparing a number of characteristics of those still experiencing symptoms with those who had fully recovered. 18% of the patients had injury-related symptoms after two years. The symptomatic patients also performed worse on tasks of attentional functioning than the non-symptomatic group. The researchers concluded that long-term effects of the whiplash injury are primarily related the initial severity of the injury and that symptom persistence can often be predicted after an early initial examination.
Abuse of the Standards
There are also several "standards" or "guidelines" every practitioner should be familiar with:
1) Minnesota Chiropractic Association Standards of Practice2. will be used frequently by the defense to attempt to limit the "reasonable" number of chiropractic treatments. If this book shows up in a trial or a no-fault hearing, there are a number of evidentiary considerations that must be addressed. Is there foundation for the defense to use the book? Was the book properly disclosed in answers to interrogatories and/or responses to demands for production of documents? Is the book relevant to the area that is being questioned? Finally, because the Minnesota No-Fault Statute provides for open care that is not limited by anything other than the reasonable, necessary and related standards, is this merely an attempt to create a managed care system unsupported by the law? Based on these objections, the book can be kept out of many cases.
If excerpts from the book are introduced into evidence, the whole book should be allowed. The first section, on education, licensing and regulation, provides a great opportunity to introduce the fact-finder to all that is involved in becoming a chiropractor. The second section, on the principles of chiropractic, provides an opportunity to review the code of ethics, the scientific theories of chiropractic and the definitions of subluxation. The third section, on chiropractic procedures and patient care practices, provides support for additional testing and referrals. The fourth section, on chiropractic examination and treatment parameters, will be where the defense frequently chooses to focus their attack. The Standards set forth suggested treatment schedules for a number of chiropractic conditions. The defense will want to pigeonhole your client into an individual category and then argue that there is some maximum number of treatments the individual should receive. In dealing with this attack, you should look at a several areas:
a) The best evidence of reasonableness and necessity is the actual care provided and your client's response to it. In most cases, the standards are contrary to the conclusions of the adverse medical examiner. A review of the adverse medical examiner's report will often find an opinion that the individual should have received a significantly lower number of treatments. Because that adverse examination is used to meet the defense's no-fault Wolf burden in an arbitration hearing, by introducing the Standards the defense may be impeaching their own expert.
b) The introduction to section four states that "injuries may require any one, or a combination, of the following procedures .... Each procedure, in and of itself, is a distinct portion of the care necessary to manage and treat neuromusculoskeletal conditions and injuries."3 The defense attempt to pigeonhole your client into "X" number of treatments will undoubtedly ignore the multiple areas of treatment that may be needed.
c) The defense will usually neglect the Standards' parameters on re-examination. Re-examination is "necessary to monitor patient progress or to evaluate changes in signs or symptoms, a new secondary problem, or a recurrence of a problem that has not required active care during the prior three to six months."4 The defense may argue that your client has a "mild condition" and then apply the more limited numbers of visits in the suggested treatment schedule for mild condition. A review of the re-examinations indicates that many patients vary from the time of their initial acute phase, through their rehabilitation phase, to the point when they are either healed or have some permanent impairment or disability. Changes may also include exacerbations. A review of your client's re-examinations often provides support for more ongoing care.
d) Defense attempts to pigeonhole this way are a fundamental misuse of the Standards, which recognize that there are a number of individual factors that play a role in the number of treatments needed by each specific client and that even the mildest traumatically induced condition can result in permanent disability in some cases.5
e) The defense usually never gets to the conclusion. In most cases, the defense will argue that your client's injury fits into a specific category, mandating a set number of treatments. They often ignore the Standards' parameters concerning "PRN Care"6 "Maximum Chiropractic Improvement (MCI)".7 This section indicates that maximum chiropractic improvement means only that a condition will not improve further. It does not foreclose the possibility that a condition may deteriorate or exacerbations may occur. It clearly states: "If there is a permanency, a deterioration, or exacerbation associated with this condition, then further documented PRN care may be necessary for that condition, perhaps indefinitely."8
The MCA Standards of Practice9 should not be used like a schedule in the Workers' Compensation Statute. Becoming familiar with the Standards provides multiple ways where a practitioner can show that the treatments are supported under the treatment parameters. When faced with defense "pigeonhole" arguments, use the whole book.
2) The Mercy Guidelines were developed in 1993 by a 35-member commission initially sponsored by the Congress of Chiropractic State Associations (COCSA). These guidelines have turned out to be extremely controversial and widely misused.10 Like the MCA Standards of Practice, these guidelines are not meant to be specific standards of care. Like the MCA Standards, they are frequently used by the defense or third-party payors to attempt to limit chiropractic care.Instead, these guidelines must be reviewed in total and reinforce that treatment plans should be individualized and modified based on regular re-examinations.11 They are primarily focused on the low back. Further, they are affected by specific conditions and medical background that complicate any injury. These guidelines are time-sensitive. All of the most recent evidence of the 1990's was not available for these authors.
The defense will often not look to the multiplying factors that are available under the Mercy Guidelines. Examples of multipliers include:
- Preconsultation duration of symptoms for more than 8 days may take up to 1.5 times longer to treat. (Based on an uncomplicated case for a maximum of 44 visits over a 12-week period.)
- Four or more previous episodes of severe pain in recovery may take up to two times longer to treat.
- Skeletal anomalies may lead to a need for increased care of 1.5 to 2 times as long.
- Structural pathology may require an increase of 1.5 to 2 times as long.
- Severe pain may require 2 times the length of care.12
The defense will leave out multipliers for permanency or PRN treatment. They will overlook continued care for an individual that is permanently injured. The defense will attempt to create some ceiling on the amount of care needed, ignoring the No-Fault Act and the individual circumstances of your client.
3) The Council on Chiropractic Clinical Practice Guideline, Number 1: Vertebral Subluxation in Chiropractic Practice,13 was developed, at least in part, in response to the Mercy Guidelines.14 This guideline is important for understanding why items were included in the other two standards. Again, the key to the whole process is re-examinations or what are defined here as "reassessments." This guideline includes many references, which can be used to provide support for overall chiropractic care, the type of procedures that are used and referrals that may be indicated.
This guideline further bolsters the proposition that there is no universal standard for a number of treatments:
Attempts have been made to identify an appropriate number and frequency of chiropractic visits based on type of conditions and degree of severity. Unfortunately, these recommendations are based mostly on consensus, and research to support these recommendations is lacking. Moreover, little to no delineation has been made in the duration of care literature base between care for specific symptomatic profiles such as low back pain, and long term subluxation-specific care.
...
It is the position of the Guideline Panel that individual differences in each patient and the unique circumstances of each clinical encounter precludes the formation of "cookbook" recommendations for frequency and duration of care.15
Conclusion
Don't let defense attorneys misquote the standards. The individuality and uniqueness of your client defines what is individually appropriate for their care.
The articles and literature for the most part can be very helpful. The key is making sure that each item applies to your client's individual case and that the studies are being read properly.
Throughout every one of his trial books, Gerry Spence spends a significant amount of ink on the theory that trials are won by hard work. Reading the articles, reviewing the medical records and spending the time to understand the case are what that hard work is about. In this day and age of vigorous defenses and jaundiced juries, trials are won and lost based upon the time that is put into the case. Clearly, the time put into each case will not only help make that one successful, but it will also build a foundation for many victories to follow.
1 S. Foreman & A. Croft, Whiplash Injuries: The Cervical Acceleration/Deceleration Syndrome (2d ed. 1995).
2 This manual was published in 1991 and some segments are considered outdated. A task force has been working for over 18 months to revise the Standards of Practice Manual, but the Minnesota Chiropractic Association (MCA) does not anticipate its publication in the near future. Memo from Bob Weiss, MCA Executive Director, to Purchasers of MCA Standards of Practice Manual (March 2001).
3 MCA Standards of Practice Manual at IV-2 (emphasis added).
4 Id. at IV-2 - IV-3.
5 See id., section IV-E, "Chiropractic Conditions".
6 Id. at IV-5.
7 Id. at IV-13.
8 Id. (emphasis added).
9 S. Haldeman, D. Chapman-Smith, D. Petersen (eds). Guidelines for Chiropractic Quality Assurance and Practice Parameters (Aspen Publishers, 1993) (hereinafter referred to as "Mercy Guidleines").
10 A full discussion of the Mercy Guidelines is far beyond the scope of this article. A detailed summary of these guidelines and other general chiropractic guidelines is available at http://www.guideline.gov/, by running a search on the term "chiropractic".
11 A cogent critique by Dr. Arthur Croft of the misquoting and misinterpretation of not only the Mercy Guidelines, but also other "guidelines", including the Quebec Task Force, may be found at http://www.chiroweb.com/archives/16/09/01.html. Dr. Croft notes:
On page IV of this document under the "General Disclaimer" heading is the following statement:
"These guidelines, which may need to be modified, are intended to be flexible. They are not standards of care. Adherence to them is voluntary. The Commission understands that alternative practices are possible and may be preferable under certain clinical conditions. The ultimate judgment regarding the propriety of any specific procedure must be made by the practitioner in light of the individual circumstances presented by each patient."
Just below that, it reads:
"This document may provide some assistance to third-party payers in the evaluation of care, but it is not itself a proper basis for evaluation. Many factors must be considered in determining clinical or medical necessity. Further, guidelines require constant re-evaluation as additional scientific and clinical information becomes available."
In chapter 8 ("Frequency and Duration of Care"), the area of these guidelines providing the basis for most of the more egregious misinterpretations I have seen, it reads (page 117):
"Guidelines concerning the treatment plan should be tempered with a balance of scientific information and systematic observation derived from clinical experience. Further, in order to be practical, they must be periodically upgraded to reflect advances in the ever-changing knowledge database. Their purpose is to assist the clinician in decision-making based on the expectation of outcome for the uncomplicated case. They are NOT [their emphasis] designed as a prescriptive or cookbook procedure for determining the absolute frequency and duration of treatment/care for any specific case."
They go on to note that:
"No attempt has been made to select for individual conditions by region of complaint or by diagnosis ... The majority of quantitative information available addresses the management of low-back [sic] and leg-pain complaints ... The references to low-back disorders in this section are used only as examples. There is no intent to imply that these conditions constitute the totality of chiropractic expertise or practice. Rather, since these recommendations were born from experience and from data on multivariate clinical circumstances, they may be extrapolated with appropriate case-specific modifications to most of the common complaints for which chiropractic care is sought."
On the same page, the authors go on to state:
"The approach to the development of guidelines for chiropractic quality assurance and standards of practice pertaining to the frequency and duration of treatment focuses on the uncomplicated case and logically includes the following considerations: 1) The natural history of common spinal disorders; 2) The characteristics and stages of tissue repair processes; and 3) Reasonable treatment/care outcome classified into short- and long-range goals."
On this page, and under the heading "Principles of Case Management," the authors note:
"The primary missions of health care delivery are to provide sufficient care to restore health, maintain it, and prevent the recurrence of injury or illness ... guidelines framing expectations of treatment outcome can be drawn from the literature and adapted by practical experience on a case-by-case basis."
Additional commentary and critiques of the Mercy Guidelines can be found at http://www.worldchiropracticalliance.org/positions/mercy.htm and also by running a search on the term "Mercy Guidelines" at http://www.chiroweb.com/. Another helpful article, entitled "Fighting Back on Mercy Document Abuse," reprinted from the California Chiropractic Association Journal, can be found at http://members.tripod.com/AFICC/mercy.html.
12 See "Mercy Guidelines," Ch. 8 - "Frequency and Duration of Care."
13 This guideline was published in 1998. The book can be obtained from the Council on Chiropractic Practice, 2950 North Dobson Road, Suite 1, Chandler, AZ 85224. It is also available online in HTML format at http://www.chiropage.com/guidelines/.
14 For a more detailed discussion of chiropractic guidelines, see http://www.chiropage.com/va/e.htm
15 Council on Chiropractic, Clinical Practice Guideline, Number 1: Vertebral Subluxation in Chiropractic Practice, Chapter 7, "Duration of Care for Correction of Vertebral Subluxation," at 83-84 (1998) (emphasis added).
