The risks of spinal manipulation and the importance of maintaining detailed clinical records — Boothman v George

On 30 April 2024, Judge Terence Palmer, in the District Court of Western Australia, (the Court), handed down his decision in the case of Boothman v George¹ in which his Honour found in favour of the plaintiff, Ronan David Boothman. In the proceeding, Mr Boothman alleged that the defendant, Dr Christopher George, was negligent in the provision of chiropractic treatment (namely spinal manipulation), causing a disc bulge and worsening of his pre-existing spinal symptoms which required spinal surgery. This decision is a reminder to health practitioners of the importance of maintaining detailed clinical records and the risks of performing spinal manipulations.

This article was originally published in the Lexis Nexis Health Law Bulletin Volume 32 No 5 & 6.

Background

Facts

Mr Boothman had a history of lower back issues and first sought treatment from Dr George in January 2019 after he strained his back.² His back symptoms had been improving with treatment, until 4 May 2019, when Mr Boothman strained his back while surfing, which resulted in right-sided pain in the mid-to-lower back.³ Mr Boothman consulted Dr George on 18 May 2019, but said that the treatment made him feel worse.⁴ Although he was able to walk home after the consultation, the next morning, Mr Boothman had lost feeling in his right leg which was unable to bear weight.⁵ He had considerable pain in his buttocks and was unable to properly control his right foot.⁶

Mr Boothman consulted his GP on 20 May 2019 who referred him for a magnetic resonance imaging scan (MRI), which revealed that he had a central right disc protrusion with slight inferior extrusion at the L4/L5 vertebrae and an impingement of the right L5 nerve root.⁷ One of the discs between the vertebrae in Mr Boothman’s spine had ruptured and the contents of the disc had begun to leak out, affecting a nerve in his spine.⁸ Mr Boothman underwent spinal surgery on 25 May 2019.⁹

Issues

Mr Boothman alleged that Dr George was negligent in the treatment provided to him on 18 May 2019, causing his spinal injuries.¹⁰ He further alleged that:

• the treatment provided by Dr George was contraindicated given his history,
• Dr George ought to have referred him for an MRI scan of his spine before performing any treatment,
• Dr George failed to perform an adequate clinical assessment, and
• Dr George failed to treat Mr Boothman with due skill and care.¹¹

The principal issues to be determined by the Court were as follows:

• the specific treatment provided by Dr George to Mr Boothman on 18 May 2019 (which was disputed by the parties),
• whether Dr George breached his duty of care to Mr Boothman,
• whether any breach of duty caused Mr Boothman an injury, and
• what (if any) loss was caused by Dr George’s breach of duty.¹²

Judgment

The parties’ memory of the consultation

His Honour found that Mr Boothman had a better recollection of the events of 18 May 2019 than Dr George and gave clearer answers to the questions he was asked than Dr George, observing receiving treatment from a chiropractor was less routine for him than providing chiropractic treatment was for Dr George.¹³ His Honour further found that it was unsurprising that Dr George could not recall various matters, as he would have treated a large number of patients and it would have been difficult to recall specific treatment provided to one individual patient on one particular day, several years prior.¹⁴

His Honour found that the manner in which Dr George gave his evidence did not reveal any independent memory of what transpired during the consultation, and that he was really giving evidence that involved a significant amount of reconstruction based on his usual practice and what he thought he would have done, rather than specific recollections.¹⁵ With respect to the 'fallibility of human memory', his Honour observed that:

His Honour accepted both witnesses as being honest but noted that it was possible that both witnesses’ evidence may have been unconsciously influenced.¹⁸ Ultimately, however, his Honour broadly preferred Mr Boothman’s account of the consultation.¹⁹

Dr George’s clinical records

Dr George made a clinical record of the consultation.²⁰ However, in cross-examination, it was put to Dr George that he made this note to 'cover his tracks', which he denied.²¹ Further, in closing, Mr Boothman submitted that the note was 'suspicious and more consistent with a deliberate exculpatory note'.²² Dr George, in response, maintained that the note was accurate and reliable.²³ His Honour was not reasonably satisfied that Dr George fabricated the note, on the basis of the evidence presented at the trial, noting the seriousness of that potential finding.²⁴ Unfortunately for Dr George, his Honour found that even if his notes were not fabricated, they were not conclusive as to the treatment he provided.²⁵

Breach of duty

Mr Boothman alleged that Dr George breached his duty of care in four ways:

• performing spinal manipulations in circumstances where such treatment was contraindicated and created an increased and unreasonable risk of further injury,
• failing to arrange for Mr Boothman to undergo an MRI prior to performing the manipulations in order to exclude nerve root compromise and/or an acute injury,
• failing to perform a detailed clinical examination prior to performing the manipulations, including but not limited to analysis of muscle power, testing of reflexes or sensory examination, in order to exclude nerve root compromise and/or an acute injury, and in the alternative, and
• failing to exercise due care and skill in the performance of the manipulations.²⁶

Dr George denied breaching his duty of care to Mr Boothman and denied performing the spinal manipulations as alleged.²⁷ He alleged that the treatment that he provided was flexion distraction, myofascial release therapy and mobilisation by contacting the ischial tuberosity.²⁸ Spinal manipulation or adjustment is a manual treatment where a vertebral joint is passively moved between the normal range of motion and the limits of its normal integrity.²⁹ It often involves a high velocity thrust, a technique in which the joints are adjusted rapidly, often accompanied by popping sounds.³⁰

This results in transient stretching of joint capsules which, according to chiropractic belief, resets the position of the spinal cord and nerves, allowing the nervous system to function optimally and improving the body’s biomechanical efficiency.³¹ Some experts see spinal manipulation as an effective form of treating back pain.³² However, the evidence from randomised clinical trials remains contradictory and often unconvincing.³³

Mr Boothman called six expert medical witnesses:

• Dr Mark Lam, the neurosurgeon who operated on him on 25 May 2019,
• Dr Peter Silbert, a neurologist,
• Dr Peter Watson, a neurosurgeon,
• Dr Greg Finch, an orthopaedic surgeon, and
• Dr Bruce Watts, a chiropractor.³⁴

Dr George called just two witnesses, in addition to giving evidence himself:

• Dr Carlo Rinuado, a chiropractor and
• Mrs George, his wife and receptionist.³⁵

His Honour found that, in applying the provisions of s 5B(I) of the Civil Liability Act 2002 (WA), Dr George breached his duty of care to Mr Boothman:

…

Further, his Honour accepted the evidence of Mr Boothman’s expert witnesses and concluded that he was satisfied that it is more likely than not that the symptoms exhibited by Mr Boothman were caused by the treatment that Dr George provided and therefore established that the disc extrusion was caused at that time.³⁸ Dr George’s only expert witness was Dr Rinuado, a chiropractor, who accepted in cross-examination that if Mr Boothman had received the further treatment he described in his evidence, this could have caused his injury.³⁹ Further, Dr Rinuado accepted that Mr Boothman’s expert witnesses (Dr Silbert and Dr Watson) would broadly have a better understanding than him of the causation of nerve root pathology.⁴⁰

Mr Boothman was awarded a total of $176,644.43 in damages.⁴¹

Conclusion

This decision serves as a timely reminder for health practitioners as to the importance of maintaining detailed (and contemporaneous) clinical records. Given the number of patients seen by most health practitioners, it is understandable not to have a specific recollection of a consultation which occurs many years prior to the health practitioner having to give evidence about that consultation at trial in a proceeding brought against the practitioner for medical negligence.

In such cases, the health practitioner’s contemporaneous clinical records comprise their best defence and are arguably the best evidence as to the events that transpired. Further, a patient who experiences an adverse outcome following treatment and/or advice is more likely to have a specific recollection of that treatment or advice, as was the case in Boothman v George. Giving evidence about the usual practice of a health practitioner is unlikely to be preferred over the evidence of an honest witness who is accepted by a court of having an independent and clear memory.

Finally, health practitioners and patients alike should be aware of the potential risks of spinal manipulation. A 2017 review⁴² compiled evidence from 250 scientific publications in relation to risks and adverse effects of spinal manipulation or mobilisation and made the following conclusions:

• transient mild-to-moderate side effects — most commonly, increased pain or discomfort, stiffness, or headache — often occur after spinal manipulation or mobilisation,
• serious side effects, such as serious spinal or neurological problems or strokes involving arteries in the neck, have been reported. However, they are very rare, and there are no accurate estimates of how often they occur, and
• the likelihood of a serious side effect may be greater in people who have underlying health problems that increase their risk of injury.

The case of Boothman v George highlights the importance for health practitioners to thoroughly assess their patients prior to performing spinal manipulations, and for patients to share information about their health conditions and medications with the practitioner. It further emphasises the importance of making detailed clinical notes and, in the case of vulnerable patients, performing relevant investigations (eg, spinal MRI) prior to providing physical treatment which could exacerbate a pre-existing injury.

In particular, in relation to spinal manipulations, the practitioner should accurately record their assessment, as well as obtaining (and recording) the informed consent of the patient, having extensively discussed the risks of the procedure with the patient.

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¹ Boothman v George [2024] WADC 26; BC202440207.
² Above n 1, at [2].
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¹⁰ Above n 1, at [8].
¹¹ Above.
¹² Above n 1, at [12].
¹³ Above n 1, at [129] and [133].
¹⁴ Above n 1, at [130].
¹⁵ Above n 1, at [131].
¹⁶ Watson v Foxman (1995) 49 NSWLR 315; BC9505112.
¹⁷ Above n 1, at [134].
¹⁸ Above n 1, at [135].
¹⁹ Above n 1, at [275] and [501].
²⁰ Above n 1, at [140].
²¹ Above n 1, at [136].
²² Above.
²³ Above n 1, at [136].
²⁴ Above n 1, at [139].
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²⁸ Above.
²⁹ H Vernon and J Mrozek 'A revised definition of manipulation' (2005) 28(1) J Manip Physiol Ther 68–72 https://pubmed.ncbi.nlm.nih.go... .
³⁰ See E Ernst 'Adverse effects of spinal manipulation: a systematic review' (2007) 100(7) JRSM 330–38 www.ncbi.nlm.nih.gov/pmc/artic.../.
³¹ J C Segen Dictionary of Alternative Medicines Appleton and Lange, Stamford, CT, 1998.
³² E Ernst and MH Pittler 'Experts’ opinions on complementary/alternative therapies for low back pain' (1999) 22(2) J Manip Phys Ther 87–90 https://pubmed.ncbi.nlm.nih.go...
³³ E Ernst and P Canter 'A systematic review of systematic reviews of spinal manipulation' (2006) 99(4) JRSM 192–96 https://pubmed.ncbi.nlm.nih.go....
³⁴ Above n 1, at [106].
³⁵ Above n 1, at [107].
³⁶ Above n 1, at [387].
³⁷ Above n 1, at [389].
³⁸ Above n 1, at [495].
³⁹ Above n 1, at [501].
⁴⁰ Above n 1, at [461].
⁴¹ Above n 1, at [594].
⁴² US Department of Health and Human Services, National Center for Complementary and Integrative Health, 'Spinal Manipulation: What You Need To Know' September 2022, accessed 29 August 2024 www.nccih.nih.gov/health/spina....