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A Chiropractic Malpractice Case

Featured Case: French v Stachejczuk

Martin Smith
Martin Smith,
Partner

Desneiges Mitchell
Desneiges Mitchell,
Associate

Alexander Steffen
Alexander Steffen,
Law Student

November 2017

Written by Alexander Steffen

The Ontario Superior Court of Justice recently released the decision of French v Stachejczuk where Martin Smith, partner at the Ottawa office of McCague Borlack LLP, with the assistance of Desneiges Mitchell, associate, successfully defended a chiropractic malpractice case where the plaintiff, Lisa French (“Ms. French”), sued the defendant, Dr. Barbie-Ellen Stachejczuk (“Dr. Stachejczuk”), for negligence and battery for alleged improper chiropractic treatments.

Background

The plaintiff, Lisa French, had a long history of chronic back pain, headaches, and other degenerative issues in her lower spine. She had a long history of receiving chiropractic treatments since her teens and began seeing Dr. Gleeson at the Gleeson Clinic in Thunder Bay, Ontario in 1993. In 2006, Dr. Gleeson received an MRI from Lisa French that demonstrated a small disc herniation, which is a small bulge pointing backwards. As a result of this MRI, Dr. Gleeson put a note in Ms. French's file stating “No C/S ADJ”, meaning no cervical spine adjustment should be conducted on Ms. French. Dr. Gleeson's evidence at trial was that this note was to be used by future practitioners in order to avoid injury to Ms. French. However, in 2007, two green Worker's Safety Insurance Board (WSIB) claim forms were stapled to the front of her chart, obscuring this note.

On August 16, 2010, Ms. French came in for an urgent appointment and was treated by Dr. Barbie-Ellen Stachejczuk, as Dr. Gleeson was away on vacation. Dr. Stachejczuk reviewed the file and did not see the “No C/S ADJ” notation as they were obscured by the WSIB forms. She then performed a chiropractic adjustment on Ms. French's thoracic spine. However, Ms. French claimed that Dr. Stachejczuk had adjusted her cervical spine. Sometime after Ms. French went home, she complained of extreme pain and blamed Dr. Stachejczuk for this.

Accordingly, Ms. French filed a statement of claim against Dr. Stachejczuk in 2012, stating that she committed chiropractic negligence in addition to “[committing] a battery upon her in that she performed adjustments to Ms. French's cervical spine without discussing or advising of the risks involved or seeking informed consent to do so.” Her daughters advanced claims under the Family Law Act.

The Decision


The Honourable Justice DC Shaw dismissed the action in its entirety.

The Honourable Justice DC Shaw dismissed the action in its entirety. Justice Shaw was satisfied that while Dr. Stachejczuk owed a duty of care to Ms. French, he preferred her evidence that she had never performed a cervical spine adjustment. This finding was made as the evidence provided was not congruent with the general treatment by experts called by both the plaintiff and defendant. Causation was also not proven.

This successful decision for Dr. Stachejczuk occurred as a result of the use of expert opinion evidence advanced by the defendants to assist the court. However, it occurred also by the use of effective cross-examination that served to have the plaintiff's chiropractic experts agree, for the most part, with the evidence presented by the defendant's chiropractic experts.

His Honour found this evidentiary fact extremely compelling and relied upon same extensively in determining that Dr. Stachejczuk had met the standard of care, as a practicing chiropractor, in the Province of Ontario, and had not acted negligently at any time.

Read the full decision here: Part 1 and Part 2.


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