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A Chiropractic Malpractice Case

Martin Smith
Martin Smith,
Partner

Desneiges Mitchell
Desneiges Mitchell,
Associate

November 2017

The Ontario Superior Court of Justice recently released a trial decision 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 (Patient*) sued the defendant (Defendant Chiropractor*) for negligence and battery for alleged improper chiropractic treatments.

Background

The Patient 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 her regular chiropractor at a clinic in Ontario in 1993. In 2006, the Patient's regular chiropractor received an MRI from the Patient that demonstrated a small disc herniation, which is a small bulge pointing backwards. As a result of this MRI, the regular chiropractor put a note in the Patient's file stating “No C/S ADJ”, meaning no cervical spine adjustment should be conducted on her. the regular chiropractor's evidence at trial was that this note was to be used by future practitioners in order to avoid injury to the Patient. However, in 2007, two green Worker's Safety Insurance Board (WSIB) claim forms were stapled to the front of the Patient's chart, obscuring this note.

On August 16, 2010, the Patient came in for an urgent appointment and was treated by the Defendant Chiropractor, as her regular chiropractor was away on vacation. The Defendant Chiropractor 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 the Patient's thoracic spine. However, the Patient claimed that the Defendant Chiropractor had adjusted her cervical spine. Sometime after the Patient went home, she complained of extreme pain and blamed the Defendant Chiropractor for this.

Accordingly, the Patient filed a statement of claim against the Defendant Chiropractor in 2012, stating that she committed chiropractic negligence in addition to “[committing] a battery upon her in that she performed adjustments to her 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 the Defendant Chiropractor owed a duty of care to the Patient, he preferred the Defendant Chiropractor's 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 Patient and Defendant Chiropractor. Causation was also not proven.

This successful decision for the Defendant Chiropractor 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 the defendant had met the standard of care, as a practicing chiropractor, in the Province of Ontario, and had not acted negligently at any time.

*The identies of the parties have been removed by request.
A full decision can be obtained on CanLii 2017 ONSC 5490 (CanLii).


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