In Defining the Chiropractic Standard Of Care, chiropractic expert witness Richard K. Skala, D.C., writes:
When the Supreme Court of the United States was considering the issue of pornography, Justice Stewart became a greater part of our legal lexicon when he responded in regards to defining pornography saying, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…..” Jacobellis v. Ohio, 378 U.S. 184 (1964).
Hopefully, the question of what constitutes a breach of the Chiropractic Standard of Care can be better defined. However, one must consider that the chiropractic profession contains a wide range of variability in terms of philosophical adaptation on the part of the individual chiropractic physician as well as a wide range of legal definitions from state to state in so far as what the scope of chiropractic practice is. This article will not address the 50 state variability, but suffice it to say the various scope of practice regulations range from the very limited (Michigan) to California, long known as a state with a broad scope (which is now undergoing a regulatory challenge with the forced importation of the California Board of Chiropractic Examiners into the California Department of Consumer Affairs – which is attempting to limit the scope of practice of the chiropractic physician in California to a 1923 standard!) and most recently in states such as New Mexico. where the more recent “advanced practice” regulations allow limited prescription and injections as a part of the scope of chiropractic practice.
An Internet search in regards to “chiropractic standards of care” reveals a number of “treatment guideline” or “clinical guideline” documents which are more suited for determination of treatment plans that are reimbursable by third party payors. There is no universal “Standard of Care” document or binding reference to be found in such a search. A few states have various “standard of care or practice” documents on the web sites of state chiropractic associations and or licensing boards.
DEFINING THE STANDARD OF CARE
Clearly there is a disconnect between the medical legal determination of Standard of Care and guidelines to clinical practice.
Many of the so-called clinical guidelines offer a narrowly confined approach to clinical management based on the influence of the insurance industry and what they are willing to pay for as opposed to what the chiropractic physician should in fact do to assure his/her own standard of care.
In as much as there is wide diversity amongst the 50 states as to scope of practice, any regulatory body statements or published “scope of practice” standards cannot be used as a “Standard of Care” reference.
Thus the question defaults to this: What is the medical legal definition of a “Chiropractic Standard of Care?” Most of the definitions of Standard of Care have a few common threads. Here is what several sources have to say:
The Free Dictionary: The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ. (See: negligence, duty of care)
Black’s Law Dictionary: Degree of care a prudent and reasonable person will exercise under the circumstances.
Nolo: The degree of care (watchfulness, attention, caution, and prudence) that a reasonable person should exercise under the circumstances. If a person does not meet the standard of care, he or she may be liable to a third party for negligence.
Most of these definitions also cross reference to “duty of care”.
Law.com - duty of care: A requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater. www.drskalachiroexpert.com.