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In recent years, if you have not noticed a significant increase in the number of your cases where a chiropractor is among the cast of characters, your experience is different from the way things have been going in Central Texas. The ever-increasing number of chiropractic files sent to our firm nowadays do not involve the …
In recent years, if you have not noticed a significant increase in the number of your cases where a chiropractor is among the cast of characters, your experience is different from the way things have been going in Central Texas.
The ever-increasing number of chiropractic files sent to our firm nowadays do not involve the good ole country chiro in some small town who miraculously cured Aunt Bessie’s pinched nerve or muscle spasm—and with just a very few adjustments—after her family M.D. had advised that “Mother Nature would take care of things in from two to six weeks.” I confess that I have no suggestions about how to deal with a situation such as that. I’m comforted, however, by a belief based upon experience that litigation is unlikely to develop in such a scenario.
In the sore neck/back chiropractor cases being sent to us nowadays, the D.C. has invariably run up an incredibly thick and heavy stack of bills for large sums of money ($5,000 to $20,000) over long periods of time. The “services” repeatedly and highly charged for are for: “manipulation therapy” several times a week for months and even years; “adjunctive procedures” such as multiple and expensive full spine and other “still” X-rays which are repeated periodically; moving picture X-rays called “videofluoroscopy,” which are much more expensive; TENS unit sales and/or treatment; intersegmental traction; toxic and/or heavy metal tests followed by “orthomolecular therapy” (a ruse for peddling vitamin pills); blood tests; saliva tests; new and different diagnoses after policy benefits for the original diagnosis have been exhausted ( different diagnosis is required for continuation of benefits); etc. ad nauseam. Those are the kinds of “manipulative” D.C.s that we are being called upon to deal with nowadays—and with increasing frequency. With respect to how one might deal with those kinds of D.C.s and those sorts of “manipulators,” I do have a few suggestions.
Spinal Manipulations or Manipulators of the System?
I am privileged to know several Central Texas lawyers who have persuaded juries that “manipulations” of the kind practiced by many chiropractors nowadays are neither necessary nor reasonable nor curative nor relieving; that such “manipulations” represent instead an abuse and misuse of the patient, the patient’s insurer, the “free medical” provisions of the Workers’ Compensation Act and, indeed, a manipulative abuse and misuse of the system in general; and that such “manipulations” are motivated far more by avarice and greed than by a desire to cure and/ or relieve the patient’s condition as soon as practicable.
Disclaimers and Credits
The trial lawyers I know will sometimes admit to being a bit weak in one area of trial practice or another. I have yet to meet any experienced trial lawyer, however, who does not take pride in his or her own unique style with respect to cross-examination.
I do not presume to tell any lawyer how to cross-examine any witness about anything. This is not a “how to cross-examine a chiropractor” paper. It is instead my aim to suggest some sources for study when you are preparing to examine a chiropractor, to set forth some areas you may think worthy of exploration during the examination and (with some degree of trepidation) to include a few Q&A examples. Whether to ask this or that, whether your demeanor and approach should be more like Rambo on the one hand or Columbo on the other ( or something in between), I leave entirely up to you.
Most of what follows is a distillation of ideas that came to me from such fine lawyers as Bob Grove, T.B. Wright, and Richard Tulk of Austin, and Billy Payne and Kelvin Adams of Bryan. For their help, I am truly grateful and have little doubt that they can be of help to you if you call on them for assistance as I did.
Illustrative Chiropractic Literature
To assist you in developing some general knowledge and insights which should serve well in fomulating searching questions to pose during examination of a chiropractor, I suggest the following materials:
- Textbook of Office Procedure and Practice Building for the Chiropractic Professions, by Jim Parker, D.C., Parker School for Professional Success, a division of the Parker Chiropractic Research Foundation, P.O. Box 4044, Fort Worth, TX 76140.
Pages 151-152 of this gem list 93 different maladies which are allegedly treatable by chiropractic along with the average number of adjustments or manipulations required to affect a cure for each ailment. A very few examples: it takes on the average 24 adjustments to treat menopause, 42 to cure prostate trouble, 46 to get rid of ulcers, 33 for herpes zoster, 28 for acne, and 50 for allergies and/or hemorrhoids. This “textbook,” compiled by D.C. Jim Parker (“Dr. Jim”), is valuable in other ways too numerous to list. It is a “must have” piece of chiropractic literature.
- Chiropractic Malpractiice by Peter Modde, D.C., Hanrow Press Inc., Department Z, Box 1093, Columbus, MD 21044.
This treatise includes fascinating discussions about the history and philosophy of chiropractic, along with many photos of horrors such as D.C.s performing procedures such as a “skull molding—cranial adjustment” on an infant’s skull. lt has discussions about such “adjuncts” of chiropractic as weight control programs of various sorts, spectroanalysis of hair samples, bloodless surgery, reflexology, cranial adjusting, descriptions (and photographs) of various “contortionistic” maneuvers, and a host of other “far out” methods of diagnoses and treatment.
This treatise also discusses “excessive adjusting” where the treatment intended to alleviate the condition becomes the irritant that perpetuates it. D.C. Modde describes what might well happen when a chiropractor who advertises the “Palmer Method” in his yellow page ad gets a hold of a patient. One famous “Palmer Method” is variously called the toggle-recoil adjustment, the HIO, or the Hole-In-One. About this Hole-In-One Palmer Method, D.C. Modde writes:
According to some observers, many patients would roll from the side posture on the table onto the floor and fling their bodies from side to side, some would then lose consciousness. Palmer allowed no one to assist them, for he claimed that the patient’s ‘innate or spirit’ was healing the body and it must not be disturbed.
D.C. Modde goes on to say that for some of the many present day followers of the Palmers (i.e., Daniel David and his son, B.J.), this “toggle-recoil adjustment is the only manipulative technique.”
Moral: Always check the yellow pages to see if the chiropractor you are to examine went to school at the Palmer College of Chiropractic in Davenport, Iowa or advertises himself as a devotee or practitioner of the “Palmer Method.”
- The Chiropractors Adjuster, also entitled The Science, Art and Philosophy of Chiropractic, D.D. Palmer, Portland Printing House Company, Portland, Ore.
This is a basic bible of chiropractic and was published by its revered founder in 1910. Although it is said to have ancient origins in Greece, India and China, chiropractic in America began in 1895 when D.D. Palmer claimed to have cured his janitor, one Henry Lillard, of longstanding deafness by two adjustments. Two of the spinal processes of Mr. Lillard’ s neck were used as “levers.” One wonders why, according to Dr. Jim Parker’s “modem” textbook, it takes chiropractors nowadays an average of 33 adjustments to cure deafness when Palmer’s method required only two. Perhaps the increase in the average number of required adjustments to alleviate this or that condition is attributable to what D.D.’s son, B.J., had in mind when, in 1952, he wrote in his book Answers:
Q: What are the principal functions of the human spine?
A: To support the head.
To support the ribs.
To support the chiropractor.
D. Palmer’s The Chiropractors Adjuster suggests countless avenues for cross-examination. Pages 913 through 970 lists page after page of almost every malady ever experienced by mankind along with how this or that vertebrae should be adjusted to effect a cure. A few examples: For ectropian (a turning out of the eyelid), adjust the fourth cervical; for eczema, work on the sixth dorsal; dipsomania, an uncontrollable desire for spirituous liquors, can be relieved by adjusting the fifth dorsal toward the left shoulder; club foot responds to adjusting the fourth lumbar; gleet, a chronic condition resulting from gonorrhea, is relieved by adjusting the second lumbar; and, of possible interest to old, broke down, insurance defense lawyers, impotence is cured and reproductive power is restored by adjusting the first lumbar.
- At Your Own Risk: The Case against Chiropractic, by Ralph Lee Smith, Trident Press, A Division of Simon & Schuster Inc., 630 Fifth Avenue, New York, NY 10020.
Perusal of this one will generate in your mind innumerable questions to pose to a chiropractor. It includes detailed discussion of the history of chiropractic, the background of D.D. Palmer and of his son, B.J.; it exhaustively describes how chiropractic is actually practiced nowadays and contains other gems too numerous to mention.
- Anything Can Cause Anything, “A Correlation of Dr. Daniel David Palmer’s Principles of Chiropractic,”privately published by the author, W.D. Harper, a former teacher in and dean of the Texas Chiropractic College in Pasadena, Texas.
Graduates of TCC can be expected to recall this highly authoritative work. While many chiropractors will strive to avoid much discussion about literature written by either of the Palmers, I have yet to find a TCC graduate who would repudiate Dr. Harper or his text. Some D.C.s are “discomfitted” when they have denied that Palmer’s The Chiropractors Adjuster is authoritative nowadays and admit later on that Dean Harper’s Anything Can Cause Anything was one of their basic texts at TCC. This is so because Harper’s book is subtitled “A Correlation of Daniel David Palmer’s Principles of Chiropractic.” Moreover, Dr. D.D. Palmer is repeatedly cited as an authority for this and that assertion throughout the Harper text, and Palmer’s own textbook is usually the first and sometimes the only authority in the bibliographies which follow each chapter of Dean Harper’s “modern” text.
- 477 Practice Building and Office Procedures Ideas, “The Best of Share,” published by the Parker Chiropractic Research Foundation, Inc., P.O. Box 40444, Fort Worth, TX 76140.
Share is a periodical. It has far more to do with how chiropractors can get real rich real quick than how a chiropractor can cure and relieve patients of anything. The Best of Share contains many articles about such matters as: how D.C.s can persuade patients to submit to Xray after X-ray, how to testify effectively in court by telling less than the full truth, how to persuade the patient that “the higher the fee, the better the doctor,” and how to answer patients who inquire as to why no cure ever seems to result from repeated manipulations and other modalities of treatment over long periods of time. When inquiries of those sorts are made by the patient, Share teaches that the chiropractor should tell the patient something like: “The only things I know of that can be cured are ham and tobacco” and then explain that the patient’s condition is a chronic and incurable one that must repeatedly be treated to keep it from getting worse but can never be “cured.”
On pages 335-342 of The Best of Share are about 150 so-called “punch lines” for the chiropractor to use in various situations where the patient expresses concern about what has gone on in the course of various and unending “manipulations” of one kind and another. Most all of these “punch lines” from Share are designed to scare the patient into believing that yet more and more adjustments are needed; that multiple and repeated X-rays are required along with various adjunctive therapies and supplements of one kind and another.
One of my favorite “punch lines” has to do with Ms. Jones. This hypothetical lady had told the chiropractor on the occasion of her first visit that she was 5’2″ tall. Later on during the course of protracted treatment, the chiropractor himself purports to measure Ms. Jones and tells her: “Ms. Jones, you told me that you were five feet two inches, but today you measure only five feet ¾ inches; if you are losing height, it is very serious and we must find out why you are shrinking and stop it now before you get worse.”
A host of similar techniques for convincing the patient the condition is chronic and multiple adjustments and other manipulations will be required in the future are included in “Dr. Jim’s” textbook of practice building. It repeatedly emphasizes that the chiropractor must “dig for chronicity” and convince the patient that the acute symptoms are likely manifestations of a chronic condition that will require frequent adjustments “from now on.”
Dr. Jim’s publications are full of suggestions about various things the chiropractors should say to patients to scare them into corning back and back. Just two examples: “It seems to me, Mrs. Brown, that you do not have any other method of relief to resort to” and “Mrs. Brown, if what I suspect in your case actually exists, your condition will grow steadily worse until corrected.”
- Secrets of Practice Consultant, by Peter G. Fernandez, D.C., Hazlitt Printing and Publishing Inc., 2135 First Avenue South, St. Petersburg, FL 33712.
This is a four-volume paperback work with such subtitles as “Building a Personal Injury and Workers’ Compensation Practice,” “1001 Ways to Attract New Patients,” “How to Start a Practice—Quickly, Profitably, Proudly” and “What the Public Expects (and Demands) of a Doctor.”
This chiropractic guru suggests that when a patient complains about exorbitant fees, the chiropractor should reply “You say you have been saving for a rainy day? IT’S RAINING.”
D.C. Fernandez’ publications can be ordered from Practice Management Associates, 10812 Gandy Boulevard, North St. Petersburg, FL 33702.
The works of D.C.s Modde, Harper, and D.D. Palmer (and a host of others) can be ordered from TCC Bookstore, 5912 Spencer Highway, Pasadena, TX 77505-1699. Customers are encouraged to order by phone; the number is 713/487-9470.
- Texas Journal of Chiropractic. Published monthly by the Texas Chiropractic Association. Subscription rate is $24/ year for nonmembers. Checks should be sent to 6448 Highway 290 East, Suite F-106, Austin, TX 78723, or call 512/ 454-4551.
TJC is full of ads about how chiropractors can increase their profits by plugging this or that product. One of my favorite ads has to do with “Doctor’s Fast.” By prescribing either Vanilla Cream or Chocolate Delight, the ad says that “with as few as 12-15 patients per week, you can increase your annual receipts by $90,000.” Doctor’s Fast is said to be effective for obesity.
I was intrigued by a large ad which appeared in the March 1990 issue of TJC which plugs GINKGOD as having had documented success in helping such things as: short term memory loss, tinnitus, vertigo, acute cochlear, deafness, diabetic related vision problems, and “SCAVENGE FREE RADICALS.” I have not yet discovered what “scavenge free radicals” means medically, but it does sound pretty bad—and I am glad that GINKGO-D is now available to cure it.
Getting Ideas Generated by the Books Before the Jury
Many chiropractors you encounter nowadays will claim various degrees of ignorance about the “outdated” works of D.D. and B.J. Palmer. Some will even deny knowing much about the more modem “Dr. Jim” and/or D.C. Fernandez, although most will admit to having “heard about” all four of these widely known D.C.s. The “heard about” may be sufficient to “open the door” for a series of “And what you have heard is” questions.
The chiropractors you are likely to deal with are smart enough to know that much of the teachings of the Palmers sound more like voodoo than the enunciation of scientific principles. They are also aware that the seminars and literature pushed by the likes of D.C.s Parker and Fernandez sound like outright quackery and deal far more with questionable means and methods whereby a chiropractor can “get rich quick”—and stay that way—than how to cure and relieve patients of whatever their complaints might be.
Skepticism as a Means to Opening the Door
Most chiropractors will admit that they are aware that some M.D.s and even members of the public generally are a tad skeptical about various aspects of chiropractic regardless of how unwarranted the skepticism might arguably be. After getting the chiropractor to admit that there still remains some degree of bias or skepticism about chiropractic—skepticism in the air, so to speak—and even though chiropractic is making great strides nowadays, it is usually worthwhile to explore with the chiropractor witness several of the reasons why some M.D.s and others are still a tad skeptical.
Consider asking if one reason why some folks are still skeptical is that there are still many chiropractors who claim that such maladies as hay fever, allergies, obesity, and a host of other conditions not ordinarily associated with the spine respond well to vertebral manipulations. This sort of colloquy can help you get before the jury the “tables” set forth on pages 151-152 of Dr. Jim’s textbook. Listed there are 93 conditions. Very few of them appear to be related in any way to the spine, but all allegedly respond to spinal manipulation—if, and only if, one is manipulated often enough over a long enough period of time.
History of Chiropractic
It is helpful to get the chiropractor witness to talk about the early history of chiropractic. Few “testifying” D.C.s will forthrightly admit that the Palmer texts are authoritative, but they will usually admit to having taken one or more courses having to do with the history and/or philosophy and/or theory of chiropractic. They will admit they read during those courses the story of the grocer-magnetic healer-chiropractor’s cure of Henry Lillard and about D.D. Palmer’s strong belief he could cure anything by adjusting some one or another vertebra one way or another. The chiropractor witness will usually admit that chiropractors claiming to cure acne, ulcers, impotency, menopause, and the like, is one reason why some skepticism about chiropractic is still extant to some limited extent, at least.
Exorbitant Expense and Manipulations “Forever”
One might inquire whether the expense of repeated adjustments over long periods of time at $40 to $60 a visit, plus multiple, expensive X-rays, traction, vitamins, food supplements and the like is possibly yet another reason for some degree of skepticism about chiropractic. The chances are good that the very case in which the chiropractor is testifying against you is a perfect illustration of “exorbitant expense” as a reason for doubts about chiropractic practices.
It may be useful to ask if arguably distasteful and/or misleading advertisements in or on the radio, newspapers, T.V., Yellow Pages, and even billboards are factors which enter into why some are skeptical of chiropractors.
It is well to have a copy of the Yellow Pages from the telephone book at hand when cross-examining along these lines.
In cases involving chiropractors who advertise themselves as specializing in “accident cases —workers’ compensation—industrial injuries—personal injuries” (and many do), I like to ask whether there is any board or other authoritative body which certifies a chiropractor as being an “accident” or a “workers’ compensation” specialist. Those sorts of questions might be followed by others which ask the chiropractor to explain and/or demonstrate exactly how he positions his hands to adjust or manipulate an “accident” or a “workers’ compensation.” One might then ask if it isn’t true that honorable physicians seek to diagnose and then cure and relieve bodily conditions as distinguished from “accidents,” or a “workers’ compensation” and so on; that honorable physicians treat conditions, not accidents and do so regardless of whether the particular condition is causally related to some auto accident or on-the-job injury on the one hand, or working in the garden or other non-compensable event on the other. Regardless of how the chiropractor answers the above line of questions, I like to go on with a series to establish that the chiropractor has advertised himself to be a specialist in accident, personal injury and workers’ compensation cases because (in the words of Willie Sutton, a celebrated American bank robber and escape artist) “that’s where the money is.”
Hypotheticals of the following sort are sometimes useful. “Please assume with me, sir: that an individual driving a company truck in the course of employment by an employer covered by workers’ compensation insurance had an auto accident right in front of your office; that you had seen the accident occur; that such individual had sustained multiple contusions, deep cuts, a compound fracture of an extremity; and, that the individual had lost a significant amount of blood and was in a state of medical shock. Now, further assuming that you are (as you appear to be from your Yellow Page ad) a chiropractic specialist in auto accidents and workers’ compensation, I ask you:
“Do you have an emergency room as a part of the auto accident-workers’ compensation services that you advertise about?” I might continue with the following: “Could you, sir, as a chiropractor specializing in accident cases—but nevertheless still governed by various restrictions set forth in the statutes of this state relating to chiropractic—perform such surgery as is necessary to correctly reduce and cast the fractured extremity? Could you permissibly suture the cuts? Could you give the patient a shot of pain-killing, narcotic medicine? Could you initiate IV fluids or administer a blood transfusion to stabilize the patient? Could you admit the patient to a hospital that you are on the staff of and/or where you are allowed to admit and/or treat patients? If you somehow failed to completely cure the patient on this first visit, could you write a prescription for pain medicine to relieve him until a return visit, and so on?”
Several chiropractors in Austin and other central Texas towns advertise that they are set up to administer “Intensive Care.” Some of these practitioners also have in the records you will secure from them a form entitled “Intensive Care Evaluation” or something similar to that. In those cases, one might consider asking whether as a part of “Intensive Care” the chiropractor provides IV services, heart rate monitors, beds for overnight stays, round-the-dock nursing by registered nurses, narcotic medicines, transfusion equipment and similar services and equipment that one finds in intensive care facilities in M.D. institutions.
I try, not always with success, to get across the idea that “intensive care” in chiropractic offices really means nothing more than the patient being subjected to far more frequent manipulations of one kind or another than the non-intensive care patients.
If the questioning about auto accidents, workers’ compensation, and personal injury being where the money is has gone fairly well, one might consider going farther with something like “And that’s where the money is because patients allegedly injured on the job and/or in auto accidents (as distinguished from at home) often have a claim or a lawsuit pending and there is rather an “expectation in the air” that they will keep coming back and back and back to you, free of cost to them—not necessarily so much to get promptly healed and released and returned to work, but rather to ”build up” their claim or suit in the hope that the claims people with the insurance company and/or the jurors will infer “Oh, he must have been hurt badly, otherwise why would he have to go to the doctor so often over such a long, long period of time?” Isn’t there at least some insight, sir, in what I just related to you as to why you advertise yourself as a specialist in such things as auto-accidents, industrial injuries, workers’ compensation, personal injury, and so on.
Written Depo from Friendly, Conservative Chiropractor
Many of the assertions in the chiropractic literature will give the jury the correct idea that chiropractic is non-scientific, not without dangers and not infrequently practiced far more in deference to profits for the chiro than to cure and relieve the patient. Hence, it might be worthwhile to find, as we have found, a conservative, friendly chiropractor from whom to take a very brief deposition on written questions for the sole purpose of establishing the publications you wish to read from or examine from as authoritative and/or “learned treatises” within the meaning of Rule 803(18) Texas Rules of Civil Evidence.
Yet Another Way
There are a couple of Texas cases (Pacific Indemnity v. Garcia, 440 S.W.2d 335 (Corpus Christi 1969, n.r.e. and TEIA v. Hacker, 448 S.W.2d 235 (Fort Worth 1969, n.r.e.) which state that you can have the various texts before you to assist you in formulating your own questions as you cross-examine. As I read these cases, that is entirely permissible so long as you do not directly ask the witness if he or she agrees with the following statement in so-and-so’s learned treatise.
It is not unlikely you can get your chiropractor witness to boasting a bit about the many seminars he or she has attended and/or about the courses he or she has taken at some foundation or school attended since graduation from chiropractic college as a part of “continuing chiropractic education.” The chances are pretty good that some of these seminars will have been put on by persons associated with Dr. Jim Parker’s Chiropractic Foundation in Fort Worth and/or that Parker people have taught these brief postgraduate courses.
Most of these so-called seminars and post-graduate courses do not deal with such things as techniques for more effective adjusting or other ways to promptly cure and/ or relieve complaints. Some of them do deal with the history and/or philosophy of chiropractic (another way to get to talk about D.D. and B.J. Palmer, the Hole-In-One treatment, the “innate,” etc.). However, most of the seminars have to do with “practice building”—a phrase which actually means how chiropractors can get rich and stay rich by scaring the patients into coming back and back and back to the chiropractor’s office—all at the expense of the insurance company and not the patient.
Actually, the same things are talked about at these seminars as are written about in the Parker and Fernandez literature about “practice building,” to put it as politely as it can be put. Most chiropractors who will admit to having attended seminars of this sort will also admit that there is more emphasis on “practice building” and profits than upon improving other “manipulative techniques.”
Yet another way for possibly opening the door for detailed colloquies and/or reading pages from the grossly unprofessional suggestions in the Parker and/or Fernandez publications is to carefully examine each of the billing and many other forms you will find in the chiropractor’ s records. It is often the case that many of the forms say in very fine print that they came from one of the Parker enterprises. One can call the chiropractor’s attention to Parker’s name on the forms and then ask if the Parker outfit whence the forms came is the same outfit that puts out these books on how to get rich quick while not discharging patients for a long, long time.
State Board of Chiropractic Examiner Files
After one gets a feel of the chiropractic literature summarized above, I think one should then prepare for a particular chiropractor by reviewing (or hiring someone to thoroughly review for you) the particular D.C.’s file kept by the Texas Board of Chiropractic Examiners in Austin, Texas. These files are kept at the board’s offices at 8716 Mopac Expressway North. They are apparently “open records.” I say that because I have never had any problems about it when I simply call in advance and tell the receptionist that I am coming out to the offices of the board and will appreciate it if she will have ready for me the file on doctor so-and-so.
For you unfortunate people who are not blessed by living in Austin, may I say that I expect that most any of our TADC brethem who do live in Austin will be happy (for a modest fee, of course) to conduct for you a study of the board’s files and let you know if the contents might be helpful.
Perhaps we have been incredibly lucky in our firm, but the experience of the lawyers with whom I work has been that these board files often contain extraordinarily useful and sometimes utterly devastating material.
Some of the files are several inches thick with such things as injunction suits brought by the AG and/or Board of Medical Examiners to restrain the chiropractor from practicing medicine by treating obesity via taping B.B.s on the patient’s earlobes. I suppose the rationale is that only M.D.s can treat obesity with B.B.’d ears. One will often find in the board files: complaints by patients about their insurer being billed for treatments of various kinds which were never actually administered; uninsured and/or poor patients quickly treated by the chiropractor’s clanging symbols over the patient’s head three times and pronouncing a cure; treating female patients via vaginal massages with a vibrator (and then selling such a vibrator to the patient); advertising one’s self as a doctor, without disclosing that the advertiser is a D.C. only and not an M.D.; complaints of sexual harassment by the chiropractor of his C.A.s (chiropractic assistants); and, many other reprehensible practices.
These board files often contain copies of certificates evidencing attendance at the kind of post-graduate seminars, courses, etc. put on by Dr. Jim Parker’s Fort Worth foundation and Dr. Fernandez’ place in Florida. Such documentation is, of course, most helpful if the witness seeks to deny knowledge of Dr. Parker and/or Dr. Fernandez or otherwise tries to disassociate himself from the “money grubbing” chiropractic literature such as Share, Secrets of a Practice Consultant, Textbook of Office Procedures and the like.
Spine Poppings—Curative or Causative of Continuing Discomfort
It may be helpful to explore “spine poppings” as yet another reason for skepticism. One can explore with the witness the possibility that chiropractic treatment, i.e. “popping” neck bones and back bones, mashing and punching on one’s vertebral column and the adjacent nerves, ligaments, muscles and so on, is as likely to aggravate and/or perpetuate a condition as it is to alleviate the condition. There is much medical and even chiropractic literature about various serious dangers of spinal manipulations. There are some real horror stories in the Modde treatise, in At Your Own Risk, and elsewhere. Most chiropractors will admit that they have heard of various catastrophes having happened to patients of “other” chiropractors.
Most chiropractors will quickly admit that there is indeed a “popping” sound incident to most ad-justments. One finds various explanations about this in the literature. None of the literature I have read indicates how the “popping” is beneficial. In any event, discussion with the chiropractor about those sorts of things is likely to result in the jury having the correct impression that the manipulations are as likely to aggravate, as to cure, the patient’s condition.
Recovery of Attorney’s Fees Where Chiropractor is “Independent Claimant”
Many cases involving chiropractors are workers’ compensation cases. They not infrequently reach the district court because the IAB has awarded some chiropractor a large sum of money as an “independent claimant”—and the carrier wants a jury to pass on whether the bills were reasonable and necessary to cure and relieve the effects naturally resulting from the alleged injury.
In one of our first such cases, we were delighted to discover that unnumbered Paragraph 5 of Section 7 of Article 8306, Texas Revised Civil Statutes, provides that:
If the person or facility providing . . . chiropractic services . . . recovers an amount equal to or in excess of the charges submitted to the board, such person or facility shall be entitled to recover from the association an amount equal to 12 percent of the amount unpaid and reasonable attorneys’ fees. If the amount so recovered is less than the charges submitted to the board, the association shall be entitled to recover its reasonable attorney’s fees from the person or facility providing the . . . chiropractic services . . .
While I have found no case which expressly so states, I take that part of the statute emphasized above to mean that if the amount the chiropractor recovers in district court is even a penny less than the amount submitted to the board by the chiropractor, the carrier shall be entitled to recover its reasonable attorney’s fees. I think the odds are good that the jury, at the very least, will “compromise down” to some extent the amount of the IAB award and thereby lay a predicate for the carrier to recover its attorney’s fees from the chiropractor. This sort of result is great clientsmanship.
Moral: If the chiropractor in a workers’ compensation case requests peer review in lieu of a jury trial or some other form of ADR, don’t go for it—ADR enthusiasts notwithstanding. I think a carrier is more likely to recover attorney’s fees pursuant to the statutory language just quoted if the bills are passed upon by a jury than if some arbitrator, mediator, or peer review committee decides the extent of permissible recovery by the chiropractor.
The avenues of effective cross-examination of chiropractors suggested by the chiropractic literature and your particular D. C. ‘s own records are as limitless as the examiner’s imagination. It is arguable whether the few suggestions made in this paper have even scratched the surface. In any event, I feel that I am out of time, space—and gas.
If any of you would care to study an actual, classic example of “how to do it,”please call me and I will send you an actual transcript of testimony. The cross-examination I will send you was conducted by my friend and mentor, Bob Grove, a partner in the Austin firm of Mullen, Maclnnes, Redding & Grove.
It is also the case that I had an occasion last year to prepare a large stack of questions for possible use in examining an extraordinarily “colorful” chiropractor. I will be happy to furnish such stack of questions to any of you if you will promise to spring for the xeroxing and mailing expense.
I apologize for the disorganized nature of this paper, but take some comfort in the rationalization that if I don’t know where I am going, the other. lawyer and his witness cannot know where I am going either. I think this vice or virtue (call it what you will) is especially helpful when examining chiropractors.Hide Full Content
Lelord Kordel (1908-2001), who wrote about twenty books, recommended high-protein foods, lecithin (“the miracle nutrient”), and high-dosage vitamin and mineral supplements for everyone. According to court records, he began producing and marketing supplements in 1941, operating under various trade names. In 1946, he was convicted of misbranding and fined $4,000. One product in the case …
Lelord Kordel (1908-2001), who wrote about twenty books, recommended high-protein foods, lecithin (“the miracle nutrient”), and high-dosage vitamin and mineral supplements for everyone. According to court records, he began producing and marketing supplements in 1941, operating under various trade names. In 1946, he was convicted of misbranding and fined $4,000. One product in the case was Gotu Kola, an herbal tablet said to restore youth and “produce erect posture, sharp eyes, velvety skin, limbs of splendid proportions, deep chests, firm bodies, gracefully curved hips, flat abdomens” and even “pleasing laughter.” Thirteen other products were falsely claimed to be effective against various conditions including heart disease, liver troubles, tuberculosis, bone infections and impotence.
Kordel had a brush with the FTC in 1957 and two more with the FDA in 1961. In 1963, when he was president of Detroit Vital Foods, Inc., products shipped by the company were found to be misbranded because they were accompanied by Kordel publications which falsely claimed that nutritional products could treat practically all diseases. After the appeals process was ended in 1971, Kordel was fined $10,000 and served one year in prison. Catalogs from Vital Foods, Inc., described him as “America’s leading vitamin and diet expert” and claimed that he has never been ill.
Summaries of Seizure Cases
- 2580. Misbranding of Gotu Kola tablets, Minerals Plus tablets, sarsaparilla root, Cetabs tablets, Fenugreek tea, Fero-B-Plex tablets, Bolax tablets, Ormotabs tablets, Ribotabs tablets, Eordel tablets, Everm wheat germ oil capsules, Kordel-A capsules, Garlic Plus tablets, Niamin tablets, and sarsaparilla tea. Three Informations: U. S. v. Laura Eordel Gotu Kola Distributors) and Lelord Eordel, U. S. v. Lelord Eordel Lelord Eordel Products), and U. S. v. Lelord Eordel (Lelord Eordel Products and Nutrition Enterprises). Pleas of not guilty. Tried to the court. Verdict of guilty against Lelord Kordel; verdict of not guilty against Laura Kordel. Fine of $4,000 against Lelord Kordel. Judgment affirmed upon appeal to U. S. Court of Appeals for the Seventh Circuit and upon appeal to U. S. Supreme Court.
- 2581. Misbranding of Gotu Kola tablets, fenugreek tea, Bolax tablets, Garlic Plus tablets, Ribotabs tablets, Minerals Plus tablets, sarsaparilla tea, Everm wheat germ oil capsules, Kordel tablets, Ormotabs tablets, Cetabs tablets, Fero-B-Plex tablets, Kordel-A capsules, Niamin tablets, Papaya Plus tablets, and Matto tablets. U. S. v. 134 Packages, etc. (and 3 other seizure actions).
- 3649. Alleged misbranding of fenugreek tea, Cetabs tablets, Ribotabs tablets, Niamin tablets, Ormotabs tablets, Kordel-A capsules, and Minerals Plus Chlorophyll and Vitamin D tablets. U. S. v. 269 Packages, etc. (and 1 other seizure action).
- 3664. Alleged misbranding of Kordel-E capsules, Aminex tablets, Fero-B-Plex tablets, and Garlic Plus tablets. U. S. v. 1 Case, etc.
- 14294: Misbranding of Gotu Kola tablets, Pantomin tablets, Panto-Plus, Ribotabs tablets, Minerals Plus tablets, Everm wheat germ oil capsules, Cetabs tablets, Fero-B-Plex tablets, Kordel tablets, and Niamin tablets. U. S. v. 134 Packages, etc. (and 3 other seizure actions).
In 1994, the Vermont Attorney General accused Lowensen International, Inc., and its president, Louis-Martin Pilote, of marketing an alleged weight-loss program with false claims. The complaint stated: Lowensen, headquartered in Quebec, Canada, was doing business as the National Medical Research Institute NMRI), which received product orders and payments through a mail-drop arrangement in Swanton, Vermont. …
In 1994, the Vermont Attorney General accused Lowensen International, Inc., and its president, Louis-Martin Pilote, of marketing an alleged weight-loss program with false claims. The complaint stated:
- Lowensen, headquartered in Quebec, Canada, was doing business as the National Medical Research Institute NMRI), which received product orders and payments through a mail-drop arrangement in Swanton, Vermont.
- NMRI marketed a diet supplement called “Panderyl,” a cream referred to as “P5B12 Cream,” and a book called Doctor, How Come I can’t Lose Weight, said to have been written by Alan Lacey, M.D.
- Promotional literature described Lacey as NMRI’s nutrition consultant and included a letter from him plus a documents that included his photograph and listed his credentials. However, Dr. Lacey did not exist.
- The promotional material falsely claimed that users of the program were likely to experience permanent weight loss of 4 pounds a week without limiting food intake.
- Prospective buyers were told they they could try the program free of charge by sending a postdated check that would be held for 21 days and returned uncashed if they were not satisfied with their results. However, the checks were routinely cashed.
In 1995, the case was settled with a consent agreement under which Pilote and his company denied wrongdoing but agreed to:
- Permanently refrain from doing business in Vermont.
- Pay a $50,000 penalty under Vermont’s Consumer Fraud Act.
- Issue refunds to consumers who complained.
- Send a refund to all Vermont customers regardless of whether they complained.
- Cooperate with a deposition in which the details of their business operation would be explored.
Lowensen International, Inc., which was incorporated in 1993, was dissolved in 2000.Hide Full Content