Chiropractor Sued for Battery
Stephen Barrett, M.D.
In 2006, Phyllis A. Epstein of Rockville, Maryland sued chiropractor Philip Golinsky for battery, failure of informed consent, and negligence. The complaint (shown below) states that Epstein had consulted Golinsky in response to a "free visit" offer. After massaging her shoulders, he suddenly and without notice twisted her neck at high velocity, causing her to feel lightheaded. The next morning, she awoke with limited feeling in her arms and legs and pain in her neck and back that worsened as time went on. When she sought medical care, the doctors concluded that the high-velocity manipulations of her neck and upper body had caused nerve damage, spinal cord irritation, and musculoskeletal injuries. In 2008, the lawsuit was settled with undisclosed terms. Golinsky's Web site states that "a body will function better under every circumstance
when its subluxations have been removed."
V I R G I N I A:
IN THE CIRCUIT COURT FOR FAIRFAX COUNTY
PHYLLIS A. EPSTEIN
PHILIP D. GOLINSKY, D.C.
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Civil Action No. CL 2006-3502 |
COMPLAINT
(Battery; Failure of Informed Consent; Chiropractic Negligence)
1. Plaintiff Phyllis A. Epstein is an adult citizen and a resident of the State of Maryland.
2. Defendant Philip D. Golinsky, D.C., upon information and belief, is an adult citizen and a resident of the Commonwealth of Virginia.
3. Defendant, at all times pertinent hereto, has practiced chiropractic in Virginia and has held himself out to the public as a doctor skilled in chiropractic medicine.
4. On or about March 22, 2004, plaintiff responded to defendant’s repeated offers and enticements to visit his office in Herndon, Virginia for a chiropractic consultation.
5. At that time, plaintiff was in excellent health without any physical ailments, but agreed to defendant’s repeated solicitations for her business because she was promised a “free” visit and was convinced by defendant that his treatment would provide a pain-free benefit to her, such as a reduction of what defendant contended was plaintiff’s stress level.
6. Plaintiff was not then aware what chiropractic was or how it was administered, and thought she would be obtaining a massage.
7. At that time, after massaging plaintiff’s shoulders, defendant suddenly and without notice violently twisted plaintiff’s head and neck at high velocity, causing cracking sounds and a disturbing sensation.
8. Defendant also pushed down hard on plaintiff’s mid-back while she was laying on her stomach, also causing strange sounds and discomfort to plaintiff.
9. Plaintiff soon began to feel light-headed and uncomfortable. Defendant assured her she would be fine and defendant urged her to make another appointment, which she declined to do.
10. Plaintiff felt in worse pain as the day of treatment progressed.
11. The next morning, plaintiff awoke with limited feeling in her extremities and extreme pain in her neck and back.
12. Plaintiff contacted defendant that morning about her condition and was assured by him that she had nothing to worry about as these symptoms appeared in a small percentage of his clients.
13. Over the next several days, plaintiff’s symptoms did not resolve, but defendant continued to assure her that she would be alright.
14. Eventually, plaintiff sought care from medical doctors, who concluded that defendant’s high velocity manipulations of plaintiff’s neck and upper body caused, inter alia, nerve damage, irritation to her spinal cord, and muscular-skeletal injuries.
15. Plaintiff’s injuries became worse and have continued to the present, manifested by severe pain in her neck, back, limbs and body, loss of sensation in her limbs, and misalignment of her vertebrae.
16. As a result of the injuries inflicted by defendant’s chiropractic manipulations, plaintiff has undergone continuous and rigorous medical care for nearly two years with ongoing care required in the future, and has been unable to work for a substantial amount of that time.
COUNT ONE
(Battery)
17. Plaintiff adopts and incorporates in this Count by reference paragraphs 1 through 16 herein.
18. The violent, high velocity manipulations of plaintiff’s body were intentionally performed by defendant without seeking or obtaining the consent of plaintiff.
19. Defendant failed to obtain from plaintiff a consent-to-treat form signed by plaintiff or to otherwise secure a record of consent.
20. To the extent that implied consent to touching for the purpose of massage may have been inferred by defendant, the scope of any such implied consent was grossly exceeded by defendant in conducting high velocity cervical manipulations on plaintiff, thereby committing battery.
21. As a direct and proximate result of defendant's battery upon plaintiff, and through no fault of her own, plaintiff has sustained and will continue to suffer severe and permanent bodily injury; has undergone and will in the future undergo medical treatment, testing, procedures and, potentially, surgeries; has incurred and will incur great mental, emotional and physical anguish, pain and suffering; has sustained and will continue to suffer adverse impact on her quality of life; has incurred and will incur medical and other expenses; has incurred and will incur loss of earning and of earning capacity; and has been and will be otherwise injured and damaged. WHEREFORE, plaintiff demands judgment against defendant for damages in the amount of One Million, Eight Hundred Thousand Dollars ($1,800,000) plus interest, costs, and such other and further relief as the Court may deem just and proper.
COUNT TWO
(Failure to Obtain Informed Consent for Treatment)
22. Plaintiff adopts and incorporates in this Count by reference paragraphs 1 through 16 and 18 through 20 herein.
23. Defendant had a duty to plaintiff to secure her fully informed consent to treatment with high velocity cervical manipulations so plaintiff could assess the risks and any potential benefits of such procedures before submitting her body to them.
24. Defendant had a duty to disclose to plaintiff the information that a reasonable medical practitioner would disclose to a client under the same or similar circumstances.
25. Defendant did not discuss with plaintiff any of the risks associated with high velocity cervical manipulations, including, inter alia, the risk of nerve injury, stroke, spinal cord irritation, and muscular-skeletal injuries.
26. Defendant did not discuss with plaintiff the alternatives to his treatment or the lack of necessity of such treatment given the lack of symptoms manifested by plaintiff.
27. In the weeks prior to his treatment, defendant repeatedly urged plaintiff to come to his office for a “free” visit, but plaintiff was disinclined to do so because she did not care for the tactics of a health care provider hawking his services and was in excellent health without the need for chiropractic treatment of any kind. However, plaintiff ultimately gave into defendant’s persuasion and decided to make an office visit.
28. Once in defendant’s office, plaintiff was surprised and “put off” by the fact that defendant asked for her insurance information for what was supposed to be a free visit.
29. Given the foregoing facts, plaintiff was a reluctant subject of defendant’s services even though she understood them to consist essentially of massage therapy.
30. Considering plaintiff’s foregoing hesitations, if she had been advised by defendant of the risks of his treatment, she would not have submitted to any treatment by him.
31. Any reasonable person in the same or similar circumstances as plaintiff would not have submitted to any treatment by defendant.
32. Defendant’s failure to make the foregoing disclosures to plaintiff constituted a breach of duty to plaintiff to provide a client with the information that a reasonable medical practitioner would disclose to a client under the same or similar circumstances.
33. Plaintiff was in no way contributorily negligent and relied upon the expertise of defendant to adequately inform her if there were any risks associated with defendant’s treatment, especially given plaintiff’s lack of need for treatment.
34. In failing to obtain plaintiff’s fully informed consent to his treatment, defendant breached his duty to defendant, breached his legal, ethical and moral obligations as a health care provider to defendant, violated the standards he must follow in dealing with chiropractic clients, and failed to follow the standard of care required of health care providers such as chiropractors.
35. As a direct and proximate result of defendant's failure to fully inform plaintiff and obtain her informed consent, she underwent high velocity cervical manipulations to which she did not provide informed consent and which were a direct cause of the injuries alleged herein.
36. As a result of defendant’s failure to obtain plaintiff’s informed consent, and through no fault of her own, plaintiff has sustained and will continue to suffer severe and permanent bodily injury; has undergone and will in the future undergo medical treatment, testing, procedures and, potentially, surgeries; has incurred and will incur great mental, emotional and physical anguish, pain and suffering; has sustained and will continue to suffer adverse impact on her quality of life; has incurred and will incur medical and other expenses; has incurred and will incur loss of earning and of earning capacity; and has been and will be otherwise injured and damaged.
WHEREFORE, plaintiff demands judgment against defendant for damages in the amount of One Million, Eight Hundred Thousand Dollars ($1,800,000) plus interest, costs, and such other and further relief as the Court may deem just and proper.
COUNT THREE
(Chiropractic Negligence)
37. Plaintiff adopts and incorporates in this Count by reference paragraphs 1 through 16 herein.
38. In soliciting plaintiff’s business, defendant represented himself as having particular expertise in chiropractic care.
39. Upon information and belief, defendant's education, training and experience in chiropractic care, especially in high velocity cervical manipulations, was deficient.
40. When defendant performed high velocity cervical manipulations on plaintiff, she sustained avoidable and unnecessary injuries, including, but not limited to, spinal cord irritation, nerve injuries, neck and upper back injuries, radicular nerve injuries, musculoskeletal injuries and other damages to her body.
41. In undertaking to treat plaintiff, defendant agreed to provide and had a duty to possess and exercise the degree of learning, skill and care as is commonly possessed and exercised by reputable health care providers practicing as chiropractors in this Commonwealth and involved in the treatment of patients such as plaintiff. This duty is hereinafter referred to as the "standard of care."
42. Upon information and belief, defendant's acts and omissions in the treatment and care of plaintiff were negligent and in breach of the standard of care.
43. Defendant was negligent and breached the standard of care, inter alia, in failing to employ standard and expected chiropractic techniques only to the extent necessary to address plaintiff’s physical needs; in utilizing high velocity cervical manipulations unnecessarily; in performing such manipulations outside the standard of care; in causing injuries to plaintiff as alleged herein; in failing to determine if plaintiff was a proper candidate for the sort of chiropractic treatment administered by defendant; in failing to treat plaintiff properly following her report to him of her injuries; in failing to refer plaintiff in a prompt manner to other health care providers better able to attend to plaintiff’s injuries; in failing to properly investigate and diagnose after plaintiff's treatment the injuries sustained by plaintiff during defendant’s treatment; in failing to make a timely diagnosis of plaintiff's injuries so as to enable her to arrange alternative care with a health care provider other than defendant; in failing to obtain proper consultation and assistance from other health care professionals in a timely manner in connection with plaintiff's care and injuries; in failing to secure the proper education, experience, skill and credentials for the treatment rendered to plaintiff; in failing to disclose to plaintiff defendant's degree of education, experience, skill and credentials for performance of the treatment rendered to her; and in otherwise failing to provide proper care and treatment to plaintiff.
44. As a result of defendant’s breach of the standard of care, and through no fault of plaintiff, she has sustained and will continue to suffer severe and permanent bodily injury; has undergone and will in the future undergo medical treatment, testing, procedures and, potentially, surgeries; has incurred and will incur great mental, emotional and physical anguish, pain and suffering; has sustained and will continue to suffer adverse impact on her quality of life; has incurred and will incur medical and other expenses; has incurred and will incur loss of earning and of earning capacity; and has been and will be otherwise injured and damaged.
WHEREFORE, plaintiff demands judgment against defendant for damages in the amount of One Million, Eight Hundred Thousand Dollars ($1,800,000) plus interest, costs, and such other and further relief as the Court may deem just and proper.
Respectfully submitted,
_______________________________
Richard E. Jordan, VA Bar 25270
Hamilton and Hamilton,
LLP Suite 410
1900 M Street, N.W.
Washington, D.C. 20036
202-463-8282
Fax 202-463-7281
Counsel for Plaintiff
JURY DEMAND
Plaintiff demands a trial by jury as to all issues herein.
_______________________________
Richard E. Jordan
This page was posted on March 25, 2008..