RE: Fw: [CFSgroup] FW: Inquest Update - CCWG Info Bul letin - December 9, 2003

[Guest guest]

Vern, Has the jury been hearing testimony for 20 months ? sharron fuchs dc

-----Original Message-----From: Vern Saboe DC [mailto:vas@...]Sent: Wednesday, December 10, 2003 7:03 AMOregondcs Subject: Fw: [CFSgroup] FW: Inquest Update - CCWG Info Bulletin - December 9, 2003

Final summations in the Canadian stroke case now some 20 months long!

Vern Saboe, DC

Albany

[CFSgroup] FW: Inquest Update - CCWG Info Bulletin - December 9, 2003

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S. Baker, D.C., D.A.B.CO., D.A.B.F.P., D.A.B.C.C.

Rincon Chiropractic Associates

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-----Original Message-----From: chirosci-list-bounces@... [mailto:chirosci-list-bounces@...] On Behalf Of NeroSent: Tuesday, December 09, 2003 9:28 PMchirosci-list@...; chirolist@...Subject: FW: Inquest Update - CCWG Info Bulletin - December 9, 2003

Information Bulletin>From the Chiropractic Communications Working Group

Inquest, December 8, 2003 - Summations of Counsel

Mr. Danson's Summation

Today began the final week of the inquest. Each party with standing has been granted a maximum of three hours to present to the jury their final summaries and proposed recommendations. Mr. O'Marra, counsel for the Coroner, handed out copies of all parties' recommendations to the jury.

Mr. Danson, counsel for the chiropractic profession, began his final submission by reminding the five members of the jury of their solemn responsibility to the facts of this case. Likes and dislikes of one party, or one lawyer, over another, said Mr. Danson, must not enter into your decision. He reminded them they are the voice of the community, and thanked them for their time and dedication for the past 20 months.

Mr. Danson then asked the jury to imagine themselves in his clients' position. He reminded them that chiropractors have much at stake in this process, and just how damaging the fear-mongering and inaccurate information has been to the livelihoods of chiropractors and their families He implored the jury to look at only the facts and the science in this case. Largely by directly quoting from the inquest transcripts themselves, Mr. Danson reminded the jury of just some of the fear-mongering to which he referred:

Dr. Norris conceded that he didn't follow proper scientific protocols in his SPONTADS study, that the Stroke Consortium findings were speculative, and that he used these results to spread fear and misinformation in the national media;

Dr. Deck, one of the two pathologists who worked on this case from the Coroner's office, had no knowledge of chiropractic neck adjustments and admitted that his findings were nothing but speculative opinion, and that Dr. Cairns, the Deputy Chief Coroner, Investigations, for the Province of Ontario, found Dr. Deck's work in this case to be incompetent.

Mr. Danson then moved to the biomechanics of neck adjustments. He reminded the jury that only one expert, Dr. Herzog, was qualified as a witness in biomechanics. Dr. Herzog's research into the force of a neck adjustment on the vertebral artery shows that the Spinal Manipulative Therapy elongates the vertebral artery only half as much as the everyday activity of turning ones own neck. Neither of these two activities elongates the vertebral artery to the point that there are any forces applied to the artery. This, contended Mr. Danson, is common sense. The ¼ billion neck adjustments that are performed each year in North America are within the natural range of motion and are safe because our bodies are built to move this way.

In reviewing the records of Dr. Knapp, Ms. ' physician, Mr. Danson reminded the jury of her long-running case history of pain on the right side of her neck. As such, it was for right-side neck pain that she was receiving treatment from the chiropractor in 1996. Yet, it was in her left vertebral artery that those against chiropractic have looked for-but have not found-a dissection. This illustrates, argued Mr. Danson, that personal opinions, formed with no knowledge of the biomechanics of a chiropractic neck adjustment, only serve to mislead. Indeed, were Ms. Oakley's contentions at this inquest true, i.e., a right-side adjustment resulting left-side trauma, it would make this the first case of its kind, ever.

Of course, said Mr. Danson, there was no trauma, and no dissection found. Why? Because this is a simple case. She died of natural causes.

Mr. Danson reminded the jury that expert after expert testified that a natural disease process of atherosclerosis was the cause of Ms. ' unfortunate death. Although rare in a woman only 44-years-old, she was, as Dr. Upton said, and Drs. Whitwell, and Ramsey agreed, a "walking time bomb." Most experts agreed that she had "dangerously high" or "elevated" blood pressure, hypertension, a family history of high blood pressure, was a smoker, drank up to four rum and cokes a night, and had frequent migraines-and all agreed that in combination these factors placed her in a very high risk category for stroke. Ultimately, no dissection was found and, even according Dr. Norris, without a dissection there is no trauma and chiropractic cannot be implicated. "Natural causes" is the only cause of death that fits.

Furthermore, Dr. Hall testified that 90% of the-albeit exceedingly rare-cases of stroke following a chiropractic neck adjustment occur within 48 hours of the treatment. Given this, Mr. Danson turned his attention to the full week that passed between the adjustment and Ms. ' first stroke. Mr. Danson reviewed the testimony of Ms. Snow, Ms. ' direct supervisor at her place of work, and Ms. , the company nurse. Both told the court that they were sure Ms. was at work and performing her job normally during the entire week in question; Ms. had a very high absentee rate due to frequent illness and her attendance was being closely monitored In addition, Ms. Snow had independent recollection of Ms. ' attendance at work. Ms. Snow visited Ms. in hospital following her stroke and remembered being shocked as Ms. had seemed well only the Friday beforehand. This evidence was in seeming contradiction to that given by Mr. Sweeney, Ms. ' common-law partner, who provided four statements to this inquest. The first three were at the request of the Coroner and the fourth was, Mr. Danson told the jury, probably dictated to him by Dr. Katz, a known anti-chiropractic zealot. Under Dr. Katz' direction Mr. Sweeney contended that Ms. was "having strokes all week long." However, under oath he told the court that this was not what he meant. "They got caught," said Mr. Danson, calling this activity fraudulent and a perversion of justice. He implored the jury to recognize Dr. Katz for what he is and to give no credence to evidence prepared by those so obviously under his control.

With regards to the issue of informed consent, at over 80% compliance, Mr. Danson told the court chiropractors should be applauded for their leadership in this area. Given that the risk is so rare, their acknowledgment of the issue and efforts to inform the public about the risks-however rare-is unparalleled by any other heath care profession.

Finally, Mr. Danson then recalled the evidence heard by the jury from Dr. Sackett-the world-leading epidemiologist. Dr. Sackett told the court that no research exists that can aid this jury in determining a causal link between the neck adjustment and Ms. ' stroke. Such research would have to be a Level I (such as the Framingham study) or a Level II study. The best here is the Rothwell study which is-according to the authors themselves-problematic and is only a Level III retrospective study. As such it cannot provide a causal link. Any link using existing research, therefore, may only be temporal. Dr. Sackett also told this inquest of the danger of accepting expert opinions as truth where no science exists.

On behalf of the profession Mr. Danson tabled recommendations that dealt with inter-professional cooperation; the proffering of expert evidence and that experts must stick to their fields of expertise when giving testimony; government funding for research.

Mr. Danson ended his summation by asking the jury to find that Ms. died of natural causes and to be fair and practical when making their recommendations.

Mr 's Summation

Mr. , counsel for the chiropractor, commenced his summation to the jury by stating this was a simple case which had been made to appear complicated due to testimony from some witnesses based on opinion, speculation and conjecture as opposed to the facts. He urged the jurors not to allow themselves to be confused and encouraged them to objectively assess the big picture, to examine the facts, and to make decisions on what made sense

He rhetorically asked the jurors if they were angry at the length of time they had spent at the inquest and wondered if it had been necessary. He noted that chiropractic neck manipulation had been thoroughly examined and that an attempt had been made to find a causal link between SMT and stroke. He noted that over 260 exhibits had been presented during the inquest and he encouraged the jurors to look for the disclaimers in these reports and to use common sense when evaluating them since none of them establishes a causative link.

Speaking generally of scientific research, Mr. drew a distinction between published reports which conclude that further investigation into an issue is warranted in order to determine if there is a possibility of a causative link and those which attempt to establish a causative link. He specifically noted that the Rothwell study was the best of a bad lot and it clearly stated that it did not deal with causation. He reminded the jurors of Dr. Sackett's evidence and urged them not to assign weight to SMT/stroke studies which identified temporal associations only.

Mr. turned to the site of Ms. ' pain noting the records of the chiropractor, the family physician, and the hospital all recorded this as being on the right side of her neck. The chiropractor had treated her only on the right side as this is where she was experiencing the discomfort that prompted her to see him, yet the jury was being asked to believe the treatment caused a dissection in her left vertebral artery - a dissection which no one has been able to find in the physical evidence. Dr. Herzog, the only witness qualified as an expert on the mechanics of adjustment, clearly established that an adjustment provided no stress to an artery, and, Mr. stated, no testimony was brought forward to refute this position

Mr. rhetorically asked the jurors if they were not angry about the speculations and fear mongering related to neck adjustment itself. Witness after witness clearly testified that they had no knowledge of chiropractic theory or practice, had no training in its mechanics or outcomes yet they managed to proffer opinions related to the safety of chiropractic and its alleged causation of stroke.

Turning to the evidence provided by Ms. Ford and Mr. Sweeney, Mr. noted that it was unreliable given its inconsistencies and the fact that the family had launched civil proceedings for damages against the chiropractor. An analysis of the records demonstrates it was inconceivable that the chiropractor would reach across his office desk and forcibly adjust Ms. . This is a depiction which could only have come from Ms. Ford or Mr. Sweeney and which would be to their advantage in terms of supporting their civil proceedings.

Mr. stated that if the jurors accepted the evidence of Ms. Ford and Mr. Sweeney that the chiropractor had done something unusual to Ms. , then a forum other than an inquest would be the appropriate means of proceeding. But if the jurors rejected the allegation that the chiropractor had done something unusual, then the evidence of Ms. Ford and Mr. Sweeney would have no credibility. Further, neither Ms. Ford nor Mr. Sweeney were in the room with Ms. at the time of the purported unusual treatment and their subsequent statements and testimony were inconsistent. Mr. pointed out that no evidence had been presented that Ms. ever complained of unusual treatment by the chiropractor.

Mr. again asked rhetorically whether anyone had assessed the claims of the family as being anything other than allegations and accusations and wondered whether it was just or fair to call an inquest and to put a whole profession under scrutiny. He stated that while all counsel expressed regret at Ms. ' death and its impact on her family, the chiropractor and his family had also suffered greatly given that they have been caught up in a crusade against the chiropractic profession by the same external forces which manipulated the family.

Mr. said that most lawsuits and inquests have common sense and reason attached to them and asked the jurors to distinguish between fact and fiction, assess ulterior motives, and be unforgiving of anything that defies reason or does not make sense, these being the cornerstones of our jury system.

While inquest juries must answer the five questions before them and they may also make recommendations to avoid death in similar circumstances, Mr. felt that no chiropractic recommendations are necessary in this case if death by natural causes were determined. Mr. asked the jurors to assess Ms. Oakley's anticipated numerous recommendations as not being relevant to this case, but as being aimed at discrediting the chiropractic profession.

Turning to the five questions the jurors must answer, Mr. stated that there was no confusion regarding the identity of the deceased or when, where, or how the death occurred. The only remaining question was by what means, that is, suicide, homicide, accident, natural causes, or undetermined. It is clear that suicide and homicide are not applicable. Regarding the remaining options, Mr. said that the jury should look to the bigger picture of the unfortunate death of a relatively young woman and to her life as a whole. She was a person who suffered personal difficulties as noted in the records of her family physician, employer, and the hospital. She was a victim of physical abuse who experienced numerous medical difficulties including extensive atherosclerosis and, by 44 years of age, was, in the opinion of medical experts, a "walking time bomb" for stroke. She was under constant medical treatment, often did not take the medication prescribed and was not a well person. The evidence is clear that her death resulted from natural causes, said Mr. .

There was no dissection, but "the hunt was on" to find one when a classic dissection could not be identified. Dr. Deck said he was 60% certain of a causal link in December 1996 before the autopsy was concluded, and was more certain when he wrote to the family lawyer in June 1999. Yet he never looked at the chiropractic records or determined what adjustments had taken place or which side of her neck had been adjusted and he knew nothing of biomechanics. Mr. said that Dr. Deck's testimony tried to fit facts with theory and that he abandoned facts when they didn't fit the theory. He offered his opinion to the family for a fee, suggesting he was over 90% certain, but without an examination of the facts. Mr. stated that the jury was being asked to believe that even if no evidence of a dissection was found it didn't mean that one didn't exist and that the chiropractor was responsible for it. He said the jury was further asked to believe in an explanation of both "good" and "bad" plaque that defied logic, and again rhetorically asked if the jurors wanted any "good" plaque themselves.

Mr. stated that, in contrast, Dr. Pollanen revised his report when he realized that facts no longer supported theory. Dr. authored five letters/reports on this matter, first seeing no dissection, then in December 2002 changing his mind and reporting seeing a dissection. Dr. explained this about-turn as a result of poor equipment and lack of adequate time, but he remains the only witness to see a dissection that no one else could find. Dr. Fournasier offered an opinion without ever thinking the matter would come to court. Dr. Rathbone accused other witnesses of deliberately ignoring facts while he himself testified he was ignorant of many of the facts in this case. Mr. asked the jurors to contrast the testimony from these witnesses with the credibility of Drs. Herzog, Hall, Haldeman, Sackett, and Upton and asked them to use their reasonableness and common sense in evaluating all the evidence before them.

Mr. thanked the jurors for their attention and perseverance during the inquest. He submitted that it would be easy for them to reach an "undetermined" verdict based on witnesses' conflicting opinions, but suggested they would do better than this given their ability to assess the value of evidence, their common sense and reason.

Proceedings will re-commence on Wednesday, December 10, 2003 with counsel for the College of Chiropractors of Ontario and the family presenting summations.

Keeping in Contact

Please contact us if there has been any change in your contact information. Reach us by fax at (416) 482-3629; e-mail at infochange@...; or mail at Alumni Affairs, Canadian Memorial Chiropractic College, 1900 Bayview Avenue, Toronto, Ontario, M4G 3E6.

In the meantime, if you have questions about this bulletin, please feel free to contact us by phone, fax or e-mail using the contact information listed in this bulletin.

The Communications Working Group is comprised of the following organizations:

The Canadian Chiropractic Association: Phone (416) 781-5656; Toll-free 1-800-668-2076; website www.ccachiro.org; e-mail ccachiro@...

Ontario Chiropractic Association: Phone (905) 629-8211; Toll-free 1-877-327-2273; website www.chiropractic.on.ca; e-mail communications@...

Canadian Memorial Chiropractic College: Phone (416) 482-2340; Toll-free 1-800-669-2959; website www.cmcc.ca; e-mail communications@...

Canadian Chiropractic Protective Association: Phone (416) 781-5656; Toll-free 1-800-668-2076; e-mail CCPAcommunications@...