Holding the chiropractor responsible for damages under Hanson

WDC Journal Edition: Summer/Fall 2007
By: Thomas M. Devine

In the wake of the Wisconsin Supreme Court’s decision in Hanson v. American Family[1] much of the debate engaged in by the defense bar focused primarily on the effect the decision would have on the issue of causation of injury.[2] Specifically, the debate questioned whether Hanson’s holding that a plaintiff is entitled to all her claimed medical specials as a matter of law where she can prove that she sustained “an injury” and that she used ordinary care in selecting her doctor, eviscerates the requirement that the plaintiff demonstrate that the treatment was both reasonable and necessary. Despite the warranted concern regarding the causation issue, Hanson has had an unanticipated salutary effect on the law of personal injury cases.

Chiropractors can be the greatest source of excessive bills because of months of improper, excessive and unnecessary treatment. [3] Under Hanson, a jury may award the plaintiff the expenses relating to the improper, excessive and unnecessary treatment. At present, the Supreme Court has not addressed how the Hanson rationale might apply where the alleged malpractice involves providing improper, excessive and unnecessary chiropractic treatment although there is no reason to believe that it will not apply.[4] If it is malpractice, then existing Wisconsin case law provides the defendant with an avenue of relief from the excessive bills by impleading the chiropractor to recover amounts relative to the unnecessary treatment. A Kenosha County court has recently confirmed that providing alleged improper, excessive and unnecessary chiropractic treatment subjects the chiropractor to a claim by the defendant in the underlying suit.[5]

While the over-treatment in Hanson involved unnecessary medical treatment, specifically a cervical fusion, the rationale of Hanson should apply to unnecessary chiropractic treatment. If the defendant is forced to pay the plaintiff damages relating to that unnecessary treatment because of Hanson, then a defendant should be able to pursue the cost of unnecessary treatment from the chiropractor. Hansonapplied the Selleck rule to come to its conclusion that the plaintiff can recover the cost associated with malpractice.[6] The Selleck rule’s rationale is based on the principle that as between the tortfeasor and the plaintiff, the tortfeasor should bear the burden of damages attributed to the malpractice of a treating physician, where the plaintiff acted in good faith.[7] However, neither Hanson nor Selleck foreclose the defendant’s ability to recover the damages attributable to the malpractice from the party who caused the malpractice damages. The question becomes how to state a claim that will survive a motion to dismiss.

A defendant seeking to recover amounts relating to improper, excessive and unnecessary chiropractic treatment from the chiropractor must first demonstrate that the treatment constitutes malpractice. Wisconsin courts have generally recognized that providing unnecessary and improper medical treatment may serve as the basis for a malpractice claim.[8] However, the chiropractic over-treatment as malpractice differs from the traditional concept of medical malpractice in that there is no enhanced physical injury. Typically, unnecessary and expensive chiropractic treatment does nothing more than invade the plaintiff’s pocket book. Furthermore, that injury is often mitigated by a standard “assignment of claim” form that assigns the future recovery of the chiropractic expenses by the plaintiff to the chiropractor. Consequently, no actual fee is exchanged and no actual loss is incurred.

The Statutes and Administrative Code relative to the practice of chiropractic provide a basis to claim over treatment as chiropractic malpractice. The practice of chiropractic in the State of Wisconsin is governed by Chapter 446 of the Wisconsin Statutes. By virtue of holding a license from the State of Wisconsin to practice chiropractic, the chiropractor has agreed not to engage in “unprofessional conduct.”[9] The Administrative Code defines “unprofessional conduct,” in part, as “practicing in a manner which substantially departs from the standard of care ordinarily exercised by a chiropractor” or “engaging in excessive evaluation or treatment of a patient.”<[10] Further, the Administrative Code requires that the chiropractor “refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient’s condition will not be responsive to further treatment.”[11]

Thus, to the extent that the chiropractor renders improper, excessive and unnecessary chiropractic treatment, that chiropractor not only violates the ordinary standard of care, but also violates the responsibility established by the Statutes and Administrative Code. Assuming that under Hanson, the plaintiff may recover the cost relating the improper, excessive and unnecessary treatment from the defendant, the defendant should have a right of subrogation against the chiropractor.

The seminal case providing a right of recovery to the original tortfeasor as against a provider who subsequently committed malpractice is Fisher v. Milwaukee Electric Railway & Light Co.[12] In Fisher, the plaintiff sued the defendant alleging negligence. The defendant alleged that the plaintiff’s broken left wrist was easily remediable by ordinary surgical treatment, but due to the negligent and careless treatment by the treating physician, Rumph, the plaintiff sustained ischemic paralysis of the hand and forearm. Citing Selleck, the court recognized the rule that “the plaintiff may recover her entire damages from the Light Company, even though they may have been caused in part by the negligent treatment given the plaintiff by defendant Rumph.”[13] However, the liability of the doctor is:

a liability over, and arises in favor of the Light Company (defendant) by reason of the fact that the Light Company is compelled to pay damages which are primarily due to the alleged negligence of the defendant Rumph and for which the plaintiff might have maintained an action against the defendant Rumph. The Light Company, being compelled to pay these damages, is subrogated to the plaintiff’s rights against Rumph, as she may not twice recover compensation for the same injury.[14]

The Fisher court’s conclusion that the original tortfeasor’s cause of action against a provider who engaged in malpractice sounds in subrogation is supported by subsequent case law.[15]

Even with chiropractic overcharging, the damage to the defendant may be contingent since no payment has been made by the defendant.[16] However, liberal joinder considerations militate in favor of impleading the chiropractor in the underlying suit despite the contingent claim. The liberal pleading allowed under Wis Stat. § 803.05(1) and § 803.03(1) and (2), provides an ample basis to join the chiropractor in the principal case.[17] Wisconsin courts have expressed the maxim that these joinder statutes should be applied broadly and that they should encompass the situation where a chiropractor has rendered alleged improper, excessive and unnecessary treatment.[18] The chiropractor is a necessary party because he/she has an interest in the action and his/her absence may result in an inconsistent obligation on the part of the defendant. The plaintiff’s claimed damages include the treatment provided by the chiropractor. The defendant claims that this treatment was excessive and improper. Clearly, these claims share “subject matter relatedness.” Both claims will require testimony from the chiropractor concerning the circumstances surrounding the treatment of the plaintiff. Finally, the concept of judicial economy mandates that both claims be litigated together. Without the joinder of the chiropractor, the defendant will be required to file another suit in the event the jury determines that the plaintiff is entitled to recover damages for excessive and improper treatments. Requiring the second trial wastes judicial resources in rehashing the treatment to the plaintiff and it subjects the defendant to judgment on damages that are ultimately owed by another. The defendant would be forced to wait out the time to trial in the second matter while being subjected to the enforcement of the first judgment.

Fisher is also important in evaluating the joinder issue. The Fisher court was unfazed by the contingent nature of the claim and focused on the pleading available in 1920 which allowed the provider of service to be added to the litigation even though the claim was contingent.[19] In comparison to the civil rules currently in effect, the pleading rules in 1920 can hardly be described as “liberal.” However, the fact that the provider was subject to impleader in 1920, in light of the expansion of the joinder rules in the intervening years, clearly demonstrates that the contingent nature of the claim should not bar the claim against the chiropractor in the underlying lawsuit.


In the event the defense confronts the prospect of paying damages for unnecessary chiropractic treatment, the chiropractor should be added to the litigation as a party.

[1] Hanson v. American Family Mut. Ins. Co., 2006 WI 97, 294 Wis. 2d 149, 716 N.W.2d 866.

[2] Randy S. Parlee and Ahndrea R. Van Den Elzen, Hanson and IMEs: The Perils and Pitfalls of Discerning Medical Necessity, Wisconsin Civil Trial Journal, Summer/Fall 2006, at 25.

[3] Guidelines for Chiropractic Quality Assurance and Practice Parameters: Proceedings of the Mercy Center Consensus Conference, Chapter 8, (Scott Haldeman, et al., eds., 1993).

[4] The recovery of the cost under Hanson requires that the cost be malpractice otherwise the Selleck rule does not apply.

[5] Andersen v. Duncan, et al., Kenosha County Case No. 06-CV-911 (Judge Bastianelli).

[6] Hanson, 2006 WI 97, ¶22, ( citing Selleck v. Janesville, 100 Wis. 157, 75 N.W. 975 (1898)).

[7] Hanson, 2006 WI 97, ¶21 n.4, ( citing Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 285-86, 187 N.W.2d 349 (1971)).

[8] See Northwest General Hospital v. Yee, 115 Wis. 2d 59, 61-62, 339 N.W.2d 583 (1983) (“this court and other jurisdictions have found unnecessary and improper treatment to constitute malpractice.”)(citing Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015 (1923), and Hood v. Phillips, 537 S.W.2d 291 (Tex. Civ. App. 1975)).

[9] Wis. Stat. §§ 446.03 & 446.004.

[10] Wis. Admin. Code § Chir. 6.02(3) and (8) (emphasis added).

[11] Wis. Admin. Code § Chir. 6.03(4).

[12] 173 Wis. 57, 180 N.W. 269 (1920).

[13] Id.

[14] Id. (Emphasis added).

[15] Wisconsin appellate courts have consistently held that the original tortfeasor’s cause of action against a subsequent, successive tortfeasor sounds in subrogation. See, e.g.,, Noll v. Nugent, 214 Wis. 204, 252 N.W.574 (1934); Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951). In Hartley v. St. Francis Hospital,, 24 Wis. 2d 396,401-401a, 129 N.W.2d 235 (1964), the court seemed to depart from precedent establishing that the cause of action sounded in subrogation but withdrew the language in the decision on re-hearing.

[16] Cf. Muchow v. Goding, 198 Wis. 2d 609, 626, 544 N.W.2d 218 (Ct. App. 1995)(holding that, typically, payment is the sine qua non for subrogation).

[17] The statute governing third-party practice, Wis. Stat. § 803.05(1), provides the following:

[A] defending party, as a 3rd-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the defending party for all or part of the plaintiff’s claim against the defending party, or who is a necessary party under s. 803.03

Wis. Stat § 803.03 governs the joinder of persons needed for just and complete adjudication, and provides:

(1) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:

(a) In the person’s absence complete relief cannot be accorded among those already parties; or

(b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may:

1. As a practical matter impair or impede the person’s ability to protect that interest; or

2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.

(2) Claims arising by subrogation, derivation and assignment.

(a) Joinder of related claims. A party asserting a claim for affirmative relief shall join as parties to the action all persons who … have claims based upon … assignment of part of the principal claim ….

[18] See, e.g., Kluth v. General Cas. Co. of Wisconsin, 178 Wis. 2d 808, 817-18, 505 N.W.2d 442 (Ct. App. 1993), holding:

Wisconsin's permissive joinder statute should be interpreted broadly to encompass situations in which an injury caused by a negligent tortfeasor is aggravated in a later incident involving a second tortfeasor …

Rules governing permissive joinder should be interpreted to allow “the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged” … The purpose of the permissive joinder statute is to avoid multiple trials involving identical or similar issues … The “subject matter relatedness” of the events constituting a claim should be an important factor in determining the propriety of joinder.

[19] 173 Wis. 57 at 62.