2/17/2012 10:40:00 AM,
Jeff D. Gorman
(CN) - A Missouri chiropractor accused of falsely telling a man he was cured of HIV is entitled to a $6.2 million judgment from the chiropractic board for its failure to conduct an impartial investigation before taking action against his license.
Gary Edwards accused six members of the Board of Chiropractic Examiners of gross negligence in their handling of Edwards' treatment of Duane Troyer.
Raised in a Mennonite family, Troyer learned in 1989 that he had contracted HIV through a blood transfusion. He was engaged to Regina Hershberger at the time, and they went ahead with their plans to marry that year, despite the protests of her family.
Edwards provided chiropractic care to Troyer and others in the Mennonite community. He advised Troyer to see traditional doctors, but he also provided nutritional counseling, which was the only treatment at the time aside from the drug AZT while patients hoped and waited for a cure.
In 1992, Regina and Duane welcomed a baby girl. Unfortunately, Regina and the baby were both diagnosed as HIV positive. Later that year, Duane died from complications of AIDS.
Years later, Regina's mother, Elizabeth Hershberger, contacted Edwards and accused him of telling Duane had he had been cured of AIDS, leading to the child's' conception and the infection of the child and her mother.
Later, an article appeared in the Kansas City Star
discussing how Regina and her daughter became infected with HIV. While Edwards was not mentioned by name in that article, another piece in the Star talked about a machine that Edwards used to diagnose Mennonite patients. The article stated that the patients were satisfied but the machine was worthless.
The Board of Chiropractic Examiners got word of the media attention surrounding Edwards and hired a man named William Burton to investigate the allegations. However, the opinion notes, Burton stated that he was not hired to conduct a fair investigation.
"It wasn't my job to establish that he wasn't doing those things. It was my job to establish that he was doing those things," Burton said during the original trial.
He met with Regina and Hershberger, and they filed complaints against Edwards' chiropractic license. Burton also talked to the writer of the Kansas City Star
Hershberger's complaint claimed that Edwards told her in 1991 that Duane was cured of HIV. However, when the Board learned that conversation would have taken place after Regina got pregnant, the Board had Hershberger "correct" her statement to say the conversation took place in 1990.
Burton's investigation did not include a conversation with Edwards, his other patients or Duane's parents. Burton also did not ask for Duane's medical or chiropractic records.
If he had, he could have learned that Duane had known he was HIV-positive from the time of his diagnosis until her died and that Hershberger had referred her son for chiropractic treatment with Edwards after Regina and the child were diagnosed as HIV-positive.
The board filed a public complaint against Edward, and the case went to hearing and the Missouri Court of Appeals, which remanded the case for second hearing before the board dropped the complaint.
Edwards then sued the board members for gross negligence, but the trial court ruled that they were protected by sovereign immunity. However, the Missouri Supreme Court reversed the decision and allowed the case to continue.
Back in trial court, a jury decided that the board members were grossly negligent, and that Edwards was entitled to $6.2 million.
The board members appealed, but the Missouri Court of Appeals affirmed the decision in an opinion written by Judge James Welsh. He refuted the board members argument that they are not required to conduct a thorough investigation before lodging a complaint, and that they are only charged with protecting the public.
"While we agree with the board members that the public's protection is the primary purpose of professional regulation, we do not agree that means the board members owe no other duties to anyone else," he wrote.
"Indeed, (state law) recognizes that board members may be liable for gross negligence in the performance of their official duties. To whom would the board members be liable for this gross negligence? Only to the public at large? We think not," he added.