COA: Chiropractors not qualified to render opinions on ‘complex’ causation issues

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A medical malpractice case against a Franklin County chiropractor must proceed to trial after the Indiana Court of Appeals held Wednesday that chiropractors, including those on medical review panels, are not qualified to render opinions on the cause of injuries when a case involves a “complex” causation issue.

After Craig Totton broke multiple ribs and fractured his ankle in a motorcycle accident in September 2009, he started receiving treatments from Dr. Daniel P. Bukofchan at Franklin County Chiropractic Clinic. After one visit at which Bukofchan “snapped” Totton’s neck, Totton said he experienced sharp pain and a progressive weakening in his left arm.

Then in December 2010, an MRI showed a herniated disc in Totton’s neck, which required surgery. He filed a proposed medical malpractice complaint against Bukofchan and the clinic, alleging the doctor had “carelessly, negligently, and unskillfully examined and treated Totton and that as a direct and proximate result, he suffered personal injuries and an aggravation of a preexisting injury.”

However, a medical review panel consisting of three chiropractors issued an opinion in 2015 finding Bukofchan’s treatment did not fail to meet the applicable standard of care and “was not a factor of the resultant damages.” Totton then filed his complaint in Franklin Circuit Court, and Bukofchan moved for summary judgment.

In opposition to that motion, Totton designated the affidavit of Guy S. DiMartino, a chiropractor who said Bukofchan failed to meet the applicable standard of care and caused or substantially contributed to Totton’s injuries.

Bukofchan argued DiMartino was not qualified to provide expert testimony on the causation of Totton’s injuries, and the trial court agreed. Summary judgment was entered in favor of Bukofchan, with the court finding “…chiropractors are more akin to nurses in that they receive limited medical licenses and are therefore not qualified to offer expert testimony as to the medical cause of injuries.”

Totton appealed in Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic, 24A01-1612-CT-2849, arguing DiMartino is qualified to render a causation opinion under Indiana Evidence Rule 702.  In a Wednesday opinion reversing the grant of summary judgment, Indiana Court of Appeals Chief Judge Nancy Vaidik said “there is not a blanket rule that prohibits non-physician healthcare providers from qualifying as expert witnesses as to medical causation under Evidence Rule 702.”

For example, Vaidik pointed to the case of Curts v. Miller’s Health Systems, 972 N.E.2d 966 (Ind. Ct. App. 2012), in which the court held non-physician health care providers can give a causation opinion if the issue is not complex. However, if an issue is complex and a chiropractor cannot render an opinion, then chiropractors sitting on medical review panels are likewise unqualified.

Drawing on precedent from Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43 (Ind. Ct. App. 2010), Vaidik said “the requirements of Evidence Rule 702 have not been met given the complex causation issues present in this case,” so “the unanimous opinion of the all-chiropractor medical review panel cannot be used as evidence the Dr. Bukofchan did not cause Totton’s injuries.”

While the panel’s opinion can be used as evidence Bukofchan met the standard of care, Totton “created a genuine issue of material fact…by designating the affidavit of Dr. DiMartino.” Thus, the entry of summary judgment for Bukofchan was reversed and the case was remanded for trial.

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