By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
Kristin Kyle de Bautista, Esq.
Los Angeles
News: An Indiana state appeals court dismissed a lawsuit accusing a chiropractor of fracturing a woman’s spine, which allegedly led to her death. The court found the plaintiff expert’s medical opinion faulty because it was written by a physical therapist, not a physician. The three-judge panel noted the plaintiff failed to refute the defendant’s claims the woman’s death was a result of late-stage breast cancer, which spread to and weakened her bones, rather than the chiropractic treatment.
The plaintiff relied on an affidavit written by a physical therapist, claiming the chiropractor “caused or contributed” to the woman’s injuries. “[Plaintiff] claims that [the physical therapist] was qualified to opine on whether [the chiropractor’s] treatment of [the woman] caused her to fracture her C7 vertebra or made the chance of that fracture more likely,” the appellate judges wrote. “But we conclude that those are complex medical questions requiring expert testimony.” The panel noted the physical therapist is “not a physician and he is not licensed to practice medicine. He is, therefore, not qualified to render an opinion.” The 10-page opinion affirmed the lower court’s summary judgment award to the chiropractor.
Background: In July 2018, a woman visited a chiropractor after experiencing moderate neck and shoulder pain. The chiropractor testified the woman had “segmental and somatic dysfunction of cervical region, segmental and somatic dysfunction of thoracic region, radiculopathy of thoracic region, and segmental and somatic dysfunction of lumbar region.” He focused treatment on her spine.
On Oct. 1, 2018, the patient again visited the chiropractor. He performed an adjustment with a combination of electrical stimulation and weights. The patient experienced “a sudden onset of neck pain, weakness, and paresthesia (numbness and tingling) of her fourth and fifth fingers on her left hand.” However, she did not immediately see a medical doctor. Instead, she returned to the chiropractor two days later, described her pain as “a 10,” and continued treatment.
On Oct. 4, the patient visited her regular physician for the pain. He ordered an MRI of her cervical spine, which showed “a 40% compression fracture” at the C7 vertebra “as well as evidence of metastatic disease at [the] C6, C7, T1, and T2” vertebrae. The patient’s physician diagnosed her with a “compression fracture of [the] cervical spine; cancer metastatic to bone; and cervicalgia.”
The physician urged the patient to visit the Terre Haute Regional Hospital ED, where he asked a neurosurgeon to meet her. The neurosurgeon diagnosed the woman with “a metastatic tumor with destruction of C7 (front and back)” and “posterior compression of C6-C7 and T1 nerve roots.” The patient underwent surgery on Oct. 10 and Oct. 14, followed by four weeks of radiation therapy. On Jan. 8, 2019, the woman died.
The plaintiff, as the personal representative to the patient’s estate, filed a proposed complaint with the Indiana Department of Insurance against the chiropractor. A medical review panel unanimously agreed the chiropractor “failed to comply with the appropriate standard of care” in his treatment of the patient’s pain, yet the panel was “unable to render an opinion as to whether the conduct complained of was or was not a factor” in her claim for damages. The plaintiff filed a malpractice lawsuit.
The defendant chiropractor moved for summary judgment and submitted two supporting affidavits, one from a neurosurgeon, and one from a hematologist and oncologist. Each affidavit concluded the woman’s death was indeed premature and untimely, but only due to her malignancy. No action or inaction of any of the healthcare providers led to, promoted, or accelerated her unfortunate outcome.
The plaintiff submitted an affidavit from a physical therapist who opined the defendant failed to render appropriate care and treatment, and that his “failure to properly examine, diagnose, order diagnostic testing, and property treat the condition presented ... caused or contributed to her injuries, specifically the fracturing of her C7 vertebra and subsequent pain and suffering, or at least delayed appropriate care.” The defendant moved to dismiss the physical therapist’s affidavit, arguing he was unqualified to render an opinion on medical causation. The trial court granted the defendant’s motion and entered summary judgment in his favor. The appellate judges affirmed the decision.
What this means to you: This case shows the importance of enlisting a properly qualified expert witness. When a plaintiff files a medical negligence claim, he or she must provide expert testimony to prove not only was the defendant negligent, but also the defendant’s negligence caused the plaintiff’s injury.
With objective injuries, the plaintiff is competent to testify about the injury. This testimony may be sufficient for the jury to render a verdict without expert medical testimony. But the question of the causal connection between a permanent condition, an injury, and a pre-existing condition is a complicated medical question. If a layperson cannot understand the issue of cause, expert witness testimony is necessary.
Expert witnesses can draw inferences from the facts a layperson could not. In most states, the rules of evidence require the requisite knowledge, skill, experience, training, or education for expert witnesses. Experts also must possess sufficient skill in the area of testimony before he or she can offer opinions. Attorneys must show the expert is competent.
Here, to establish a genuine issue of material fact on the question of medical causation, the plaintiff submitted the affidavit of a physical therapist, claiming he was qualified to testify on whether the chiropractor’s treatment caused the patient’s fracture or made the chance of that fracture more likely. The appeals court correctly concluded those are complex medical questions requiring expert testimony. A physical therapist who is not a physician and is not licensed to practice medicine is not qualified to render a medical causation opinion.
The plaintiff also argued part of her allegations included the patient’s pain and suffering, and the physical therapist was qualified to testify as to whether the chiropractor’s treatment may have caused or aggravated that pain and suffering. The appeals court again found the plaintiff’s argument was mistaken. It noted pain is a subjective experience of an underlying condition, and where a plaintiff’s injuries are subjective in nature, expert medical testimony is required to prove causation.
In a malpractice action, retaining the right expert is critically important. As demonstrated here, an unbelievable expert, or the wrong expert, can be fatal for a care provider’s defense. Similarly, evaluating and challenging an opposing party’s expert may be a viable tactic. Here, the court found the version offered by the chiropractor’s experts to be reliable, whereas the opinion of plaintiff’s expert was dismissed, and no credible challenge was mounted. The selection and use of experts made all the difference in successfully defending this malpractice action.
REFERENCE
- Decided Dec. 14, 2022, in the Indiana Court of Appeals, Case Number 22A-PL-1532.
This case shows the importance of enlisting a properly qualified expert witness. When a plaintiff files a medical negligence claim, he or she must provide expert testimony to prove not only was the defendant negligent, but also the defendant’s negligence caused the plaintiff’s injury.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content