Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic , 2017 Ind. App. LEXIS 254 ( 2017 )


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  •                                                                                FILED
    Jun 14 2017, 9:35 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
    Robert A. Montgomery                                       Peter H. Pogue
    Law Offices of Robert Montgomery                           Daniel B. Gearhart
    Munster, Indiana                                           Justin C. Kuhn
    Schultz & Pogue, LLP
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Craig Totton,                                              June 14, 2017
    Appellant-Petitioner,                                      Court of Appeals Case No.
    24A01-1612-CT-2849
    v.                                                 Appeal from the Franklin Circuit
    Court
    Daniel P. Bukofchan, D.C., and                             The Honorable Clay M.
    Franklin County Chiropractic                               Kellerman, Judge
    Clinic,                                                    Trial Court Cause No.
    Appellees-Respondents                                      24C02-1512-CT-808
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017                           Page 1 of 9
    Case Summary
    [1]   In this medical-malpractice case against a chiropractor, the medical review
    panel, which consisted of three chiropractors, found that the defendant-
    chiropractor met the applicable standard of care and did not cause the plaintiff’s
    injuries. The defendant-chiropractor moved for summary judgment, and in
    opposition the plaintiff designated an affidavit from his own chiropractor, who
    opined that the defendant-chiropractor did not meet the applicable standard of
    care and caused the plaintiff’s injuries. The trial court entered summary
    judgment in favor of the defendant-chiropractor because it found that
    chiropractors are not qualified to give expert opinions as to the medical cause of
    injuries.
    [2]   A non-physician healthcare provider, such as a chiropractor, may qualify under
    Indiana Evidence Rule 702 to render an opinion as to medical causation if the
    causation issue is not complex. But the medical-causation issue in this case is
    complex. Accordingly, if a non-physician healthcare provider is not qualified
    under Evidence Rule 702 to render an opinion as to medical causation because
    the causation issue is complex, then chiropractors sitting on medical review
    panels are likewise not qualified to render opinions as to medical causation
    when the causation issue is complex. Thus, the opinion of the all-chiropractor
    medical review panel in this case can only be used as evidence that the
    defendant-chiropractor met the applicable standard of care. Because there is a
    genuine issue of material fact on this issue, we reverse the entry of summary
    judgment in favor of the defendant-chiropractor and remand this case for trial.
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 2 of 9
    Facts and Procedural History
    [3]   Craig Totton started receiving chiropractic treatments from Dr. Daniel P.
    Bukofchan at Franklin County Chiropractic Clinic for neck and lower back
    pain in January 2006. He reported having a compressed disc in the 1980s. In
    September 2009, Totton was involved in a motorcycle accident in which he
    broke multiple ribs and fractured his ankle; he returned to Dr. Bukofchan in
    January 2010 for treatments. During a visit on November 24, 2010, Dr.
    Bukofchan performed a cervical manipulation that caused tingling down
    Totton’s arm. When Totton returned for his next visit, he told Dr. Bukofchan
    that he was experiencing pain in the left side of his neck, shoulder, and arm.
    According to Totton, Dr. Bukofchan then snapped his neck, at which point he
    experienced sharp pain and tingling down his arm. Thereafter, Totton’s left
    arm progressively weakened. A December 2, 2010 MRI revealed a herniated
    disc in Totton’s neck. Totton underwent anterior cervical discectomy and
    fusion (ACDF) surgery on January 5, 2011, to treat the herniated disc.
    [4]   In 2012, Totton filed a proposed complaint for medical malpractice against Dr.
    Bukofchan and Franklin County Chiropractic Clinic (collectively “Dr.
    Bukofchan”) with the Indiana Department of Insurance. The complaint alleged
    that on November 24, 2010, and thereafter, Dr. Bukofchan 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. The medical review panel, which consisted of three
    chiropractors, issued a unanimous opinion in 2015:
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 3 of 9
    The evidence does not support the conclusion that the
    Defendants failed to meet the applicable standard of care as
    charged in the complaint, and the conduct complained of was not
    a factor of the resultant damages.
    Appellant’s App. Vol. II p. 28.
    [5]   Thereafter, Totton filed a complaint against Dr. Bukofchan in Franklin Circuit
    Court. Dr. Bukofchan sought summary judgment on grounds that Totton “has
    not presented any expert testimony to refute the opinion of the Medical Review
    Panel.” Id. at 19. In opposition to Dr. Bukofchan’s motion, Totton designated
    an affidavit from chiropractor Guy S. DiMartino. Specifically, Dr. DiMartino
    opined that Dr. Bukofchan failed to meet the applicable standard of care and
    caused or substantially contributed to Totton’s injuries. Id. at 40-41.
    [6]   At the summary-judgment hearing, Dr. Bukofchan argued that Dr. DiMartino
    was not qualified to provide expert testimony on the causation of Totton’s
    injuries because he is a chiropractor and not a physician. The trial court agreed
    and entered summary judgment in favor of Dr. Bukofchan:
    The Court being duly advised does hereby find that there exists
    no genuine issue of material fact in this matter as plaintiff has
    failed to produce an expert opinion refuting the unanimous
    opinion rendered by the medical review panel. The plaintiff
    designated an affidavit from a chiropractor in attempting to
    provide expert testimony to contradict the finding of the medical
    review panel. However, chiropractors do not generally have the
    same education, training and experience as physicians. In an
    action for medical malpractice, whether the defendant used
    suitable professional skill must generally be proven by expert
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 4 of 9
    testimony. A review of the medical licensing statutes indicates
    that 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. The
    Defendants’ Motion for Summary Judgment is therefore granted.
    Id. at 9.
    [7]   Totton now appeals.
    Discussion and Decision
    [8]   Totton appeals the trial court’s entry of summary judgment in favor of Dr.
    Bukofchan. We review summary judgment de novo, applying the same
    standard as the trial court: Drawing all reasonable inferences in favor of the
    non-moving party, summary judgment is appropriate if the designated evidence
    shows that there is no genuine issue as to any material fact and the moving
    party is entitled to judgment as a matter of law. Ind. Trial Rule 12(C); Hughley
    v. State, 
    15 N.E.3d 1000
    , 1003 (Ind. 2014).
    [9]   The initial burden is on the summary-judgment movant to demonstrate the
    absence of any genuine issue of fact as to a determinative issue, at which point
    the burden shifts to the non-movant to come forward with contrary evidence
    showing an issue for the trier of fact. Hughley, 15 N.E.3d at 1003. And
    although the non-movant has the burden on appeal of persuading us that the
    grant of summary judgment was erroneous, we carefully assess the trial court’s
    decision to ensure that he was not improperly denied his day in court. Id.
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 5 of 9
    [10]   Totton argues that Dr. DiMartino, a chiropractor, is qualified under Indiana
    Evidence Rule 702 to render an opinion as to the “causation of injuries inflicted
    by chiropractic treatment.” Appellant’s Br. p 7. Indiana Evidence Rule 702
    provides:
    (a) A witness who is qualified as an expert by knowledge, skill,
    experience, training, or education may testify in the form of an
    opinion or otherwise if the expert’s scientific, technical, or other
    specialized knowledge will help the trier of fact to understand the
    evidence or to determine a fact in issue.
    (b) Expert scientific testimony is admissible only if the court is
    satisfied that the expert testimony rests upon reliable scientific
    principles.
    Two requirements must be met for a witness to qualify as an expert. Spaulding v.
    Harris, 
    914 N.E.2d 820
    , 829 (Ind. Ct. App. 2009), reh’g denied, trans. denied.
    First, the subject matter must be distinctly related to some scientific field,
    business, or profession beyond the knowledge of the average layperson; and
    second, the witness must be shown to have sufficient skill, knowledge, or
    experience in that area so that the opinion will aid the trier of fact. 
    Id.
    [11]   Dr. Bukofchan concedes that Dr. DiMartino is qualified under Evidence Rule
    702 to render an opinion as to the standard of care of a chiropractor. However,
    Dr. Bukofchan argues that Dr. DiMartino is not qualified under Evidence Rule
    702 to render an opinion as to the medical causation of Totton’s injuries
    because he is not a physician.
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017       Page 6 of 9
    [12]   The general rule is that non-physician healthcare providers are not qualified
    under Evidence Rule 702 to render opinions as to medical causation. See Nasser
    v. St. Vincent Hosp. & Health Servs., 
    926 N.E.2d 43
     (Ind. Ct. App. 2010), trans.
    denied; Long v. Methodist Hosp. of Ind., Inc., 
    699 N.E.2d 1164
     (Ind. Ct. App.
    1998), trans. denied; Stryczek v. The Methodist Hosps., 
    694 N.E.2d 1186
     (Ind. Ct.
    App. 1998), trans. denied. The rationale for this general rule is that there is a
    significant difference in the education, training, and authority to diagnose and
    treat diseases between physicians and non-physician healthcare providers. Cf.
    
    Ind. Code § 25-22.5-1
    -1.1 (physicians) with 
    Ind. Code § 25-23-1-1
    .1 (registered
    nurses) & 
    Ind. Code § 25-10-1-1
     (chiropractors). In short, physicians have
    unlimited licenses, while registered nurses and chiropractors have limited
    licenses.
    [13]   However, 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. In Curts v. Miller’s Health Systems, 
    972 N.E.2d 966
     (Ind. Ct.
    App. 2012), we held that a non-physician healthcare provider may qualify
    under Evidence Rule 702 to render an opinion as to medical causation if the
    causation issue is not complex. “The determinative question is whether [the
    non-physician healthcare provider] has sufficient expertise, as provided in Rule
    702(a), with the factual circumstances giving rise to the claim and the patient’s
    injuries.” Id. at 971.
    [14]   But here, Dr. Bukofchan argues that the medical-causation issue is complex.
    As he explains in his brief:
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017     Page 7 of 9
    Totton’s medical condition at issue in this case is complex and
    involves over twenty years of pre-existing conditions, a serious
    motor vehicle accident, and years of ongoing treatment
    culminating in a cervical disc injury with apparent nerve damage
    which required a complex ACDF surgical procedure performed
    by an orthopedic surgeon. The nuances of what portions of
    Totton’s extensive medical history may have caused or
    contributed to his cervical soft tissue injury involves subject
    matter that is beyond the expertise of a chiropractor.
    Appellees’ Br. p. 15. We agree.
    [15]   That being said, if a non-physician healthcare provider, such as a chiropractor,
    is not qualified under Evidence Rule 702 to render an opinion as to medical
    causation because the causation issue is complex, then chiropractors sitting on
    medical review panels are likewise not qualified to render opinions as to
    medical causation when the causation issue is complex. The rationale for this
    flows from our holding in Nasser. There, we held that a nurse who served on a
    medical review panel consisting of two physicians and one nurse was not
    qualified under Evidence Rule 702 to give her expert opinion as to medical
    causation (because it was beyond the scope of her professional expertise), either
    to create a genuine issue of material fact on summary judgment or to serve as
    substantive evidence at trial. Nasser, 
    926 N.E.2d at 52
    . In reaching this
    holding, we noted that there was a conflict between Indiana Code section 34-
    18-10-23, which provides that the “report of the expert opinion reached by the
    medical review panel is admissible as evidence in any action subsequently
    brought by the claimant in a court of law,” and Evidence Rule 702. In the face
    of this conflict, we found that Evidence Rule 702 “prevail[ed]” and that the
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 8 of 9
    nurse’s opinion was inadmissible. Nasser, 
    926 N.E.2d at 52
    . Because the
    requirements of Evidence Rule 702 have not been met given the complex
    causation issues present in this case, the unanimous opinion of the all-
    chiropractor medical review panel cannot be used as evidence that Dr.
    Bukofchan did not cause Totton’s injuries. Rather, the opinion can only be
    used as evidence that Dr. Bukofchan met the applicable standard of care, which
    squarely falls within the chiropractors’ area of expertise. Totton, however,
    created a genuine issue of material fact on this issue by designating the affidavit
    of Dr. DiMartino, who opined that Dr. Bukofchan failed to meet the applicable
    standard of care. See Hughley, 15 N.E.3d at 1003. We therefore reverse the
    entry of summary judgment in favor of Dr. Bukofchan and remand this case for
    trial.
    [16]   Reversed and remanded.
    Bailey, J., and Robb, J., concur.
    Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 9 of 9
    

Document Info

Docket Number: Court of Appeals Case 24A01-1612-CT-2849

Citation Numbers: 80 N.E.3d 891, 2017 WL 2569798, 2017 Ind. App. LEXIS 254

Judges: Bailey, Robb, Vaidik

Filed Date: 6/14/2017

Precedential Status: Precedential

Modified Date: 11/11/2024