Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic

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.
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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.
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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:
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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
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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.
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[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.
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[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:
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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
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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.
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