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Podiatrist can’t testify on issue of causation

A disabled railroad worker’s lawsuit was dismissed last week because a judge found that, under Virginia law, his podiatrists could not testify that his foot condition was caused by workplace conditions.

The opinion excluding the podiatrists’ testimony on causation comes from Roanoke Circuit Judge William D. Broadhurst. The case is Hollingsworth v. Norfolk Southern Ry. Co. (VLW 008-8-207).

Joseph Hollingsworth became disabled due to a foot condition that he blamed on the conditions of his work as a yard conductor for Norfolk Southern. He sued NS under the Federal Employers Liability Act and proposed to present testimony from two Roanoke-area podiatrists, Steve G. Steffan and Charles Zelen. Hollingsworth planned to have the podiatrists testify that his injuries “were caused by repeated walking on irregular surfaces such as the rock ballast in the rail yards.”

Podiatrists treat conditions of the feet and lower legs. To practice, podiatrists must complete four-year podiatric college programs and be licensed by a state, but they are not medical doctors.

The defendant railroad argued that, since neither podiatrist was a medical doctor and since only medical doctors can render opinions as to causation of physical injury, the podiatrists could not testify as to causation.

The issue appeared to be one of first impression, according to Broadhurst. He cited a 2002 case in which the Supreme Court of Virginia ruled that a psychologist was not qualified to state an expert medical opinion regarding the cause of a physical human injury because the psychologist was not a medical doctor.

Broadhurst turned to the Virginia statutory definitions of the practice of medicine and the practice of podiatry. The practice of medicine is defined to include “prevention and diagnosis” of a condition, but those functions do not appear in the definition of the practice of podiatry.

Broadhurst then noted the statute that expressly allows chiropractors to testify as to “etiology” and “diagnosis.”

“The obvious inference,” he wrote, is that the legislature is cognizant of the causation opinion rule as it affects other practitioners, “and has chosen not to alter its restriction on their ability to testify as to causation.”

“This Court cannot discern a basis in law that would grant podiatrists the same ability as medical doctors to testify as to causation. If such a basis exists, then the Court must leave it [to] greater minds for revelation and articulation,” Broadhurst wrote.

Based on Broadhurst’s opinion barring causation testimony from the podiatrists, NS lawyer Brad Fitzgerald moved for summary judgment. “Without testimony of medical causation, the plaintiff has no proof that his injury was caused by workplace conditions,” he argued.

At a hearing Sept. 23, Broadhurst granted that motion and requested preparation of an order dismissing the case.

Hollingsworth’s local counsel, Ray Ferris, ordered a transcript of the hearing and indicated that he would appeal. Ferris advised that Hollingsworth’s damages included over $500,000 in lost wages and benefits. Hollingsworth also is represented by Illinois attorney Robert W. Schmeider.

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