Negligence: Chiropractor wrongly excluded from testifying about plaintiff’s injuries

Where the circuit court barred a chiropractor from testifying about the cause of the plaintiff’s neck injury, citing the general rule that only medical doctors may offer expert testimony about the causation of physical human injuries, it erred. Code § 8.01-401.2(A) expressly permits chiropractors to testify about the causation of a human physical injury.

Background

Michael Foster appeals the circuit court’s judgment confirming the jury’s award of $2,500 for injuries he sustained when Susan McNamara rear-ended a car in which he was a passenger. Believing that his damages award was too low, Foster argues the circuit court erred by failing to grant his motion for a mistrial based on McNamara’s introduction of improper evidence, excluding expert testimony he offered from a chiropractor about the causal link between the accident and his injury and denying his motion to set aside the verdict and order a new trial.

Expert

“A doctor of chiropractic, when properly qualified, may testify as an expert witness in a court of law as to etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations within the scope of the practice of chiropractic as defined in § 54.1-2900.”

Despite this clear statutory language, the circuit court barred Dr. Roodman from testifying about the cause of Foster’s neck injury, citing the general rule that only medical doctors may offer expert testimony about the causation of physical human injuries. But Code § 8.01-401.2(A) provides an express exception to that rule; thus, the circuit court erred. The specific statutory exception for chiropractors controls over the general rule. By authorizing chiropractors to testify about “etiology” and “diagnosis” that are “within the scope of the practice of chiropractic,” Code § 8.01-401.2(A) expressly permits chiropractors to testify about the causation of a human physical injury.

The circuit court barred Dr. Roodman from offering an opinion about the cause of Foster’s injuries despite Dr. Roodman’s unchallenged chiropractic expertise. This was error. The court should have allowed Dr. Roodman to opine about the cause of Foster’s injuries to the extent the injuries fell within the scope of the “practice of chiropractic as defined in Code § 54.1-2900.”

Dr. Roodman testified that Foster had sprains in the cervical and thoracic regions of his spine, which Dr. Roodman treated through chiropractic adjustments and therapeutic massage. Code § 54.1-2900 defines the scope of chiropractic as including, in relevant part, “the adjustment of the 24 movable vertebrae of the spinal column[] and assisting nature for the purpose of normalizing the transmission of nerve energy.” Foster thus had an injury which Dr. Roodman treated within the scope of the practice of chiropractic, and Dr. Roodman should have been allowed to testify about the etiology and diagnosis of that injury under Code § 8.01-401.2(A).

Moreover, excluding Dr. Roodman’s testimony was not harmless. The jury’s task was to fix damages. To do so, the jury had to ascertain how much of Foster’s pain, suffering, and inconvenience arose from the 2020 accident, as opposed to his pre-existing injuries. Thus, the extent to which the 2020 accident caused Foster’s neck and back injuries and headaches was a central issue.

Had Dr. Roodman been allowed to testify that the 2020 car accident caused Foster’s neck and back injuries, the jury may have apportioned more of Foster’s pain and suffering to that accident and awarded greater damages. No other admitted evidence addressed this point, and it does not plainly appear from the record that the erroneously excluded testimony could not have affected the jury’s verdict.

Disability payments

The circuit court ruled below that McNamara was prohibited from adducing evidence that he had previously been awarded disability payments. The court also gave a jury instruction that directed the jury not to consider “insurance or benefits of any type.” McNamara has not assigned error to either ruling. Thus the circuit court’s unchallenged rulings are the law of the case. On remand, McNamara is prohibited by the law of the case from adducing evidence of Foster’s having received disability payments.

Reversed and remanded.

Foster v. McNamara, Record No. 0996-24-2, Oct. 14, 2025. CAV (Clements). From the Circuit Court of Chesterfield County (Robbins Jr.). Gary R. Hershner for appellant. E. Brandon Ferrell (Kerrigan O’Malley; Carter & Shands, PC, on brief), for appellee. VLW 025-7-284. 11 pp.