Chiropractor can testify on causation of man’s injuries

In a published opinion, the Court of Appeals of Virginia has granted a new trial to a plaintiff awarded a mere $2,500 jury award because the circuit court erroneously barred a chiropractor from testifying about the cause of the plaintiff’s neck injury.

The circuit court cited the general rule that only medical doctors may offer expert testimony about the causation of physical human injuries. The chiropractor was limited to testifying only about the nature of the plaintiff’s injuries but not their cause.

But Senior Judge Jean Harrison Clements said that Code § 8.01-401.2(A) provided “an express exception to that rule; thus, the circuit court erred. The specific statutory exception for chiropractors controls over the general rule.”

And because the error was not harmless, Judges Doris Henderson Causey and Stuart A. Raphael joined Clements in reversing and remanding Foster v. McNamara (VLW 025-7-284).

Interrupted trial

Representing the plaintiff was Richmond personal injury attorney Gary Hershner. Aside from the defendant waiting until trial to challenge the chiropractor’s testimony, Hershner felt that this was “not a very exciting case.”

“I was surprised that this issue came up because I had designated our expert opinions well before and the pretrial scheduling order required notice of motions in limine well before trial,” Hershner told Virginia Lawyers Weekly. “They interrupted the trial to present the motion.”

Hershner said, “that in and of itself seemed improper but the judge let him argue anyway and then I filed a post-trial motion to say ‘you screwed up, here’s a recent case from the court of appeals and the statute.’”

“The judge said on the record that he didn’t find the case law from the court of appeals very persuasive,” the attorney lamented, adding that he was not surprised by the jury’s verdict.

“The way that the trial went with the rulings, it was difficult for the jury to award very much money,” he said.

Counsel for the defendant did not respond to a request for comment.

Low jury award

In May 2020, Michael Foster was injured in a rear-end collision caused by Susan McNamara. Foster did not initially seek medical attention, despite feeling a headache. After waking up from a nap that day with a painful migraine, Foster went to the hospital.

Foster later sought treatment at a musculoskeletal pain relief center where he was examined by Dr. William Roodman, a chiropractor. Dr. Roodman found that Foster had sprained ligaments of his neck and upper mid back.

Foster received chiropractic adjustments and therapeutic massages for over three years with some improvement, but his neck pain and headaches never fully subsided.

During his jury trial against McNamara, Foster testified about prior injuries — gunshots to his torso in 2002 and a car accident in 2017 — after which Foster has walked with a cane and cannot lift heavy objects.

However, Foster claimed that he had no significant neck problems or headaches before the accident with McNamara. He was able to resume most activities but experienced sensitivity to the sun and felt neck pain.

The circuit court granted Foster’s motion to prevent McNamara from adducing evidence of claims he pursued after the earlier accidents, unless Foster opened the door or it became relevant.

McNamara admitted fault but questioned Foster about receiving disability payments after being shot. Foster objected and moved for a mistrial. The court denied the motion but warned McNamara away from the subject and issued a corrective instruction.

Although he did not object to Dr. Roodman’s qualification as Foster’s expert, McNamara argued that he could not use a radiologist’s diagnostic report to support opinion testimony about the nature and cause of Foster’s injury.

Citing the general rule that only medical doctors may offer expert testimony about the causation of physical human injuries, the circuit court barred Dr. Roodman from testifying about the cause of Foster’s neck injury and excluded the report.

The jury rejected Foster’s demand for $750,000 from McNamara and awarded him only $2,500. After his motion to set aside the verdict and order a new trial were denied, Foster filed this appeal.

Statutory exception

Under Va. Code § 54.1-2900, a properly qualified chiropractic doctor may testify as an expert about the “etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations” within that scope.

To bar Dr. Roodman from testifying about the cause of Foster’s neck injury, the circuit court relied on 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” Clements pointed out, adding that chiropractor exception “controls over the general rule.”

Nor was there a categorical bar against experts other than medical doctors testifying on issues relating to human health.

The Supreme Court of Virginia has recognized several exceptions, such as Velazquez v. Commonwealth, in which a sexual assault nurse practitioner was specially qualified and experienced to provide medical causation opinions in appropriate circumstances.

“To determine when an expert may testify in such matters, the Supreme Court often takes guidance from statutes defining the responsibilities and obligations of licensed healthcare professionals,” Clements explained.

“The general rule that only a medical doctor is qualified to give expert testimony about the cause of human physical injury is merely an application of this principle,” the judge noted.

Where statues defined the practice of medicine as the diagnosis of human physical and mental ailments, and diagnosis as determining the type and cause of a health condition, the Supreme Court in Combs v. Norfolk & Western Railway held that “the question of causation of a human injury is a component part of a diagnosis, which in turn is part of the practice of medicine.”

The Combs court reasoned that a biomechanical engineer could not testify about the cause of a plaintiff’s ruptured disc because he was not a medical doctor authorized to practice medicine.

“But in other situations, statutory guidance may point otherwise,” Clements said, looking to Conley v. Commonwealth and Fitzgerald v. Commonwealth, where licensed clinical social workers and professional counselors were authorized to diagnose mental disorders, thus qualifying them to provide expert testimony.

Properly qualified

Although the statutory definition of chiropractic practice did not include diagnosis, § 8.01-401.2(A) expressly allows chiropractic doctors to discuss etiology and diagnosis “within the scope of the practice of chiropractic as defined in § 54.1-2900.”

“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,” Clements said.

“Chiropractors, when properly qualified as experts, may opine about the cause of human physical injuries to the extent identifying the etiology of or providing diagnosis for such injuries falls within the scope of the practice of chiropractic, as defined in Code § 54.1-2900,” she wrote.

Thus, the circuit erred by barring Dr. Roodman’s expert opinion about the cause of Foster’s injuries despite his unchallenged chiropractic expertise.

“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,’” the judge said.

Here, Dr. Roodman testified that Foster had sprains in the cervical and thoracic spinal regions, which he treated through chiropractic adjustments and therapeutic massage.

And § 54.1-2900 defined the scope of chiropractic as including “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),” Clements held.

Central issue

“Improperly excluding expert testimony addressing ‘a central part of [a litigant’s case] can represent a significant error’ because ‘it is not a stretch to believe that scientific evidence is given great weight by jurors,’” Clements pointed out, quoting Shaw v. Commonwealth.

The jury’s task was to fix damages, and therefore 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,” the judge said. The circuit court erroneously limited Dr. Roodman to testify only about the nature of Foster’s injury observed during the first visit.

“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,” Clements opined.

“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,” the judge noted.

Having found the error was not harmless, the panel reversed the circuit court’s judgment and remanded the case for a new trial.

Disability payments

Foster also asserted that the circuit court erroneously refused to grant a mistrial after McNamara elicited his testimony about receiving disability payments. The panel chose to address the issue because it was likely to arise in a new trial.

Citing Clark v. Chapman, Clements said a mistrial “is appropriate only if ‘there is a manifest probability that objectionable evidence of statements before the jury are prejudicial to the adverse party.’”

Here, the circuit court ruled 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,’” Clements pointed out. “McNamara has not assigned error to either ruling.”

Therefore, the panel said the circuit court’s unchallenged rulings were the law of the case and that McNamara was prohibited from adducing evidence of Foster’s disability payments.