In CHIROPRACTIC / MEDICAL MALPRACTICE CAUSATION AND THE DEGENERATIVE SPINE, medical malpractice expert witness Richard K. Skala, DC, writes that the "chiropractic expert will be challenged by the opposing party during deposition and/or trial in terms of the foundation used to come to their conclusions within a reasonable medical probability." (See here for Part 1.)
EXPERTS WEIGH IN The defense chiropractic expert testified, on review of the medical record, noting the lack of full history disclosure on the part of the farmer in regards to prior medical treatment and imaging. Discussing also the DC examination findings and the absence of any red flags during the history and exam, the DC expert concluded that the standard of care had not been violated. The DC expert, relying on training in x-ray interpretation, testified that the initial MD was correct that the degenerative changes were age and occupation consistent. The DC expert also testified that the degeneration indicated a long standing and developing disc condition at L5/S1. Finally, the DC expert noted various treatment guidelines that indicate imaging is not mandatory in the absence of red flags.
The defense expert neurosurgeon testified that it was “unlikely” that the DC treatment significantly caused or worsened the farmer’s disc herniation. The neurosurgeon also testified that muscle weakness following Laminectomy, foraminotomy L5/S1 discectomy was not uncommon and cited multiple studies that listed leg muscle weakness as a risk of the surgery.
It was also revealed during trial by his own testimony that despite the work and activity modifications prescribed to the farmer by the DC that he had ignored these restrictions and continued to work and lift weights without limitations.
The jury unanimously found a verdict in favor of the DC, noting that he was not negligent in his care to the farmer.
The experts in this case for both plaintiff and defense could just as easily have been working on behalf of the opposite parties. Which party prevailed is not what is important. What is important is the variation in apparent understanding and application of simply relying on a conclusion of “reasonable medical probability” versus being able to support conclusions with a foundation, and thus convincing the jury.
This case demonstrates that proving chiropractic causation of injury is a multifaceted process. Experts on both sides made conclusions to reasonable medical certainty. The difference in who was able to better support the foundations in arriving at their conclusions was clear to the jury.
My observations have led me to suggest the following to counsel in chiropractic malpractice cases:
1. Have your expert review all of the medical records and give concise comments on findings, observations and questions.
2. Explore the foundations of all expert conclusions / opinions and look for each element of their foundations.
3. Come to a good understanding of the opposite side’s theories of causation on a medical, factual and, when possible, statistical basis.
A Doctor of Chiropractic since 1976, Dr. Skala provides consultation and expert witness services for attorneys regarding Personal Injury; Industrial Medical-Legal Cases; Standard of Care involving General Chiropractic, Manipulation Under Anesthesia (MUA), Non-Surgical Spinal Decompression, and Extracorporeal Shockwave (EWST); Chiropractic Licensure Compliance California, and Workers Compensation. Declared an expert witness by the California Workers’ Compensation Appeals Board, he is a California Qualified Medical Evaluator (QME), a Certified Industrial Disability Evaluator, and a certified AMA Impairment rater.