The insurance industry has long disparaged the testimony of chiropractors in personal injury cases. Courts nevertheless agree that chiropractors may give expert testimony about the cause of injuries for which they provide chiropractic treatment as well as the necessity of that treatment.
Courts are less likely to agree whether chiropractors are qualified to testify about the causation of injuries for which medical treatment is provided or the necessity of that treatment. A recent decision in Arkansas rejected a blanket rule and decided that the expert’s qualifications depend on the expert.
Facts of the Case
On a rainy day in 2010, Karen Elder visited a Dollar General store in Mt. Ida, Arkansas. She slipped on the wet sidewalk outside the store’s entrance. Elder reported her fall to an assistant manager.
Elder had preexisting back pain for which she had received chiropractic treatment since 2004. After her fall, Elder had neck, back, and shoulder surgery. In 2013, she sued Dollar General for negligence, alleging that Dollar General breached its duty to maintain its premises in a safe condition.
Elder intended to have her chiropractor, Eric Carson, testify about the cause of her injuries, the permanence of her disability, and the reasonableness of her medical bills. Dollar General moved to exclude much of Dr. Carson’s testimony. The motion was denied and the case went to trial.
Elder testified that the weather was misting and that she was jogging toward the entrance to avoid getting wet. She encountered a slick area on the sidewalk and fell. She testified that the slick area was not covered by a mat and that no signs warned her that parts of the concrete sidewalk were slippery.
One portion of the sidewalk has a rough surface and is presumably not as slippery, but another portion has a smooth surface. Elder relied on a safety expert to establish that the smooth portion of the sidewalk was unreasonably dangerous and that the danger was not obvious.
A former assistant manager testified that she had slipped on the sidewalk when it was wet and that she had seen at least four other people slip. She alerted her manager and the landlord about the unsafe condition and expressed concern that it might lead to a customer injury. She was told that it would be taken care of, but no action was taken.
Over objection, Dr. Carson testified that Elder’s injuries and the medical treatment Elder received for them, including her surgeries, were caused by her fall. Dollar General offered the testimony of an orthopedic surgeon that her surgeries were related to a degenerative medical condition and not to her fall.
The jury found in Elder’s favor and returned a verdict of $700,000. Dollar General appealed, arguing that Dr. Carson was not qualified to testify that Elder’s surgery was caused by injuries she sustained in her fall.
Competence of Chiropractor to Testify About Causation
Elder supplemented its discovery responses to disclose Dr. Carson’s anticipated causation testimony. Dollar General claimed to be surprised by those opinions and asked for a continuance during the trial so it could pursue additional discovery. The supreme court agreed with the trial court that the request for a continuance came too late, given that the opinions were disclosed almost three weeks before the trial.
A more troubling question was whether Dr. Carson was competent to testify about causation. There were two related issues of causation in Elder’s case. The first is whether her fall at Dollar General caused her to suffer an injury. The second is whether the medical (as opposed to chiropractic) treatment she received was caused by injuries she suffered in the fall.
Dollar General agreed that Dr. Carson was qualified to testify that injuries he actually treated were caused by the fall and that he provided necessary treatment for those injuries. Dollar General contended that Dr. Carson was not qualified to testify about the necessity of treatment provided by medical doctors.
The supreme court disagreed with the proposition that “a chiropractor may not testify as to the causal need for surgical procedures that a chiropractor may not perform.” The Arkansas precedent upon which that argument was based held that no foundation had been laid for the chiropractor’s testimony that a patient had a permanent disability. That precedent did not establish a blanket rule.
The court decided that the admissibility of a chiropractor’s opinion requires a case-by-case assessment of a chiropractor’s training and experience. Dr. Carson had extensive training in the fields of orthopedics and neurology. The trial court was satisfied that his training in those areas was similar to the training of a medical doctor.
Dr. Carson’s experience included the treatment of hundreds of patients who suffered from traumatic injuries. He acknowledged that he does not perform surgery, but he regularly diagnoses injuries and makes an informed judgment about whether the injury would respond to chiropractic care or would be better treated by a medical doctor.
The combination of Dr. Carson’s training and experience qualified him to opine that Elder’s injuries were caused by her fall, whether or not he treated them. That he was not trained as a medical doctor went to his credibility, not to the admissibility of his causation testimony.
Competence of Chiropractor to Testify About Necessity of Treatment
Dollar General next argued that Dr. Carson was not qualified to testify about the necessity of Elder’s medical treatment. Whether surgeries were related to the fall or to preexisting conditions was an issue in the case.
The supreme court noted that the reasonableness of treatment (which must generally be established to support the inclusion of medical expenses in a verdict) was not contested. Dr. Carson might not have been qualified to testify about the reasonableness of the medical treatment, but his training and experience qualified him to testify that the medical treatment was necessary. Since he was competent to testify that the fall caused the condition for which Elder was treated, he was also competent to testify that she needed the treatment she received.