Chiropractic Malpractice

The New York Appellate Division heard an appeal by the defendant in a chiropractic malpractice lawsuit. The issue on appeal was whether an expert witness in one medical specialty may offer an opinion  involving a different specialty—provided that the expert’s opinion is related solely to the issue of proximate cause within the expert’s own specialty and does not address the defendant’s standard of care.

Plaintiff sought chiropractic treatment from Defendant chiropractor because she was suffering from neck and back pain, and recurring headaches. Defendant administered diagnostic tests and formulated a treatment plan for Plaintiff, who visited Defendant 77 times for treatment. Plaintiff alleged that Defendant manipulated the thoracic regions of her spine “very forcefully.” As a result, she felt pain, nausea, numbness, and tingling, for which she was admitted to the hospital. She underwent an anterior cervical discectomy and fusion.

Defendant moved for summary judgment.  The defendant chiropractor stated that none of his treatments strayed from the defined and accepted standards of chiropractic care. The motion was supported by an affirmation from an orthopedic surgeon, who reviewed the records and concluded that damage to Plaintiff’s back wasn’t caused by Defendant. This orthopedic surgeon said that Plaintiff’s spinal conditions were preexisting and degenerative and were unrelated to the chiropractic treatment. Defendant also gave an affirmation of a radiologist who reviewed Plaintiff’s films taken both before and after treatment. That expert opined that Plaintiff’s thoracic and cervical conditions were “chronic and long-standing, preexistent and causally unrelated” to the alleged incidents.

In opposition, Plaintiff, noting that Defendant’s orthopedic surgeon and radiologist experts addressed the issue of causation, and submitted a confirmation from her own radiologist. This radiologist expert opined that the herniation was consistent with the exertion of a significant amount of force, and that based on Plaintiff’s medical history, the injury was caused by Defendant’s chiropractic adjustments.

In reply, Defendant argued that he didn’t stray from the accepted standards of chiropractic practice and, as a result, established his prima facie entitlement to judgment as a matter of law. He maintained that Plaintiff failed to raise a tri-able issue of fact in opposition, as the affidavit of Plaintiff’s radiologist expert was limited to an opinion based on radiological studies. The Supreme Court held that the defendant failed to establish his prima facie entitlement to judgment as a matter of law because the defendant’s experts—the orthopedic surgeon and the radiologist—didn’t offer a foundation for establishing their familiarity with chiropractic care and treatment.

Appellate Division Judge Mark Dillon wrote in his opinion that chiropractic malpractice lawsuits require proof that the defendant physician deviated from the accepted community standards of practice, and this was a cause of the plaintiff’s injuries. When a defendant moves for summary judgment, he may argue that there was no departure from good and acceptable medical practice, or that the defendant’s conduct did not proximately cause the alleged injuries. Nothing would prevent a defendant from arguing, in the alternative, that both elements of medical malpractice are lacking. The moving defendant bears the initial burden of establishing a prima facie entitlement to judgment as a matter of law. The prima facie burden is met only where the defendant addresses and rebuts any specific allegations of malpractice set forth by the plaintiff. The burden is not met, Judge Dillon explained, if the defendant’s expert renders an opinion that is conclusory in nature or unsupported by competent evidence. Only if the defendant meets that burden of proof as to the lack of a deviation from the standard of care or the absence of proximate cause, or both, does the burden shift to the plaintiff to raise a triable issue of fact in opposition.

Here, on the issue of proximate cause, Defendant proffered the affirmations of a board-certified orthopedic surgeon and a board-certified radiologist who both opined, based upon their review of the records that Plaintiff’s injuries weren’t proximately caused by the chiropractic treatment, as Plaintiff was suffering from preexisting degenerative changes to the cervical and thoracic regions of her spine. The Supreme Court held that these opinions could not be considered as prima facie proof because neither physician established his familiarity with the standard of chiropractic care and treatment. The Appellate Division disagreed.

Judge Dillon stated that the opinions of Defendant’s orthopedic surgeon and radiologist wouldn’t be valid on the issue of the standard of chiropractic care. Also none of the physicians indicated any familiarity with the standards of chiropractic practice. However, the opinions of the experts weren’t proffered for that purpose. Instead, the affirmations of both physicians were clearly and narrowly drawn to address only the separate element of proximate cause.

Specifically, Defendant’s orthopedic surgeon expert was qualified to express an opinion that the injuries to Plaintiff were preexisting and degenerative and, therefore, not caused by the chiropractic treatments. The opinion as to proximate cause is based upon matters within the expert’s specialty—there’s no requirement that the expert additionally possess expertise on the distinct element of the standard of care Dillon wrote In other words, proximate cause is proximate cause, and there isn’t necessarily a distinction between chiropractic proximate cause requiring opinion from a chiropractic expert versus opinion from an orthopedist on the same issue.

Similarly, Defendant’s radiologist expert was foundationally qualified to give his opinion that Defendant’s chiropractic treatment was not a proximate cause of the alleged injuries. His opinion was based upon a review of radiologic films reflecting preexisting degenerative changes within the expertise of a radiologist to diagnose. Their opinions should have been considered by the Supreme Court on the issue of whether the plaintiff’s alleged injuries preexisted her chiropractic treatments and were therefore not proximately caused by the acts or omissions of the defendant. Therefore, contrary to the Supreme Court’s conclusion, Defendant met his prima facie burden of proving the absence of proximate cause, and the burden should have shifted to the plaintiff to raise a triable issue of fact as to that point.

In opposition, on the limited issue of proximate cause, Plaintiff submitted the affirmation of a board-certified radiologist, who opined “that a significant amount of force was involved in causing the centrally located herniation.” Moreover, Plaintiff’s radiologist said the herniation was recent. This radiologist’s opinion was arguably consistent with the plaintiff’s deposition testimony that Defendant manipulated her spine and neck “very forcefully” during the treatments in question. As such, the plaintiff succeeded in raising a triable issue of fact as to the issue of proximate cause.

Aside from proximate causality, Defendant proffered his own affidavit in support of summary judgment by rendering an opinion, as his own expert, that he did not deviate or depart from the relevant standard of chiropractic care. Judge Dillon said that a defendant health care practitioner’s own affidavit may be used to establish his or her prima facie entitlement to summary, even if it is self-serving. Nevertheless, the Court nevertheless found the defendant’s affidavit attesting that he did not deviate or depart from the appropriate standards of chiropractic treatment to be conclusory and insufficient to establish his prima facie entitlement to judgment as a matter of law on this element. Defendant failed to define for the court the very standards that he claimed were not violated.

Bongiovanni v. Cavagnuolo, 17701/11, NYLJ 1202749205539, at *1 (NY App. Div., 2nd, Decided February 3, 2016).