Totton v. Bukofchan

• Decision Date: 14 June 2017
• Docket Number: Court of Appeals Case No. 24A01-1612-CT-2849
• Parties: Craig TOTTON, Appellant-Petitioner, v. Daniel P. BUKOFCHAN, D.C., and Franklin County Chiropractic Clinic, Appellees-Respondents
• Court: Indiana Appellate Court

80 N.E.3d 891

Craig TOTTON, Appellant-Petitioner,

v.Daniel P. BUKOFCHAN, D.C., and Franklin County Chiropractic Clinic, Appellees-Respondents

Court of Appeals Case No. 24A01-1612-CT-2849

Court of Appeals of Indiana.

June 14, 2017

Attorney for Appellant : Robert A. Montgomery, Law Offices of Robert Montgomery, Munster, Indiana

Attorneys for Appellees : Peter H. Pogue, Daniel B. Gearhart, Justin C. Kuhn, Schultz & Pogue, LLP, Indianapolis, Indiana

Vaidik, Chief Judge.

Case Summary

[1] In this medical-malpractice case against a chiropractor, the medical review panel, which consisted of three chiropractors, found that the defendant-chiropractor met the applicable standard of care and did not cause the plaintiff's injuries. The defendant-chiropractor moved for summary judgment, and in opposition the plaintiff designated an affidavit from his own chiropractor, who opined that the defendant-chiropractor did not meet the applicable standard of care and caused the plaintiff's injuries. The trial court entered summary judgment in favor of the defendant-chiropractor because it found that chiropractors are not qualified to give expert opinions as to the medical cause of injuries.

[2] A non-physician healthcare provider, such as a chiropractor, may qualify under Indiana Evidence Rule 702 to render an opinion as to medical causation if the causation issue is not complex. But the medical-causation issue in this case is complex. Accordingly, if a non-physician healthcare provider is not qualified under Evidence Rule 702 to render an opinion as to medical causation because the causation issue is complex, then chiropractors sitting on medical review panels are likewise not qualified to render opinions as to medical causation when the causation issue is complex. Thus, the opinion of the all-chiropractor medical review panel in this case can only be used as evidence that the defendant-chiropractor met the applicable standard of care. Because there is a genuine issue of material fact on this issue, we reverse the entry of summary judgment in favor of the defendant-chiropractor and remand this case for trial.

Facts and Procedural History

[3] Craig Totton started receiving chiropractic treatments from Dr. Daniel P. Bukofchan at Franklin County Chiropractic Clinic for neck and lower back pain in January 2006. He reported having a compressed disc in the 1980s. In September 2009, Totton was involved in a motorcycle accident in which he broke multiple ribs and fractured his ankle

; he returned to Dr. Bukofchan in January 2010 for treatments. During a visit on November 24, 2010, Dr. Bukofchan performed a cervical manipulation that caused tingling down Totton's arm. When Totton returned for his next visit, he told Dr. Bukofchan that he was experiencing pain in the left side of his neck, shoulder, and arm. According to Totton, Dr. Bukofchan then snapped his neck, at which point he experienced sharp pain and tingling down his arm. Thereafter, Totton's left arm progressively weakened. A December 2, 2010 MRI revealed a herniated disc in Totton's neck. Totton underwent anterior cervical discectomy and fusion (ACDF) surgery on January 5, 2011, to treat the herniated disc.

[4] In 2012, Totton filed a proposed complaint for medical malpractice against Dr. Bukofchan and Franklin County Chiropractic Clinic (collectively "Dr. Bukofchan") with the Indiana Department of Insurance. The complaint alleged that on November 24, 2010, and thereafter, Dr. Bukofchan carelessly, negligently, and unskillfully examined and treated Totton and that as a direct and proximate result, he suffered personal injuries and an aggravation of a preexisting injury. The medical review panel, which consisted of three chiropractors, issued a unanimous opinion in 2015:

The evidence does not support the conclusion that the Defendants failed to meet the applicable standard of care as charged in the complaint, and the conduct complained of was not a factor of the resultant damages.

Appellant's App. Vol. II p. 28.

[5] Thereafter, Totton filed a complaint against Dr. Bukofchan in Franklin Circuit Court. Dr. Bukofchan sought summary judgment on grounds that Totton "has not presented any expert testimony to refute the opinion of the Medical Review Panel." Id. at 19. In opposition to Dr. Bukofchan's motion, Totton designated an affidavit from chiropractor Guy S. DiMartino. Specifically, Dr. DiMartino opined that Dr. Bukofchan failed to meet the applicable standard of care and caused or substantially contributed to Totton's injuries. Id. at 40-41.

[6] At the summary-judgment hearing, Dr. Bukofchan argued that Dr. DiMartino was not qualified to provide expert testimony on the causation of Totton's injuries because he is a chiropractor and not a physician. The trial court agreed and entered summary judgment in favor of Dr. Bukofchan:

The Court being duly advised does hereby find that there exists no genuine issue of material fact in this matter as plaintiff has failed to produce an expert opinion refuting the unanimous opinion rendered by the medical review panel. The plaintiff designated an affidavit from a chiropractor in attempting to provide expert testimony to contradict the finding of the medical review panel. However, chiropractors do not generally have the same education, training and experience as physicians. In an action for medical malpractice, whether the defendant used suitable professional skill must generally be proven by expert testimony. A review of the medical licensing statutes indicates that chiropractors are more akin to nurses in that they receive limited medical licenses and are therefore not qualified to offer expert testimony as to the medical cause of injuries. The Defendants' Motion for Summary Judgment is therefore granted.

Id. at 9.

[7] Totton now appeals.

Discussion and Decision

[8] Totton appeals the trial court's entry of summary judgment in favor of Dr. Bukofchan. We review summary judgment de novo, applying the same standard as the trial court: Drawing all reasonable inferences in favor of the non-moving party, summary judgment is appropriate if the designated evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 12(C) ; Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] The initial burden is on the summary-judgment movant to demonstrate the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. Hughley , 15 N.E.3d at 1003. And although the non-movant has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court. Id.

[10] Totton argues that Dr. DiMartino, a chiropractor, is qualified under Indiana Evidence Rule 702 to render an opinion as to the "causation of injuries inflicted by chiropractic treatment." Appellant's Br. p 7. Indiana Evidence Rule 702 provides:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

Two requirements must be met for a witness to qualify as an expert. Spaulding v. Harris, 914 N.E.2d 820, 829 (Ind. Ct. App. 2009), reh'g denied , trans. denied. First, the subject matter must be distinctly related to some scientific field, business, or profession beyond the knowledge of the average...