from the Franklin Circuit Court The Honorable Clay M.
Kellerman, Judge Trial Court Cause No. 24C02-1512-CT-808
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,
Vaidik, Chief Judge.
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.
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.
and Procedural History
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
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.
App. Vol. II p. 28.
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.
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 ...