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Totton v. Bukofchan

Court of Appeals of Indiana

June 14, 2017

Craig Totton, Appellant-Petitioner,
v.
Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic, Appellees-Respondents

         Appeal 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, 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 ...


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