                                                                               FILED
                                                                           Jun 14 2017, 9:35 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Robert A. Montgomery                                       Peter H. Pogue
Law Offices of Robert Montgomery                           Daniel B. Gearhart
Munster, Indiana                                           Justin C. Kuhn
                                                           Schultz & Pogue, LLP
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Craig Totton,                                              June 14, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           24A01-1612-CT-2849
        v.                                                 Appeal from the Franklin Circuit
                                                           Court
Daniel P. Bukofchan, D.C., and                             The Honorable Clay M.
Franklin County Chiropractic                               Kellerman, Judge
Clinic,                                                    Trial Court Cause No.
Appellees-Respondents                                      24C02-1512-CT-808




Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017                           Page 1 of 9
                                           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.

      Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 2 of 9
                             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:

      Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 3 of 9
              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

      Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 4 of 9
              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.


      Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 5 of 9
[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 layperson; and

       second, the witness must be shown to have sufficient skill, knowledge, or

       experience in that area so that the opinion will aid the trier of fact. Id.


[11]   Dr. Bukofchan concedes that Dr. DiMartino is qualified under Evidence Rule

       702 to render an opinion as to the standard of care of a chiropractor. However,

       Dr. Bukofchan argues that Dr. DiMartino is not qualified under Evidence Rule

       702 to render an opinion as to the medical causation of Totton’s injuries

       because he is not a physician.



       Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017       Page 6 of 9
[12]   The general rule is that non-physician healthcare providers are not qualified

       under Evidence Rule 702 to render opinions as to medical causation. See Nasser

       v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43 (Ind. Ct. App. 2010), trans.

       denied; Long v. Methodist Hosp. of Ind., Inc., 699 N.E.2d 1164 (Ind. Ct. App.

       1998), trans. denied; Stryczek v. The Methodist Hosps., 694 N.E.2d 1186 (Ind. Ct.

       App. 1998), trans. denied. The rationale for this general rule is that there is a

       significant difference in the education, training, and authority to diagnose and

       treat diseases between physicians and non-physician healthcare providers. Cf.

       Ind. Code § 25-22.5-1-1.1 (physicians) with Ind. Code § 25-23-1-1.1 (registered

       nurses) & Ind. Code § 25-10-1-1 (chiropractors). In short, physicians have

       unlimited licenses, while registered nurses and chiropractors have limited

       licenses.

[13]   However, there is not a blanket rule that prohibits non-physician healthcare

       providers from qualifying as expert witnesses as to medical causation under

       Evidence Rule 702. In Curts v. Miller’s Health Systems, 972 N.E.2d 966 (Ind. Ct.

       App. 2012), we held that a non-physician healthcare provider may qualify

       under Evidence Rule 702 to render an opinion as to medical causation if the

       causation issue is not complex. “The determinative question is whether [the

       non-physician healthcare provider] has sufficient expertise, as provided in Rule

       702(a), with the factual circumstances giving rise to the claim and the patient’s

       injuries.” Id. at 971.


[14]   But here, Dr. Bukofchan argues that the medical-causation issue is complex.

       As he explains in his brief:

       Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017     Page 7 of 9
               Totton’s medical condition at issue in this case is complex and
               involves over twenty years of pre-existing conditions, a serious
               motor vehicle accident, and years of ongoing treatment
               culminating in a cervical disc injury with apparent nerve damage
               which required a complex ACDF surgical procedure performed
               by an orthopedic surgeon. The nuances of what portions of
               Totton’s extensive medical history may have caused or
               contributed to his cervical soft tissue injury involves subject
               matter that is beyond the expertise of a chiropractor.


       Appellees’ Br. p. 15. We agree.

[15]   That being said, if a non-physician healthcare provider, such as a chiropractor,

       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. The rationale for this

       flows from our holding in Nasser. There, we held that a nurse who served on a

       medical review panel consisting of two physicians and one nurse was not

       qualified under Evidence Rule 702 to give her expert opinion as to medical

       causation (because it was beyond the scope of her professional expertise), either

       to create a genuine issue of material fact on summary judgment or to serve as

       substantive evidence at trial. Nasser, 926 N.E.2d at 52. In reaching this

       holding, we noted that there was a conflict between Indiana Code section 34-

       18-10-23, which provides that the “report of the expert opinion reached by the

       medical review panel is admissible as evidence in any action subsequently

       brought by the claimant in a court of law,” and Evidence Rule 702. In the face

       of this conflict, we found that Evidence Rule 702 “prevail[ed]” and that the
       Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017    Page 8 of 9
       nurse’s opinion was inadmissible. Nasser, 926 N.E.2d at 52. Because the

       requirements of Evidence Rule 702 have not been met given the complex

       causation issues present in this case, the unanimous opinion of the all-

       chiropractor medical review panel cannot be used as evidence that Dr.

       Bukofchan did not cause Totton’s injuries. Rather, the opinion can only be

       used as evidence that Dr. Bukofchan met the applicable standard of care, which

       squarely falls within the chiropractors’ area of expertise. Totton, however,

       created a genuine issue of material fact on this issue by designating the affidavit

       of Dr. DiMartino, who opined that Dr. Bukofchan failed to meet the applicable

       standard of care. See Hughley, 15 N.E.3d at 1003. We therefore reverse the

       entry of summary judgment in favor of Dr. Bukofchan and remand this case for

       trial.

[16]   Reversed and remanded.

       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 24A01-1612-CT-2849 | June 14, 2017   Page 9 of 9
