Orthopedic Surgeons May Offer Opinions On Causation In Cases Of Chiropractic Malpractice

Bongiovanni v Cavagnuolo, ___ AD 3d ___, 2016 NY Slip Op 00638

In a malpractice action an opinion as to causation may be rendered by an expert in a field related to the injury, even though the underlying claim of negligence relates to a specialist in a different field. In this malpractice action against a chiropractor, therefore, opinions as to the causation of plaintiff’s disk injuries could be received from non-chiropractors whose expertise was in orthopedics and radiology. These opinions related to causation only, which was within the experts’ fields of expertise, and not to the standard of care applicable to chiropractors.

One of the hallmarks of a professional negligence case is that the profession itself is generally allowed to set the standard of good and accepted practice. Negligent care, or malpractice, is a departure from that standard. It follows that expert testimony as to whether the care at issue departed from that standard must come from those whose expertise is established either by their being practitioners in the same field or through some other combination of training, skill or experience. The principle also extends to specialists: Expert opinion must come from specialists in the same field or those who can otherwise establish the reliability of their opinions.

In a chiropractic malpractice case such as this, therefore, whether the defendant departed from the standard of good and accepted practice would normally require expert testimony from chiropractors. Normally, an orthopedic surgeon could not testify as to whether a given chiropractic treatment deviated from the chiropractic standard.

There is, of course, a second issue: whether or not the acts of malpractice were the proximate cause of the plaintiff’s injuries. Here, expert testimony need not necessarily come from experts in the same field of treatment, but may come from anyone whose expertise as to the nature of the injuries would justify an opinion as to their origin and causation.

The plaintiff’s claim here was that the defendant chiropractor engaged in improper and unduly forceful manipulations of her thoracic spine, resulting in trauma to a cervical disk, requiring a discectomy and fusion surgery.

Defendant moved for summary judgment both as to a deviation from acceptable standards of care and as to causation. As to deviation, defendant offered his own affidavit, to the effect that there was no deviation from accepted standards. This is of course permitted.

Defendant then offered the affidavits of an orthopedic surgeon and a radiologist. Both of these were restricted to the issue of causation, saying nothing about the standard of chiropractic care. Both concluded that the injuries were degenerative, pre-existing the treatment at issue. In opposition, the plaintiff offered the affidavit of a radiologist, who also restricted his opinion to causation, finding that the injury was caused by a significant amount of force, consistent with the plaintiff’s claims.

Supreme Court held that the opinions of defendant’s experts were inadmissible, as the experts had not established a knowledge of chiropractic treatment. The court held that the defendant had accordingly not sustained his initial burden of proof on the motion, and denied it.

The Appellate Division affirmed, but on a different ground. The opinions of the experts, being limited to the causation of the plaintiff’s disk injuries, were squarely within their areas of expertise. They were therefore admissible on the motion. The disagreement between them raised a triable issue of fact, and that was the proper rationale for denial of the motion.

As to the issue of deviation from the standard of care, the Appellate Division held that the defendant’s affidavit failed to establish the applicable standard of care, rendering his opinion as to the lack of any deviation to be conclusory. He therefore failed to sustain his initial burden on this score, and the court did not consider the plaintiff’s opposition.