By Marvin M. Belli
Belli, Ashe, Ellison and Choulos
Lawyers, San Francisco — Los Angeles

1973 — Lawyers don’t realize there’s now good legal authority for the use of chiropractors in court for expert testimony as to permanence of injury, as experts is personal injury cases, and even against orthopedic doctors and other medicine men.

Of course, the chiropractor wouldn’t be called in to testify as an expert in an inter-cranial injury case or in a case that is out of his field, but the list of what is “out of his field” is daily being limited, at least by the courts.

Indeed, as far as the courts and judges are concerned, the chiropractor has “arrived.” He’s more recognized in the law for his professional capacity than perhaps any other field!

If there is any temerity on the part of your patient’s lawyer in using the chiropractor for expert testimony, he should be directed to some of these cases, all trend decisions extending the expertise field of the chiropractor in court:

In Corbin v. Hittle, Michigan, 1971, 192 N.W. 2d. 338, there was a personal injury action arising out of an automobile accident. Plaintiff testified that immediately after the accident he experienced “shock, nausea, plus pain in his neck, back, and right elbow.” He further testified that he experienced “continuous pain in his neck and back ever since the accident.” At the time of the trial he stated that he experienced “intermittent discomfort which restricted activities and work about his home, endured discomfort in extended driving, in playing golf, etc.”

Dr. Vinnik testified on trial that he was a chiropractor and examined Donald Corbin on 11 January, 1965. Dr. Vinnik testified that: “1) he took a case history of the plaintiff; 2) he did an auscultation of the plaintiff’s heart and lungs; 3) did a urine analysis and an analysis of the plaintiff’s posture and gait; 4) took x-rays of the plaintiff’s spine.”

This witness then stated that from the above tests he found, inter alia: “1) stiff neck; 2) severe headaches; 3) ringing in the ears; 4) limitation and pain on shoulders; 5) nausea and dizziness; 6) a compound scolioses nerve injury; 7) the cervical vertebrae No. 7 was out of place; 8) by reason of severe muscular contraction pressure was exerted on the nerves creating pain and dizziness, blackouts, ringing in the ears, general nervousness and insomnia; 9) the three occasions of unconsciousness described by the plaintiff could have been caused by malfunction of spinal cervical nerves affecting the blood supply to the brain, or by the vertebral artery being damaged, or by over stimulated nerves producing cervical anemia.”

At the outset of the trial defendant requested that the trial judge direct the following questions to the jury on voir dire: “1) Has any member of this jury or their immediate family ever engaged the services of a chiropractor within the state of Michigan? 2) Has any member of the jury or their immediate family ever engaged the services of a chiropractor in any state other than Michigan? The trial judge declined to present these interrogatories to the jury and defendant assigned that refusal as an error. On appeal denied.

Further, on appeal, on a Judgment for plaintiff, defendant alleged as error that the trial court should not have allowed plaintiff to testify as to his various complaints. Denied.

But more interestingly, defendant assigned as error that the court allowed the chiropractor who had treated plaintiff to testify that plaintiff’s injuries were permanent and that he would never be free of pain.

Said the Michigan court, “While this issue does not appear to have been specifically decided in this state, it has been resolved in other jurisdictions. The general rule is that a chiropractor is qualified to testify in a personal injury action concerning matters within the scope of his profession or practice, (citing cases from Texas, Kansas, Nebraska, Maryland and California, and an annotation, “Chiropractors competency as expert in personal injury action concerning matters within the scope of profession or practice.” 1957, 52 A.L.R. 2d. 1384.)

Further, said the Michigan court, “In the case of Bar, Dr. Vinnik testified as to general examinations made of the plaintiff, as to what was wrong with him, and as to whether plaintiff’s injuries were permanent. A reading of his testimony reveals that it was primarily concerned with injuries to plaintiff’s back and neck. A chiropractor in Michigan is permitted by statute to practice a restricted form of medicine. Since the state allows and regulates such practice, the court also must allow it as expert testimony albeit with some restrictions. Resultingly, this assignment of error also lacks merit.”

“Finally, defendant contends that the trial court committed reversible error by submitting plaintiff’s claims of future disabilityand damages[/ITAL]to the jury. We disagree. In the case at Bat, the plaintiff testified that he experienced sensations of pain, etc., up to the time of trial. Dr. Vinnik testified that, in his opinion, the pain which the plaintiff experienced would continue. With this evidence before the court, it was not error for the trial judge to instruct the jury on [ITAL]future pain and suffering.” [/ITAL]

So here, if we have nothing more, we’d have legal justification now for the chiropractor to testify in court as an expert on the permanency of an injury within his field whether a chiropractor or an orthopod or whomsoever testified on the other side.

Lawyers are reluctant to use chiropractors in court against orthopods. They make a mistake. They also make a mistake if they voir dire a jury on their use of a chiropractor. I find them on every jury some prospective jurors, if not themselves, their relations, have used, and successfully, chiropractors so there is inherent good will in that jury box, not animosity.

If the other side doesn’t examine, I don’t ask that these friends announce themselves then to be excluded as “biased”!

When I put a chiropractor on in a personal injury case, I spend a great deal of time qualifying him and letting the jury, (and the judge, too), know just how much schooling a chiropractor has, what he does, and the results of his treatments. I’m not concerned with the degrees of education, I am more concerned with the degrees of success in treatment.

I welcome a “withering” cross examination if only the opposing lawyer will ask, and invariably he does, “Why do you think you can treat this aliment, then?”

The usual and honest answer is, “Because I’ve treated so many with success!” And the “so many” may be elaborated on by me.

I don’t care who the orthopedic specialist or neurosurgeon or medical man is, he cannot have seen and treated and helped as many patients as the chiropractor within the chiropractor’s field. After all of this is brought out, then to let the judge tell the jury that it is within the chiropractor’s province to testify as to permanence of injury, makes a tremendous practical impression.

In Klein v. Haprper 186 N.W. 2d. 426, N.D., 1971, a judgment of $15,000 for personal injuries sustained by plaintiff after an automobile accident was affirmed on appeal, largely upon a chiropractor’s testimony.

Various North Dakota statutes define the practice of chiropractic, and activities of licensed chiropractors, the hospitals, institutions in which they may practice, and the titles which they may use and provide for the establishment of chiropractic hospitals.

The licensed chiropractor who has treated plaintiff in 1967 and 1968 following the January 1966 accident, testified that he had taken a case history, had taken and studied x-rays of Klein’s lower spine, and had treated him thirty-five times. He testified to his findings and his opinion as to the cause of Klein’s pain.

He was then asked the following question: “Now, doctor, based upon your training, education and experience, and based upon your current treatment of this particular patient, do you have an opinion based upon reasonable medical certainty as to whether or not this condition will recur permanently or not? Just answer yes or no.”

Answer: “Yes.”

Question: “Would you state that opinion, please.”

Mr. H objected as an improper question, “This man is not a medical doctor.”

The court, “I will overrule the objection.”

The chiropractor answered as follows. Answer: “According to the case history as reported to me or given to me by Mr. Klein, he stated that he had previously no back condition prior to 14 January, 1966, it is my opinion that Mr. Klein could be a recurrent patient and require periodic chiropractic care probably the remainder of his life.”

Holding that it was not error to permit the chiropractor to base his opinion testimony on reasonable medical certainty, the court elaborated, “It is a general rule that a chiropractor is competent to testify as an expert witness concerning matters within the scope of the profession and practice of chiropractic.”

In Lowman v. Kuecher, 246 Iowa 1227, 71 N.W. 2d. 586, 52 A.L.R. 2d. 1380, 1955, the Supreme Court of Iowa held that it was not error to permit a chiropractor in a personal injury action to answer the following question. “Could you say with reasonable certainty the extent of future medical care that will be required in this case?”

The objection was that the chiropractor was not qualified to testify as to “medical care”.

The court determined that the word “medical” pertains or relates to the science of medicine or to the practice or study of medicine and that, “medicine” is the science and art of preserving health and preventing and curing diseases, and that the “practice of chiropractic” is the practice of medicine although in a restricted form. See also the annotation 52 A.L.R. 2d. 1384.

Then there is Adrade v. Correia, 267 N.E. 2d. 503 (Mass., 1971).The Massachusetts court under the Massachusetts statute recognizing chiropractic, held that the trial court had not exceeded its discretion in finding a chiropractor qualified to give, in answer to a hypothetical question, the testimony admitted through him as to the casual relation of a hand injury with an automobile accident, where his expert testimony was derived partly from what he was asked to assume of facts already in evidence.

The reviewing court remarked, “Dr. Barron was not incompetent to give opinion testimony merely because he is a chiropractor and not a doctor of medicine. A chiropractor may be found by a trial judge to be qualified to give expert testimony within the scope of his experience, and the limited scope of the permissible practice of a chiropractor.”

There is also a New York opinion, Badke v. Barnett, 316 N.Y.S. 2d. 177, 2d. Dept. 1970, in which a judgment of verdict was affirmed for an automobile passenger injured in a rear-end collision. After referring to the statute, defining the practice of the statute, defining the practice of chiropractic, the intermediate New York court held that a licensed chiropractor may give an expert opinion on questions of diagnosis, prognosis and casual connection within the scope of the practice of chiropractic.

Following examination and treatment and based upon his examination which included the taking of X-rays, a chiropractor testified here that plaintiff was suffering from a subluxation, “that is, a slight overriding of one vertebra against another, short of a dislocation. As a result, nerve roots were compressed or ‘pinched’ at the vertebral openings. The consequent pressure on the affected nerves produced severe muscular contraction, known as a ‘spasm’. She was found to have tenderness and swelling of the posterior neck muscles indicative of spasms. Her shortness of breath was attributed to pressure of the phrenic nerve, which controls the diaphragm. The pressure by her in her left eye was traced to the impingement of other nerves as a result of the subluxation.”

Again, over the objection of defense counsel, the chiropractor was permitted to testify that, in his opinion, and with a reasonable degree of chiropractic certainty, the automobile accident was the component producing cause of the passenger’s injury. He further stated that, in his opinion, the injuries were permanent and major.

To the same effect, see Howell v. Cussons, 489 P. 2d. 1056, (Colorado, 1971), i.e. “reasonable chiropractic probability”.

In Elliot v. Patterson, 278 Atlantic 2d. 431, 1971, a Maryland court reversed the trial ruling which had granted the defense motion for a directed verdict, predicated on a finding that there was no medical testimony that could properly be submitted to the jury after the trial court had granted a defense motion to strike the testimony of a licensed chiropractor on the ground that “it was beyond his field of professional competence because it related to the practice of physical therapy, a field in which he was unlicensed.”

The chiropractor’s testimony, which on appeal was found to have been admissible, was that he had diagnosed plaintiff’s condition as “acute musculoligamentous strain of the cervical, dorsal, and lumbo sacral spine, and contusion of the left anterior chest.” The chiropractor testified, and which testimony should have been held proper, that his findings also included, “distorted standing posture, neck muscle spasms, limited motion rotating, flexing and extending the neck, shoulder blade pain, and back muscle rigidity”. He said his physical therapy treatments included, “moist heat packs, ultra-sound, soft tissue massage, and active and passive exercises of the spine”. The chiropractor was permitted to give his opinion based upon reasonable medical certainty, that this plaintiff’s automobile injury was the cause of his medical condition, and that he had sustained a fifteen percent permanent partial disability of the lower back and mild residual disability of the neck. The chiropractor also gave similar testimony of a second injured plaintiff appellant, and it was held that this testimony, likewise, was admissible.

There are still some courts who refuse to allow a chiropractor to testify as an expert in a personal injury case, but the importance is that these are now minority holdings and they are out of trend. Such a case is Allen v Hinson, 183 S.E. 2d. 852, 1971, in which the North Carolina Appellate Court held that a chiropractor could not testify as an expert.

But probably the most interesting of all is the Louisiana case of Ducot v. Allstate Insurance Co., 242 So. 2d. 103, 1970. This collision case involved a left-turning car hit from the rear by a passing car, where, even though the chiropractors are not licensed to practice in Louisiana, a chiropractor was held competent to testify to an accident victim’s injuries!

Quoting an earlier Louisiana decision, the intermediate court held that, “The fact that a witness is not licensed to practice under the laws of the jurisdiction is immaterial in so far as it concerns his competence to testify as an expert, which is based upon his specialized training, knowledge, and experience.”

And with this decision of the Appellate Court of Louisiana, chiropractors are still not allowed to practice in that state!

There are a number of other modern and trend decisions showing that the weight of authority throughout the United States now is that a chiropractor may testify, regardless of what specialty medicine man testifies on the other side, that an injury is permanent, painful, will require “X” amount of future treatment, that in reasonable medical certainty it was caused by trauma.

Armed with these decisions — and more are coming down each day — the plaintiff’s lawyer should have no hesitancy in using the chiropractor as his expert where the chiropractor has been the treating doctor.