An alternative revenue strategy available to chiropractic physicians is to work as an expert witness in malpractice cases.
When a chiropractic physician is alleged to have breached the standard of care (SOC), another chiropractic malpractice expert witness must be retained to evaluate the case. The SOC for one healthcare profession cannot be evaluated by a member of another healthcare profession. Only a chiropractic physician can opine on the SOC for the chiropractic profession, just as only a medical doctor can opine on the SOC for the medical profession.
Expertise and experience
This is not as easy as some would have you believe. Most chiropractic physicians do not understand the standard of care. The SOC is not the care that would be provided by an average chiropractic physician under same or similar circumstances. The SOC is not simply following legal and regulatory requirements.
Expert knowledge of research is necessary to understand the standard of care. For example, having read excerpts from the 2001 Haldeman1 study and 2008 Cassidy2 study does not make you an expert on the SOC in cervical spine manipulation (CSM) and stroke. Reading the abstract from 2024 Trager3 study does not make you an expert in lumbar spine manipulation and cauda equina syndrome. A chiropractic malpractice expert witness is embarrassed in depositions where the opposing attorney knows more about the topic than the alleged “expert”.
Expertise in licensing statutes is required, and licensing statutes vary from state to state. Is the state scope of practice neuromusculoskeletal or musculoskeletal? Are there specific guidelines for the practice of chiropractic, as in North Carolina? What are the state board requirements to practice physical medicine, acupuncture and dry needling?
Most of your time will be spent educating yourself, becoming an expert. You should take every postgraduate seminar possible on your topic. For example, I have taken every postgraduate seminar I am aware of on CSM and stroke, 34 courses. My opinion on this topic has never been challenged in court. You will need that level of expertise, or the opposing attorney will discover your weaknesses in deposition.
Your opinion on the standard of care must be both evidence-based and experience-based. A medical expert witness usually has at least five years in clinical practice. Most states mandate that an expert witness devote at least half of their professional efforts to clinical practice, so at least 20 hours per week in active practice is normally required.
If you have the willingness to become an expert in the SOC, you may want to consider becoming a chiropractic malpractice expert witness.
The standard of care
As a chiropractic malpractice expert witness you are under a duty to follow the standard of care. Your job will be to evaluate the case for any breach in the SOC. The SOC for the chiropractic profession is the care that would be provided by a reasonable and prudent chiropractic physician under same or similar circumstances. The SOC is determined from, but is not limited to:
- Peer-reviewed research, practice guidelines and best practices
- What is taught in accredited chiropractic graduate programs
3. What is taught in accredited chiropractic postgraduate programs
4. Legal and regulatory requirements for the practice of chiropractic
5. Community standards in the local geographical region
Causation
A chiropractic expert witness can be asked to speak to causation in a malpractice case. Causation is often reserved for orthopedists, neurologists and other medical specialists. However, medical specialists are not experts in spinal manipulation or other services provided by chiropractic physicians.
For example, to render an expert opinion on a causal relationship between CSM and stroke, the expert should have expertise and experience in both areas. Neurologists have expertise and experience in stroke, but most have zero expertise and experience in CSM. Chiropractic physicians have expertise and experience in CSM, but most have little expertise or experience in stroke. If a chiropractic physician can gain above-average expertise and experience in stroke, their opinion on causation may be admitted in malpractice cases.
Report writing, depositions and trials
Contrary to what you may see on television or in the movies, most malpractice cases never involve deposition or court testimony. Most of your time will be spent reviewing thousands of pages of records, reviewing the research and the law, formulating your opinion and writing reports.
In the minority of cases that do go to trial, the expert witness must be confident and articulate in front of a judge and jury. Depositions are more common, but still do not occur with most cases. A good impression in deposition will avoid many trials. If an attorney can’t put a dent in your opinion in a deposition, they are not likely to try it in court.
If a case makes it to court, the opposing attorney will attack your knowledge of the case, your knowledge of the standard of care, your credentials and your experience. You will need an extreme amount of confidence to face down such a critique. This confidence will only come from an expert knowledge of the law, research and the standard of care.
Get hired
The easiest way to get your name out there is a listing on an expert witness website, such as SEAK the Expert Witness Training Company, the Expert Institute or JurisPro. As with any business, maintain a professional website and social media presence. As you gain more experience, attorneys will refer your services to other attorneys.
Network with other expert witnesses. The American College of Chiropractic Consultants and the ACA Council on Forensic Sciences are good resources to use to meet other chiropractic physicians doing malpractice cases.
One of the best ways to get the attention of attorneys is to publish research. Many malpractice attorneys know the research better than some chiropractic experts. Having your name on peer-reviewed research goes a long way when marketing your services to attorneys.4
Get paid
Expert witnesses charge by the hour for three basic categories of service: records review, depositions and court testimony. What you charge per hour is up to you. SEAK the Expert Witness Training Company puts out an annual Survey of Expert Witness Fees, broken down by specialty, which can be obtained online. In 2024, I see chiropractic expert witnesses charging in the range of $300 to $700 per hour. A retention contract is recommended. You can purchase a retention contract from any expert witness consultant.
Get training
There are companies offering in-person and online training courses for medical expert witnesses. These include courses on how to start an expert witness practice, how to write effective reports and how to excel in deposition and court testimony.
Impartiality
You will be retained to give an impartial opinion. If the defense retains you, you are not being retained to defend the chiropractic physician. If the plaintiff retains you, you are not being retained to find fault with chiropractic physician. The attorneys represent their clients; you simply give your opinion and defend it. If you think it is your job to defend chiropractic physicians from baseless allegations of malpractice, this work is not for you. Likewise, if you see yourself standing up for the rights of injured patients, this work is also not for you. You must be able to detach yourself from the case and give an honest opinion without any bias for the plaintiff or the defendant.
STEVEN BROWN, DC, DIPL MED AC, is an expert witness for the plaintiff or defense, emphasizing cases of cervical spine manipulation, vertebral and carotid artery dissection and stroke. For more information, visit thechiropracticexperts.com.
References
- Haldeman S, et al. Arterial dissections following cervical manipulation: The chiropractic experience. CMAJ. 2001;165(7):905-906. PubMed. https://pubmed.ncbi.nlm.nih.gov/11599329/. Accessed November 19, 2024.
- Cassidy JD, et al. Risk of vertebrobasilar stroke and chiropractic care: Results of a population-based case-control and case-crossover study. Spine (Phila Pa 1976). 2008;33(4 Suppl):S176-183. PubMed. https://pubmed.ncbi.nlm.nih.gov/18204390/. Accessed November 19, 2024.
- Trager RJ, et al. Association between chiropractic spinal manipulation and cauda equina syndrome in adults with low back pain: Retrospective cohort study of US academic health centers. PLoS One. 2024;19(3):e0299159. PubMed. https://pubmed.ncbi.nlm.nih.gov/38466710/. Accessed November 19, 2024.
- Brown SP. Plausible mechanisms of causation of immediate stroke by cervical spine manipulation: A narrative review. Cureus. 2024;16(3):e56565. PubMed. https://pubmed.ncbi.nlm.nih.gov/38510520/.
