Chiropractic Expertise Overcoming Motions in Limine and Evidentiary Challenges Part 2
Expert Nature of Chiropractic Testimony
ER 702, dealing with testimony by experts states:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
To the same extent that an allopathic medical doctors brings specialized knowledge and training to bear upon healthcare concerns, so too does the licensed chiropractic doctor. The chiropractic doctor's analysis, examination, diagnosis, care and treatment constitute scientific, technical and specialized matters beyond the ken of almost all jurors and some judges. It is appropriate, therefore, for the court to seek assistance from, and to rely upon the expert testimony of the chiropractic doctor.
Cases Distorted By Defense Counsel
The case of Dobbins v. Common Wealth Aluminum, 54 Wash. App. 788, was a 1989 case involving an injured worker who sought treatment from an Oregon chiropractor. At that time, the Oregon chiropractor was licensed to practice in Oregon where he was qualified to treat knee injuries. As you know, Washington chiropractic doctors were not allowed to treat knee injuries in 1989. Accordingly, the Appellate Court sustained the exclusion of chiropractic testimony regarding causation of the knee injury because it was outside the scope of chiropractic practice, as defined by Chapters 18.25 and 18.26, RCW.
The second basis for the exclusion was the fact that the applicable Washington Administrative Code provision, 296-201-002, defined a chiropractor as a doctor or practitioner, but not as a physician. (NOTE: That Medicare now refers to DCs as physicians) The court found that examinations or evaluations of permanent bodily impairment can be made only by "physicians" currently licensed to practice medicine and surgery. Furthermore, the applicable L & I WAC, 296-215, provided that only treatment which falls within the scope and field of a practitioner's license will be allowed.
It should also be noted that this case dealt with arthroscopic surgery confirming the diagnosis of an osteopath who was allowed to testify because such testimony is within the scope and practice of an osteopath.
Clearly, the above case is distinguishable from the vast number of cases in which chiropractors testify regarding spinal injuries. Furthermore, with the extension of scope of practice to treatment of extremities when related to a spinal condition, some of the relevancy of Dobbins v. Common Wealth Aluminum would be diminished, but clearly not eliminated. Under this case, a chiropractor is not qualified to testify outside their scope of practice, and that is as true today as it was in 1989. The only difference is "scope of practice" is broader.
The second case is Kelly v. Carrol, 36 Wn.2d 482, a 1950 case which dealt not with a chiropractor, but with a drugless healer. The only reference to chiropractors is in dicta wherein the court stated that physicians and surgeons of experience are presumed to be acquainted with all matters pertaining to their profession and to be competent to testify concerning the same; chiropractors, on the other hand, are limited in their testimony to their special field.
Once again, this is simply a restatement that chiropractic doctors can testify only within the scope of their practice. That was not, however, the holding of the case which dealt with drugless healing. Accordingly, with the exception of the dicta stated above, the case is not on point.
Second, the reference in the some defense briefs that examinations or evaluations of permanent bodily impairment can be made only by a physician currently licensed to practice medicine is a misinterpretation of both Dobbins and a cited case of Brannan v. Department of Labor & Industries, 104 Wn.2d 55 (1985). Both of those cases cite to the Washington Administrative Code provision that the Department of Labor & Industries restricts evaluations of permanent bodily impairment to physicians and surgeons because their category system includes evaluations that are outside the scope of practice for chiropractic doctors. By statute, this prohibition was changed to allow chiropractic doctors to perform special medical examinations within their scope of practice. See RCW 51.32.112 (2) See also Loushin v. Itt Rayonier, 84 Wn App 113, 924 P2d 953 (1996). There is no case law or statute in the State that prohibits doctors of chiropractic from making examinations or evaluations of permanent bodily impairment within their scope of practice. Accordingly, the statement in the brief is erroneous.
The last element often argued in defense briefs is a distortion of the two licensing acts in an attempt to somehow argue that, to the extent that diagnosis, cure, or prescription regarding human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, is somehow exclusively confined to the practice of medicine and, therefore, a chiropractic doctor cannot diagnose. This clearly flies in the face of the language in RCW 18.25.005(3) dealing with doctors' practice of health care dealing with the diagnosis, analysis, care, or treatment. The conclusion that diagnosing for an injury is the practice of medicine and is not within the scope of chiropractic practice is absurd.