by Gary N Lewkovich, DC, QME, Chiropractic Orthopedist and Shawn Steel, Esq.
To anyone who has been in practice for several years, it is no surprise to hear that defense “experts” in PI cases can say the strangest things. Sometimes these opinions border on the absurd. Other times we hear testimony that is clearly fraudulent. You realize these “comedians” are swaying uninformed juries with such comments. Plaintiff attorneys can plan responses for rational comments but are often caught flat-footed when faced with opinions defying reality. Without a rebuttal expert, a rarely used and expensive tactic, the defense is often victorious in such scenarios.
Recent legal efforts, via court decisions, have endeavored to make experts more accountable when rendering opinions. In theory, courts now require better science and not just highly biased, unsupported opinions. Unfortunately the stream of unsupportable defense opinions continues. Consider a few examples from various Chiropractic “experts”:
1. A written statement, with “references,” that the force of a typical spinal manipulation to the neck is equivalent to the force of a typical low speed collision.
2. Testimony in court that since the car damage was less than $1000, there could not have been any bodily injury worthy of treatment.
3. A written report opining that the nine weeks of Chiropractic care was outside the six-week parameter of the Mercy Guidelines. This same expert went on to suggest that since the CCA had endorsed the Mercy Guidelines and that the treating doctor was a CCA member, then the treating doctor was, therefore, guilty of unethical conduct.
4. Deposition testimony states that it is impossible to have suffered any bodily injuries in an impact below five mph.
5. The radical conclusion that the Chiropractor should not have adjusted a five year old child, even once, because children’s bones are primarily cartilage and not bone.
These are real examples from real defense experts. If these statements go unchallenged, psychologists know that repetition begets believability. Since jury decisions are based upon perceptions rather than realities, statements such as those above are often taken to heart. Irrational testimony can cause harm to patients, doctors and the profession. All the while, the defense experts collect their checks and go their merry way without repercussion. We believe that fraudulent testimony by any Chiropractor is unfair, and unethical, and needs to be addressed by the Chiropractic Board.
What can the treating Doctor of Chiropractic do in such cases? Unfortunately, without reviewing a significant amount of records on the defense expert, it is difficult to anticipate what might be said. Thus, your ability to address the wrongs done by a defense expert are typically limited to the time after the case is tried. This is typically the same time that all members on the plaintiff’s side express their frustration, lick their wounds and get on to other matters. However, the next time this happens, put your frustration to good use. We believe there is a simple course of action that may prove helpful in the long run.
What is our recommendation? Simply this: use the course of action outlined by the Laws and Regulations Relating to the Practice of Chiropractic. That’s right, it is that little book from the California Board of Chiropractic Examiners. This text contains loads of definitions, dos, don’ts, and other in formation. There are provisions specifically outlined in this manual that can, when properly utilized, encourage defense experts to play fairly and testify honestly.
Here is how it works. As a Chiropractor, you are legally and ethically charged to report certain types of inappropriate conduct. Sometimes this obligation involves reporting patients who are suspected of child abuse. At times this duty involves reporting Chiropractors who violate the rules and/ or laws. This requirement may be irksome in some cases, but there are times when we should welcome it. This is especially true when it comes to reporting Chiropractic defense “experts” who make statements that are dishonest, misrepresentative, or outright fraudulent.
The relevant sections of the law and regulations are 314 and 317, under Title 16. These sections follow in extracted form:
Title 16, 314: It shall be the duty of every licensee to notify the secretary or any member of the Board, of any violation of the act, or of these rules and regulations, in order that the Board may take appropriate disciplinary action.
Title 16, 317: Unprofessional conduct includes, but is not limited to, the following:
a) Gross negligence.
b) Repeated negligent acts.
j) The commission of any act in volving moral turpitude, dishonesty, or corruption, whether the act is committed in the course of the individual’s activities as a license holder, or otherwise.
k) Knowingly making or signing any certificate or other document relating to the practice of chiropractic which falsely represents the existence or nonexistence of a state of facts.
p) The participation in an act of fraud or misrepresentation.
Experts who knowingly, especially on a repeated basis, violate the above regulations should be held accountable. Making statements that are dishonest, falsely representing the facts, or misrepresenting the accepted literature are acts that should be reported to the chiropractic board. View this obligation as a public service. It is also a potent restraint against the unprofessional conduct of certain Chiropractic defense experts.
But before you run out and file a complaint against a defense expert, there are some things to consider first. Remember the following points:
1. The expert’s opinion alone is not typically grounds for filing a complaint. Even doctors can have opinions outside the mainstream. But when facts are the issue, the facts are far less subject to interpretation. On these grounds the offending expert is most vulnerable to disciplinary action. Double -check all your facts and all of your sources of facts before filing a complaint.
2. Don’t file a frivolous complaint. Filing a trivial complaint is a waste of everyone’s time and hurts the credibility of the filer. If you have doubt about the relevance or seriousness of a possible complaint, then you probably should avoid the issue.
3. This complaint process is not designed as a method of retaliating against someone you dislike. It is a serious process with serious consequences. Use this approach sparingly, wisely, and fairly.
Remember that anyone can file a complaint. In a given case, the patient, treating doctor and attorney can all file separate complaints. If there are multiple violations, so state. Provide whatever written proof is available. You do not need a special form to file a complaint unless you are the consumer (patient). A copy of this form is available from the Chiropractic Board. You must, however, clearly detail the facts and the violation(s) and provide whatever written proof is available. The Board may move slowly at times, but they are required to take all complaints seriously and to act accordingly. Their powers of discipline are far reaching and can extend all the way to license suspension or revocation.
Appropriate forms are obtainable from the Board of Chiropractic Examiners at: Board of Chiropractic Examiners, 2710-N Gateway Oaks Drive, Suite 100, Sacramento, CA 95833, phone (916) 263-5355, fax (916)263-5369.
Remember, in a given area, there are usually a very limited number of Chiropractic defense experts. Only file against the most flagrant abusers. Once the State Board has chastised an abusing “expert,” several things happen. First, the involved “expert” becomes gun shy and more restrained. Second, other defense experts learn vicariously through the grapevine that the same fate may await them. Third, insurance companies become less likely to use “damaged goods” in future cases because the question of State Board actions may arise. Fourth, once the word spreads among other Chiropractors that these brazen “experts” are not beyond the law, more Chiropractors are encouraged to file complaints. With your help, we are convinced that experts can
be made more accountable for their actions, resulting in greater justice in the legal system.
About the Authors
Gary N. Lewkovich, DC is the chairperson of the CCA ‘s Personal Injury Committee. He is a chiropractic orthopedist, a QME, the author of numerous articles for the CCA Journal, and a frequent lecturer at Los Angeles College of Chiropractic. He is also editor of the Personal Injury Review, a monthly newsletter to attorneys, and specializes in personal injury cases. For the last 17 years he has practiced in San Marcos, CA.
Shawn Steel, Esq. comes from a family of Chiropractors and has a long history of being an energetic and dedicated de fender of Chiropractic. He teaches jurisprudence at Cleveland Chiropractic College, Los Angeles and quarterly at Palmer West and LA CC. Mr. Steel is known as an exuberant and informative lecturer throughout the nation. He has three offices in California and specializes in personal injury.
October 2000 CCA