FAIRFAX LAWYERS KEEP YOU UPDATED ON DC METRO LAWS

A SERVICE OF GROSS & ROMANICK, PC

Wednesday, September 17, 2008

The Chiropractor: An Expert and An Expert Witness

If you've been injured in a car accident, you need to seek legal representation. We here at Gross & Romanick understand the pain and stress you are going through in dealing with your injury, lost income, and unexpected medical expenses. Our firm represents injured individuals and their families in serious personal injury and wrongful death cases--so please contact us today.

In the meantime, please review a recent article we published on whether or not you can or should use chiropractors as expert witnesses.

***

As recognition of the effectiveness of chiropractic increases, the acceptance of the chiropractor as an expert witness in the courtroom is also growing. This recognition may be grudging on the part of the "traditional" medical community, even after the American Medical Association's stinging defeat in Wilk v. AMA. However, any number of studies attest to what millions of auto accident victims and back pain sufferers have known for decades. Even Time, that most-read of the newsweeklies, gave its seal of approval in a report last fall headlined, "Is There Method in Manipulation?" "Now," the magazine piece said, "almost despite itself, mainstream medicine has started to take notice," and it cites reports of medical doctor groups holding symposiums on back manipulation and of orthopedic surgeons admitting they referred patients for such treatment.

In addition to this recognition by the public, the medical community and the media, chiropractic doctors have achieved considerable statutory recognition in many jurisdictions, including the Commonwealth of Virginia. The definition of reimbursable medical expense in a Virginia automobile insurance policy must include payment for chiropractic care (see "Helping Clients Negotiate the Insurance Maze"). That language appears because the Virginia Insurance Code, Section §38.2-2201, requires that any insurance company licensed to issue auto liability insurance in the Commonwealth of Virginia provide chiropractic benefits. Virginia's chiropractic doctors are licensed by the Commonwealth's Board of Medicine, the same body that licenses medical doctors. Becoming licensed as a chiropractic doctor involves rigorous testing, even after the awarding of the Doctor of Chiropractic degree.

Another provision of the Virginia code is important to both the chiropractic and the legal professions; viz., the admissibility of expert testimony in court by chiropractors. "A doctor of chiropractic," reads Section 8.01-401.2, "when properly qualified, may testify as an expert witness in a court of law as to etiology, diagnosis, prognosis, and disability, including anatomical, physiological, and pathological considerations within the scope of the practice of chiropractic ..." Thus chiropractic doctors by Virginia statute are considered to be experts and cannot be excluded as experts in their field of medicine.

Nearly 20 years ago, celebrated defense attorney Melvin Belli noted in an article in The Digest of Chiropractic Economics that, while the chiropractic doctor would scarcely expect to be called to testify on a matter that is out of his field, "... the list of what is 'out of his field' is daily being limited, at least by the courts." Of particular interest is Belli's contention, dramatically illustrated by a Michigan case, that chiropractors can testify successfully as to the permanence of an injury, and hence as to future pain and suffering, even against the opinion of orthopedists and other medical men. In that case, Corbin v. Hittle, a chiropractor testified that his patient's injuries were permanent and that he would never be free of pain. Challenged by the defense as reversible error, the testimony was allowed to stand by the appeal court, which said in essence that, since the state allows and regulates the practice of chiropractic as a restricted form of medicine, it must also allow it as expert testimony.

Edward Gross has represented many clients who are patients of chiropractic doctors, and he does not hesitate to call upon them as expert witnesses. Mr. Gross finds these doctors to be well prepared in offering expert testimony and able to demonstrate to juries that they understand their patients' problems.

In reflecting on his successful presentation of the case for Dr. Wilk and his colleagues, Plaintiffs' Attorney George P. McAndrews stated that one of the highlights of the case was the difficulty the plaintiffs had in finding a law firm that was willing to undertake the case. He was told by Dr. Wilk that 15 or 16 other firms that had been approached all found some kind of a conflict, usually representation of some part of the adversary medical community. It took three or four years, Dr. Wilk told him, to find a firm that would take this antitrust case. In retrospect, looking back at that landmark decision, perhaps some of those bashful lawyers would be less reluctant today.

When the victim of a violent collision enters the chiropractor's office seeking relief for his or her considerable pain and discomfort, the stress that patient is experiencing is apparent to the doctor. As the doctor's patient and as the lawyer's client, the victim needs an advocate, a role that the chiropractic doctor and an attorney who understands chiropractic are amply prepared to fulfill.