Yagodinski: Another Reminder to Keep Experts in their Lane

Earlier this year, the Nebraska Supreme Court affirmed the preclusion of a chiropractor’s testimony for overstepping the bounds of his profession in opining that a plaintiff had sustained a traumatic brain injury in a rear-end motor vehicle accident, finding that such an opinion was outside the scope of chiropractic expertise.

In Yagodinski v. Sutton, No. S-20-317, 309 Neb. 179 (Neb. May 14, 2017), the plaintiff was rear-ended in a 2011 accident. Over five years after the accident, the plaintiff was referred to chiropractor John McClaren, D.C., who holds himself out as a “chiropractic neurologist” based on completing an American Chiropractic Neurology Board certification. To support his opinion that plaintiff sustained a traumatic brain injury, McClaren perform visual testing and attempted to perform a “neuropsychological battery” (on a tablet) to prove the plaintiff’s cognitive deficits. The defense expert neurologist (a board-certified medical doctor) offered evidence that McClaren’s methodology for diagnosing a traumatic brain injury was not generally accepted by medical neurologists. Accordingly, the trial court granted the defense’s motion in limine to preclude McClaren from testifying that the plaintiff had sustained a traumatic brain injury. Ultimately, at trial, both McClaren (and the defense neurologist) testified that the plaintiff sustained a whiplash injury.

Interestingly, the court relied on Nebraska’s statutory definition of chiropractic practice, including the diagnostic methods chiropractors can use in their practice. This is a tool we regularly use when challenging overreaching opinions from experts. Each state’s statutes defining the practices of certain medical professionals provides the bounds that those treaters should not overstep and we recommend enforcing those restrictions when treaters attempt to overstep the bounds of their profession. Additionally, the court emphasized that absent additional licensure and credentialing, no amount of additional education and training can expand the scope of a professionals’ practice area, as determined by the state’s legislature.

We increasingly encounter chiropractors and other “paraprofessionals,” as the court described them, who attempt to diagnose traumatic brain injuries, even when medical doctors disagree. However, as the Nebraska Supreme Court put it: “no amount of additional education will qualify a licensed chiropractor to offer expert testimony about a patient that is outside the scope of chiropractic practice . . . absent additional licensure and credentialing.”

As the Nebraska Supreme Court further explained, while there may be an appropriate role in litigation for non-medical doctor healthcare professionals such as chiropractors, optometrists, speech therapists, etc., “when health care paraprofessionals perform testing for [traumatic brain injuries], it will not be scientifically valid nor reliable.” Yagodinski serves as an important reminder to challenge medical experts who step outside of their expertise.

Patrick Mullinger also contributed to this blog