Chiropractor Medical Expert’s Opinion on Causation Based on Lack of Pre-Existing Neck Pain Properly Excluded When Neck Pain Pre-Dated Surgery

A maxillofacial surgeon removed a man's four wisdom teeth. After the dental surgery, the man allegedly experienced severe and permanent neck and spinal pain. Two years later the man filed a malpractice and informed consent action claiming that the surgeon’s use of excessive force during the removal of his wisdom teeth caused his injuries.


The man timely filed an expert medical report and affidavit of a chiropractor. The chiropractor was the only expert prepared to testify for the man on the issue of causation, specifically, that the surgeon's actions during the surgery caused the man's permanent neck and spinal pain. The chiropractor's conclusions and expert report rested on his belief that the man had not suffered from any neck pain before the surgery. In fact, the man had preexisting pain in his neck that predated the surgery. After being informed of that fact, the chiropractor submitted an affidavit, after the discovery deadline, stating that his medical opinion remained unchanged despite the new information about the man's preexisting neck pain. On the defendant’s motion, the Superior Court excluded the chiropractor’s expert medical report and affidavit. After a trial, a jury rendered a verdict for the surgeon on all counts.


The Supreme Court of Delaware affirmed the judgment for the surgeon. The court held that that the Superior Court properly excluded the chiropractor’s expert report under Delaware Rule of Evidence 702 because the report was not based upon sufficient facts or data. The court reasoned that the chiropractor’s conclusion—that the surgeon's surgery caused the man's neck and spinal injuries—was predicated on his belief that the man had no history of neck and spinal injuries before the dental procedure. That erroneous factual premise rendered the chiropractor's medical opinion (and expert report) about the cause of the man's injuries completely incorrect.


See: Bell v. Fisher, 2013 WL 1120867 (Del.Supr., March 18, 2013) (not designated for publication).


See also Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability.