SILLS, P.J.
I. INTRODUCTION
The precise issue in this appeal is whether a family practice physician is ipso facto unqualified to render an expert opinion to the effect that a chiropractor should have known the condition the chiropractor was treating was not amenable to chiropractic treatment. This is not really a "standard of care" case in the strictest sense. The question is not whether the proper chiropractic treatment was rendered, but rather whether it was negligent on the part of the chiropractor not to realize and inform the patient that the patient's condition was beyond the competence of the chiropractor in the first place.
It is, however, a case where the precedent is clear. Ellinwood v. McCoy (1935) 8 Cal.App.2d 590 [ 47 P.2d 796] and Abos v. Martyn (1939) 31 Cal.App.2d 705 [ 88 P.2d 797] are directly on point. Ammon v. Superior Court (1988) 205 Cal.App.3d 783 [ 252 Cal.Rptr. 748], Chadock v. Cohn (1979) 96 Cal.App.3d 205 [ 157 Cal.Rptr. 640], Hutter v. Hommel (1931) 213 Cal. 677 [ 3 P.2d 554], and Wallace v. La Vine (1940) 36 Cal.App.2d 450 [ 97 P.2d 879] are substantively on point. All of these cases stand for the rule that an M.D. can testify to the failure of a chiropractor to inform a patient that a condition is beyond the competence of chiropractic. Further, even if there were no California precedent on point, a decision from the New Jersey Supreme Court, Rosenberg by Rosenberg v. Cahill (1985) 99 N.J. 318 [ 492 A.2d 371] ( Rosenberg v. Cahill), provides highly persuasive reasons why medical doctors are competent to testify as to the failure of chiropractor to recognize when a condition is beyond their competence. We therefore reverse the judgments rendered in favor of the two defendant chiropractors in this case.
Ordinarily, such a case — wholly controlled by clear precedent — would not merit publication under rule 976(b) of the California Rules of Court. Why simply add to the official reports yet another case applying a well-established rule? However, in this case there is a dissenting opinion, and we are not unmindful of the considerable body of academic scholarship critical of intermediate appellate courts that do not publish cases with dissents. (E.g., Pearson, Citation of Unpublished Opinions as Precedent (May 2004) 55 Hastings L.J. 1235, 1266, fn. 268 [noting study that significant number of cases with dissents go unpublished "despite the fact that disagreement on the panel indicates the cases are `controversial'"].) As far as the majority is concerned, there is something questionable about a decision not to publish when there is a vigorous dissent — it suggests that the majority are not willing to expose their decision to the additional scrutiny that necessarily comes with publication. To put it another way, if there is a dissent, and the majority do not publish, it suggests that they (or at least one of them) lack the courage of their analysis. In that regard, while the dissent charges that we "misapprehend the holdings" of all these cases, we invite readers to decide for themselves.
II. FACTS
On October 1, 2001, Kevin M. Enslen went to a hospital emergency room, complaining of severe back pain. The emergency room physician, Andrew Khan, prescribed pain medication and bed rest. At the time Enslen was also suffering "flu-like" symptoms, including fever, sweating, nausea, and had a visible infection of his arm and thumb, severe headaches and loss of vision in the right eye.
Khan is also a defendant in this action, but not a party to this appeal. This appeal concerns only the two chiropractor defendants.
Still suffering the flu-like symptoms, on October 5 and 6, Enslen went to see chiropractor Charles Miles for acute mid- and low-back pain. Miles diagnosed "L4-5 subluxation," and "lumbar sprain/strain with associated muscle spasm." Both days Miles performed chiropractic adjustments on Enslen.
On October 8, 9, 10, and 12, Enslen saw another chiropractor, Robert Kennedy. (Kennedy also is known in the record as Mark Kennedy.) Kennedy diagnosed a variety of maladies, including "lumbar sprain, lumbar intervertebral disc syndrome," and "lumbar radiculitis." On each of the four visits, Kennedy also performed a chiropractic adjustment and myofascial release therapy on Enslen.
On October 16, Enslen returned to the same hospital emergency room, with complaints of nausea, vomiting, diarrhea, and a fever. Khan examined Enslen again, and ordered hydration and blood tests. Less than 24 hours later those tests revealed a staph infection.
Unfortunately the diagnosis came too late. While being re-admitted to the hospital, Enslen suffered a debilitating stroke caused by a raging infection ("bacterial endocarditis").
Enslen then sued the various medical providers involved in his treatment since October 1, including the two chiropractors, Miles and Kennedy, on the theory that in failing to tell him that he had a non-chiropractic condition, vital medical treatment of the staph infection was delayed. The two chiropractors eventually sought summary judgment on the theory that Enslen could prove neither negligence nor causation in their treatment of him. Each presented a declaration from a chiropractor and a medical doctor. The chiropractor opined that both Miles and Kennedy had complied with the chiropractic standard of care in their treatment of Enslen, while the medical doctor essentially opined that it made no difference what the two chiropractors might have done, the patient still would have suffered "the same medical outcome."
The trial court granted summary judgment on the theory that Enslen's competing expert, Melvyn Krause, a family practice physician, was unqualified to offer an opinion on the negligence of the two chiropractors in failing to realize that their patient was not suffering from a condition amenable to chiropractic treatment.
Because Krause's declaration is the focus of this appeal, we will set forth its contents at length.
Krause is board certified in family practice, and has practiced in Southern California for more than 42 years. He also stated, for what it was worth, that he was "readily familiar with the standard of care for medical practitioners, including chiropractors."
Our dissenting colleague does not think it was worth anything. As we show anon, though, precedent has allowed medical testimony in chiropractic malpractice cases without even that.
Krause has also carefully reviewed Enslen's medical records from the two chiropractors (and other sources), and noted the following: That when Enslen "presented" to Miles and Kennedy, Enslen had a "triad of symptoms" indicating subacute bacterial endocarditis, namely severe back pain, fever, and a source of infection in the right arm. Krause also stated that when Enslen saw Miles on October 5 and 6, Enslen's pain was "noted to be in the mid back, constant and radiating to lower back, buttocks and proximal anterior thighs" and therefore was "clearly not radicular or nerve root pain." The pain was also extremely severe — a 10 on a scale of 1 through 10, and constant, also indicative that it was "not musculoskeletal pain." In fact, Enslen had suffered this same back pain prior to his visit to the hospital emergency room on October 1.
The medical profession uses the word "present" in the same screw-ball way that the legal profession uses the word "notice." Doctors say "present" when they mean "present oneself," "showed," or "displayed himself or herself" much like lawyers say "notice" when they mean "send notice to."
Krause then mentioned Miles' diagnosis of an L4-5 subluxation. Miles had taken no x-rays, and in Krause's opinion a physical exam would not show subluxation. Moreover, noted Krause, "subluxation at L4-5 is very rare absent a history of major trauma, such as a car accident, and no such history" was "present in this case." True, some "congenital subluxation can occur at L5-S1" but it is "usually just incidental and asymptomatic." And when such subluxation happens it certainly doesn't rate a 10 on a 1-through-10 scale of pain.
Krause further noted that "[m]ost low back or mid back musculoskeletal problems in an otherwise healthy 34-year-old male typically resolve within 4 days after onset," and its particular location, it was clear that Enslen's pain was too severe, had gone on too long, and been too constant to be a "chiropractic disorder." Since Enslen was clearly suffering from flu-like symptoms at the time, including fever, sweating, nausea, had "obvious signs of infection on his arm and thumb," and complained of severe headaches and the loss of vision in his right eye, Miles had a clear duty to refer Enslen to a qualified physician.
As to Kennedy, by the time the patient saw him on October 8, he had had low back pain for more than a week despite taking Vicodin, Motrin, and Flexeril. Moreover, each of Kennedy's diagnoses was clearly flawed: Kennedy's diagnosis of a lumbar sprain was not reasonable given the history of low back pain for more than a week despite the medications he was taking. Kennedy's diagnosis of lumbar intervertebral disc syndrome was not reasonable because of the lack of "radicular symptoms." Kennedy's diagnosis of lumbar radiculitis was not reasonable for the same reason. And Kennedy's diagnosis of lumbar myofascitis was not reasonable because the patient was not responding to all the medications he was taking. Moreover, there was no improvement by Enslen's last visit to Kennedy. Again, given the character, severity, location and constancy of the pain, the obvious signs of infection in the right arm and thumb, and the fact that the patient was complaining of headaches and loss of vision in the right eye, Kennedy too should have figured out that Enslen's condition was beyond the ability of a chiropractor to treat.
As mentioned above, the trial court granted summary judgment despite Krause's declaration. After an unsuccessful motion for reconsideration, a formal judgment was granted in favor of Miles and both defendants obtained a formal order of summary judgment. We construe the formal order in favor of Kennedy to also include a formal judgment, so as to facilitate this appeal as to both defendants, otherwise perfected as to Miles. (See, e.g., Francis v. Dun Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539 [ 4 Cal.Rptr.2d 361].)
While our dissenting colleague takes us to task for "mischaracteri[zing]" the evidentiary record, the fact is that (1) this was a case that comes to us from summary judgment, so the reasonable inferences (e.g, that the plaintiff was actually suffering flu-like symptoms at the time he "presented" to the chiropractors) must be drawn in favor of the plaintiff. The dissent also ignores Dr. Krause's evident familiarity with back pain and subluxation. Moreover, we reiterate that this case comes to us on a motion for summary judgment. If this case had come to us from trial, Dr. Krause's familiarity with chiropractic qua chiropractic would probably have been the subject of considerable exploration. Here, though, there is no indication that the defendants sought to take Dr. Kruase's deposition to ascertain the extent of his knowledge. We have only his declaration, with its evident familiarity with diagnosis, back pain and subluxation to go on. In the context of opposition to a motion for summary judgment, that is enough to create a triable issue of fact as to Dr. Krause's qualification to testify as an expert witness.
That motion involved a supplemental declaration from Krause indicating that was "familiar with the training and licensing of chiropractors" because he had been involved in the "debate" between the California Medical Association and the California Chiropractic Association "regarding the dispute over what types of spinal conditions chiropractors were qualified to treat." Because the majority of this panel consider Krause's original declaration to be sufficient, we will not explore the question of to what degree the second declaration might have made any difference.
However, this indulgence is prompted only because the merits of the appeal as to Miles must be decided anyway. The current trend in the intermediate appellate courts is to force litigants to go back to the end of the line if they file a (premature) notice of appeal. (E.g., Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695-1696 [ 40 Cal.Rptr.2d 125].) Here, in effect, Miles held Kennedy's place in line for the benefit of the appellant.
III. DISCUSSION A. The Standard of Review: A Twist on the Usual Abuse of Discretion Standard
To reiterate: Plaintiff's case against the chiropractors is not premised on the theory of improper chiropractic treatment qua chiropractic treatment (e.g., a poorly executed "Palmer adjustment") or even on a theory that the two chiropractors were under a duty to recognize that the plaintiff was suffering from the specific staph infection he was. The theory of the plaintiff's case is merely that the two chiropractors should have recognized his condition was "medical" as distinct from "chiropractic" and let him know that fact, so that presumably he could seek medical attention for it.
For example, a Michigan appellate court once held that a chiropractor had no duty to detect a patient's specific cardiac problems because chiropractors cannot, by law, do the sorts of tests that might have revealed cardiac problems qua cardiac problems. (See Estate of Braford (2000) 243 Mich.App. 524, 537 [ 624 N.W.2d 245].)
(1) The imposition of a duty on chiropractors to at least recognize whether a condition is treatable through chiropractic, or is really a medical condition, is the clear rule throughout the United States. (See Proof of Malpractice by Chiropractor 55 Am.Jur. Proof of Facts 3d, § 15, p. 47: "It is generally held that a physician has the duty to advise a patient to consult a specialist or one qualified in a method of treatment which the physician is not qualified to give, where she knows, or ought to that she does not have the requisite skill, knowledge, or facilities to treat the patient's ailment properly, or that the method employed has been ineffective. The same principle has been applied in the few cases dealing with a chiropractor's failure to refer a patient to a medical doctor. Thus, it has been held that chiropractors owe a duty to exercise reasonable care in analysis and treatment of their patients which includes duty to inform them when nonmedical treatment has become useless or harmful and medical treatment should be sought. This standard of care requires a chiropractor to (1) recognize a medical problem as contrasted with a chiropractic problem; (2) refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient's condition is not amenable to chiropractic treatment . . . and (3) if the ailment presented is outside the scope of chiropractic care, inform the patient that the ailment is not treatable through chiropractic means." (Emphasis added.) See also Chiropractic Malpractice Litigation 78 Am.Jur. Trials § 116, p. 156: (2) "A chiropractor is under a legal duty to employ proper skill, care, learning and experience in correctly diagnosing the chiropractic patient's condition. Where the chiropractor fails to employ such due diagnostic care and the patient is proximately injured, the failure — which is generally referred to as misdiagnosis — may constitute a malpractice act, for which the chiropractor can be liable in damages. Misdiagnosis may occur where the chiropractor: Diagnoses a chiropractic condition when a medical condition actually exists. . . ." (Emphasis added.))
The only real wrinkle on the duty point is the issue of whether the duty stops with chiropractors simply telling their patients that (a) whatever it is that is ailing them is not amenable to chiropractic treatment, or (b) extends to further explicitly informing their patients that they should seek out medical care. This issue is academic for our purposes here: It is a reasonable inference that if one is suffering from the sorts of maladies that plaintiff Enslen here was suffering from — fever, vomiting, a right arm infection and extreme back pain for more than a week — one would be able to figure out on one's own, if told that one's condition was not amenable to chiropractic treatment, that one ought to seek out the services of medical doctor. Since neither Miles nor Kennedy went so far as to tell Enslen merely that his condition was not chiropractically treatable, we are spared the question of whether they had the further duty to spell out to Enslen the fact that he needed medical services. The precise issue we face is whether the trial court erred in a priori excluding the testimony of family practitioner Krause on the issue of whether the two chiropractors breached even that limited duty.
A few words on the standard of review are relevant here, particularly on the issue of whether we are really dealing with an "abuse of discretion" standard in this context. The decision on point on the standard of review for our purposes is Mann v. Cracchiolo (1985) 38 Cal.3d 18 [ 210 Cal.Rptr. 762, 694 P.2d 1134]. There, the surviving husband and three sons of a woman who died after treatment at UCLA Medical Center sued a variety of attendant health care providers for medical malpractice, and related claims (including conspiracy to conceal the existence of a broken neck). A number of the doctors brought motions for summary judgment. Those motions were supported by a number of declarations of expert witnesses and, as in the present case, the motions were granted. After summarizing the contents of the supporting expert declarations (see id. at pp. 32-34), the court turned to declaration of the plaintiff's expert which, again as in the present case, had been found insufficient by the trial court to qualify the expert to testify as to relevant standard of care. (See id. at p. 31 ["The trial court also rejected Dr. Fox' declaration on the grounds that it lacked the requisite foundational facts to qualify him to testify about the standard of care. . . ."].) So the question naturally arose in Mann, as it does in the case before us now: What was the appropriate standard of review by which to evaluate the trial court's decision, on a summary judgment motion, that the plaintiff's expert was not qualified? Here is what the Supreme Court said on that issue:
(3) "Defendants rely on authorities that hold that the qualification of an expert is ordinarily a matter addressed to the sound discretion of the court and its ruling will not be disturbed unless a clear abuse is shown. ( Chadock v. Cohn, supra, 96 Cal.App.3d 205, 208.) However, the court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury." ( Mann v. Cracchiolo, supra, 38 Cal.3d at p. 39, italics added.)
Readers will note that the italicized words enunciate an automatic or "per se" rule: The trial court "will be deemed to have abused its discretion" if the expert meets a certain threshold. It is, of course, an academic quibble as to whether such a rule should be best characterized as an "abuse of discretion" standard when it is really a "sufficiency of the evidence" standard, or something else. No matter the label, the Supreme Court was clear in Mann that if the expert "disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury" the trial court had no choice but to allow the testimony. Any other result would be "deemed" an abuse of discretion. It is thus safe to say that the Mann court was articulating a rule different from what most lawyers and judges would consider the standard "abuse of discretion" test, where the decision need only be within the "bounds of reason" to be upheld on review.
Of course, such a rule wholly accords with what one would expect in the context of a summary judgment motion. Trial courts do not have the "discretion" to pick and choose between qualified experts in a summary judgment motion, and as the Mann language shows, the analysis of an expert's qualifications for purposes of a summary judgment motion is essentially binary. Either the expert discloses sufficient knowledge to render the relevant opinion, or does not. There is no middle ground where the trial court's decision will be upheld merely if it is "reasonable," even if the reviewing court would have come to a different decision itself. Perhaps we should call this standard "abuse of discretion per se." But whatever one calls it, it is clear from Mann that the ruling before us must focus on the issue of whether Krause "disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury," not whether the trial court's decision to exclude his testimony from ever reaching a jury in the first place was merely a "reasonable" one.
B. California Precedent Clearly Shows that the Plaintiff's Expert Here Was Qualified 1. The Precedent
(4) Our state's jurisprudence of "cross-over" expert testimony has been one long march toward allowing experts in one profession to testify as to the malpractice of practitioners in a related profession or discipline when there is commonality or "overlap" between the two professions and the malpractice claim implicates that commonality or overlap.
The place to begin is Hutter v. Hommel (1931) 213 Cal. 677 [ 3 P.2d 554]. There, the expert was a homeopathic physician — one can still buy homeopathic remedies in health food stores — while the defendant practitioner was a traditional "allopathic" (to use a now archaic term) medical doctor. The traditional medical doctor defendant had botched an out-patient surgery involving removing a cyst just above the patient's eyebrows, and, as just noted, the plaintiff's expert was a homeopathic physician and surgeon. On appeal from a judgment in favor of the plaintiff, the traditional doctor argued that the homeopathic expert witness was not competent to testify as to malpractice committed by the traditional (allopathic) practitioner. Our Supreme Court made short shrift of the assertion, using the same language that it would later use in Mann: "The test is whether a witness discloses sufficient knowledge of the subject to entitle his opinion to go to jury." ( Id. at p. 681, italics added.) Because the homeopathic expert had "specialized in eye and ear work" for over twenty-five years and was "`familiar with the general treatment under allopathic and any other school of surgical cases,'" and had done similar operations himself, it was clearly within the trial court's discretion to allow him to testify. ( Ibid.)
Back in the 1930's — that is, before the widespread availability of antibiotics — traditional "allopathic" medicine vied with its chief rival, homeopathic medicine. Allopathic medicine is generally defined as direct and contrary intervention, while homeopathy is seen as indirect intervention (a bit like reverse psychology) where a little bit of some negative agent is given to a patient to induce a positive reaction.
Our Supreme Court might have stopped there, and confined Hutter to its facts, which, granted, are somewhat narrow. We recognize that the commonality between the learning of the expert homeopath and the defendant allopath in Hutter was quite high — both the expert and the defendant having done operations involving removing cysts around the eyes. But our high court did not stop there. It took the opportunity to indicate that it was favorably disposed to cross-over expert witnesses in language clearly intended to extend the scope of its holding beyond the facts at hand:
(5) "We might add that we are cited to no rule obtaining in this jurisdiction and know of none which would preclude a physician trained in one medical school from testifying in a proper case as to the treatment rendered by a physician or surgeon trained in a different school. Such a rule might be promulgated where charges of negligence in a malpractice case are directed to some special sort of treatment to be tested by the general doctrine of a particular school, but it is not applicable to a case of this character where the alleged malpractice is based upon general charges of negligence relating to matters of almost common observation within the experience of every physician and surgeon." ( Hutter v. Hommel, supra, 213 Cal. at pp. 681-682, emphasis added.)
As we just noted, the "commonality" and "overlap" factors were close in Hutter — allopath practitioner versus homeopath expert. But if there was any doubt about the propriety of a medical doctor rendering an expert opinion as to the malpractice of a chiropractor, it would soon be dispelled in two intermediate appellate decisions, Ellinwood v. McCoy, supra, 8 Cal.App.2d 590, and Abos v. Martyn, supra, 31 Cal.App.2d 705.
The specific facts in Ellinwood are rather distasteful — let us merely say that a chiropractor working in the office of a "drugless practitioner" applied the wrong treatment for a case of gonorrhea. The subsequent malpractice case yielded, for the time, a very large judgment for the plaintiff. The "drugless practitioner" appealed, and one of his arguments was that a "physician" was not competent to testify as to the malpractice of a drugless practitioner. (See Ellinwood v. McCoy, supra, 8 Cal.App.2d at p. 594.) The appellate court rejected the point simply by quoting the language from Hutter which we have already quoted, which the Ellinwood court thought was self-evident to dispose of the "doctors-not-competent" argument.
Next came Abos v. Martyn, supra, 31 Cal.App.2d 705. In Abos, a mother brought her young boy to a chiropractor after the boy was bumped at school and he felt weakness in his legs. The boy got progressively worse, and developed a fever, all the while the chiropractor insisted that his malady was merely the result of a misplaced third vertebra. The boy eventually became paralyzed and died, with the chiropractor still insisting that the malady was just the result of pressure on the spine. It turned out at the subsequent malpractice trial, however, that the boy died of "tuberculosis of the meninges of the brain." (See id. at p. 711.)
The trial involved a number of physicians, none of whom, judging from text of the opinion (see Abos v. Martyn, supra, 31 Cal.App.2d at pp. 710-713), were specifically familiar with chiropractic qua chiropractic, and certainly less familiar than Krause's declaration demonstrates here. Even so, the appellate court rejected as clearly "without merit" the chiropractor's argument on appeal that "the testimony of the physicians called by the respondent should have been excluded because they were of the allopathic and not the chiropractic school." ( Id. at p. 713.) The court, as Ellinwood had done, simply quoted the language from Hutter.
In Abos, the court structured its opinion by summarizing the testimony of each M.D. without going into their credentials in any detail. Thus: "Frank R. Webb, physician and surgeon, associated with the office of the county coroner" testified about what was found at the autopsy, including the lack of evidence of spinal injury, and gave his opinion that the boy was really suffering from a form of early meningitis. ( Abos v. Marlyn, supra, 31 Cal.App.3d at pp. 710-711.) Next came "Dr. Gustave F. Boehme, M.D., a diagnostician," an expert who testified on the basis of an x-ray that the boy was suffering from meningetic irritation and manipulation or adjustment of his spine would only make things worse. ( Id. at p. 712.) Granted, the next witness was a chiropractor, though he testified, among other things, that "`general diagnosis'" and the use of blood counts, urinalysis and sputum was indeed taught at the Los Angeles College of Chiropractice. (See ibid.) The next witness was "Dr. Vincent Askey, M.D.," who testified that in his opinion the patient had suffered from a secondary tuberculosis of the spinal column and that the child died from "`lack of proper medical attention.'" ( Id. at pp. 712-713.) After the summary of the testimony of doctors Webb, Boehme, and Askey, the Abos court turned its attention to "Appellant's claim that the testimony of the physicians called by respondent should have been excluded because they were of the allophatic [ sic] and not the chiropractic school." ( Id. at p. 713.) The claim was "without merit," for which the court immediately quoted the "We might add" passage from Hutter we have already quoted ourselves, and then declared, quite flatly, that medical doctors could testify about a chiropractor's breach of his or her duty of care: "The evidence of allopathic physicians being competent, the same provided testimony of sufficient substantiality, if believed by the jury, to warrant the latter in finding, as by their verdict they did, that the defendant [a chiropractor] did not exercise that degree of skill and care commonly exercised by persons practicing the medical profession in the same locality." ( Id. at p. 714, italics added.)
After Ellinwood and Abos came Wallace v. La Vine, supra, 36 Cal.App.2d 450. Wallace involved a wrist injury, with the defendant chiropractor applying a cast too tight and in applying "diathermy" so hard that he damaged tendons in the plaintiff's arm, wrist and hand. Medical doctors served as expert witnesses to the chiropractor's malpractice, and, given that Ellinwood and Abos had freshly settled the issue, the defendant in Wallace didn't even bother to argue that the doctors couldn't serve as expert witnesses against him. In fact, the defendant conceded "that their testimony was competent against the defendant chiropractor for the purposes for which it was produced" ( id. at p. 452), for which the opinion cited both Hutter and Ellinwood.
In between the Hutter-Ellinwood-Abos-Wallace line from the 1930's and 1940's, and the next major set of cases to deal with cross-over experts in overlapping but divergent disciplines ( Chadock v. Cohn, supra, 96 Cal.App.3d 205 and Ammon v. Superior Court, supra, 205 Cal.App.3d 783) from the 1970's and 1980's, came several Supreme Court decisions in garden-variety medical malpractice cases where the California Supreme Court took pains to show that there had been a great liberalization of the "rules relating to the testimonial qualifications of experts." (See cases cited in Brown v. Colm (1974) 11 Cal.3d 639, 645 [ 114 Cal.Rptr. 128, 522 P.2d 688] and Mann v. Cracchiolo, supra, 38 Cal.3d 18, 37.)
The Brown and Mann decisions afforded our high court the opportunity to catalog the numerous cases where cross-over experts had been allowed: autopsy surgeons had testified on urology; pathologists had testified as to aseptic necrosis; otolaryngolists had testified as to plastic surgery; pathologists had testified as to gynecology; and, as in Hutter, a homeopath had testified as to allopathic malpractice. As the court said in both Brown and Mann, "There are sound and persuasive reasons supporting this trend toward permitting admissibility more readily, rather than rigidly compelling rejection of expert testimony. It is obvious that an overly strict standard of qualification would make it difficult and in some instances virtually impossible to secure a qualified expert witness." ( Mann v. Cracchiolo, supra, 38 Cal.3d at p. 38, quoting Brown, supra, 11 Cal.3d at p. 646.)
Those cases set the stage for Chadock. Chadock is significant for showing the breadth of the liberalization of cross-over expert testimony because there, like Hutter some 40 years before, a lower-prestige expert (a podiatrist, not an M.D.) testified against a higher-prestige practitioner (an M.D.). The medical doctor in Chadock was alleged to have negligently cared for a leg and foot injury, but the plaintiff was subsequently non-suited on the theory — rather like that used by the trial court here — that a podiatrist was by definition incompetent to evaluate the work of a medical doctor.
The appellate court reversed. The podiatrist (as one would expect) had experience in the care of foot injuries (see Chadock v. Cohn, supra, 96 Cal.App.3d at p. 209) and that was enough. (See id. at pp. 209, 214.)
(6) With Chadock, the "licensure" barrier unequivocally had been crossed. As the Ammon court would note a decade later, it was by now well-established that "a holder of one license may be qualified to opine concerning the standard of care applicable to the holder of a different license." ( Ammon v. Superior Court, supra, 205 Cal.App.3d at p. 790, citing Chadock v. Cohn, supra, 96 Cal.App.3d at pp. 208-209.)
Now to Ammon. The Ammon opinion is a little sparse on the specific facts, though it is clear that it was a chiropractic malpractice case, and the nature of that malpractice included negligent diagnosis, care and treatment (see Ammon v. Superior Court, supra, 205 Cal.App.3d at p. 787). In any event the core issue involved the sufficiency of the certificate of merit needed to file a medical malpractice case (which included a chiropractic malpractice case). In Ammon, the certificate of merit was based on the attorney's consultation with a physician, not a chiropractor, the trial court overruled the chiropractor's demurrer based on that fact, and the appellate court thought the issue ultimately important enough to entertain in a writ proceeding, in which it ultimately agreed with the trial court that the consultation with a physician in a case of chiropractic malpractice was sufficient.
(7) While much of the opinion was statutory analysis, the rationale was rooted in the same concept of overlap on which the Ellinwood and Abos decisions had previously been based. First the court noted the "numerous areas of professional overlap" between physicians and chiropractors. The court said: "A certified chiropractor is authorized to use in a limited and circumscribed manner the concepts of anatomy, bacteriology, diagnosis, physiology, chemistry, hygiene, physiotherapy, and dietetics." ( Ammon v. Superior Court, supra, 205 Cal.App.3d at pp. 792-793.) Given that overlap — significantly including, for purposes of the case before us, both diagnosis and bacteriology — the Ammon court delivered the coup de grace to the chiropractor's challenge: "Hence, there is also a limited overlap between the practice authorized by a physician's and a surgeon's certificate and by a license to practice chiropractic. Not surprisingly, a holder of a physician's and surgeon's certificate, if possessing the necessary expertise in the particular subject at issue, may be permitted to testify in a case — such as the present one — involving the professional conduct of a chiropractor." ( Ammon v. Superior Court, supra, 205 Cal.App.3d at p. 793, citing Abos v. Martyn, supra, 31 Cal.App.2d at pp. 713-714 and Ellinwood v. McCoy, supra, 8 Cal.App.2d at p. 594.)
2. The Application
Ellinwood and Abos are thus both directly on point: In those cases it was enough that the experts who testified were physicians to merit allowing their testimony to go to the jury. In the present case, interestingly enough, it is clear from the substantive portions of Krause's declaration that he appears to be more familiar with chiropractic as a branch of the medical sciences than any of the doctors in Ellinwood or Abos, and so in that sense both cases control this case a fortiori. The little was okay in Ellinwood and Abos. The more — as reflected in Krause's declaration — is even better here. One could also say the same thing about Wallace, though that case is of significance only because it demonstrates the clarity of the rule in the wake of Ellinwood and Abos. Chadock, if anything, might apply a fortiori to the case before us if one were inclined to accept the proposition that physicians undergo more rigorous training than podiatrists, but even if one did not accept that idea, the case surely shows us that if an expert is familiar with the area of malpractice (in Chadock, foot injury treatment), that is enough, despite the gulf that might otherwise separate the respective disciplines. Podiatrists surely have expertise in foot care the way that family practitioners like Krause have expertise in diagnosis. Indeed, given the tendency in modern medicine for family practitioners to often act — for example, in your typical HMO — as "gatekeepers," controlling access to specialists based on tentative diagnoses of a condition, one can say that family practitioners are practically specialists in diagnosis. They, of all practitioners, must be alert to knowing the need to refer out to a specialist.
Finally, Ammon cannot be contained on the theory that it is a mere statutory construction case. It expressly relied on the idea of overlap — again it cited both Ellinwood and Abos in that context — and essentially found that there was overlap between traditional (allopathic) medicine and chiropractic in the area of diagnosis and bacteriology, sufficient to mean that any physician (i.e., by definition one trained in diagnosis and bacteriology) could opine on the alleged malpractice of any chiropractor, who, noted the court, are also by definition trained in diagnosis and bacteriology. In the present case, the key areas of overlap are also — and here Ammon is simply undistinguishable — bacteriology and diagnosis. C. Even Without California Precedent, Out-of-state Precedent Persuasively Shows that MD's Are Qualified to Testify About Chiropractic Malpractice In Rosenberg v. Cahill, supra, 492 A.2d 371, the Supreme Court of New Jersey authored an extremely thoughtful opinion directly dealing with the capacity of a physician to testify to chiropractic malpractice. Indeed, Rosenberg is perhaps the most thoughtful opinion in the area because it confronts and explores the substantive nature of the relationship between chiropractic and traditional medicine — at least as that relationship exists in the late 20th and early 21st centuries.
Indeed, if the Legislature has not seen fit to confine certificates of merit to experts "certified in the same discipline as defendant" (see Ammon v. Superior Court, supra, 205 Cal.App.3d at p. 794), it seems anomalous that the common law should do so in the context of expert testimony offered in opposition to a summary judgment motion, particularly given our Supreme Court's declarations in the opposite direction in Brown and Mann.
In Rosenberg, an infant was taken to a chiropractor, and the chiropractor's x-rays showed "observable soft tissue abnormalities" that turned out be tumors resulting from Hodgkin's disease. The father sued the chiropractor for failing to make an early diagnosis of the disease. ( Rosenberg v. Cahill, supra, 492 A.2d at p. 373.) The complaint against the chiropractor was that he had "failed to notice" these abnormalities otherwise disclosed by x-rays. ( Ibid.)
The plaintiffs' (father and infant son) expert was a medical doctor who, they contended, "was adequately qualified to render an opinion as an expert concerning the professional standard of care owed by a chiropractor in the reading of x-rays." ( Rosenberg v. Cahill, supra, 492 A.2d at p. 374.) In a situation rather parallel to the case at bar, the trial court in Rosenberg granted summary judgment on the theory that the medical doctor's proffered testimony was not "competent," making Rosenberg very close to the one before us, if not on all fours. And, as in the case before us, the New Jersey high court recognized that the case turned on "whether expert proof in the form of an opinion of a licensed medical doctor is competent to establish the chiropractic standard of care in connection with observable physical conditions the actual treatment of which does not fall within the scope of chiropractic." ( Id. at p. 375.)
As in the established law of California (see above), the court focused on the basic areas of overlap between medicine and chiropractic. (Unlike our dissenting colleague, the court was also not worried about whether the physician expert was specifically knowledgeable about chiropractic qua chiropractic.) The New Jersey state supreme court had previously held, in Klimko v. Rose (N.J. 1980) 84 N.J. 496 [ 422 A.2d 418], that in "appropriate circumstances" a medical doctor " could be qualified as to the standard of care owed by a chiropractor in areas that were common to both professions." ( Rosenberg v. Cahill, supra, 492 A.2d at p. 376, emphasis added.) The Rosenberg court further refined the issue as whether, in the case before it, "the subject of the professional expert opinion in this case implicated matters common to both the medical and chiropractic professions." ( Id. at p. 376, emphasis added.)
Then — and this is what makes Rosenberg stand out in the jurisprudence in the area — the court confronted the actual differences and similarities between the chiropractic and medical professions. (See generally Rosenberg v. Cahill, supra, 492 A.2d at pp. 376-378.)
The Rosenberg court noted the "history of the chiropractic profession's struggle to gain acceptability and official recognition." ( Rosenberg v. Cahill, supra, 492 A.2d at p. 376.) Chiropractors had fought hard to be "one type of medical practitioner" under the relevant New Jersey statutes. Thus the court recognized that in the required chiropractic education, many of the subjects "are similar to those covered in the examination for the license to practice medicine, although the latter anticipates a greater depth of knowledge." ( Id. at p. 377.)
In a table reproduced in the opinion, the percentage of time of various subjects in chiropractic school was given. The third highest time requirement for chiropractors (after "principles of chiropractic" and "pathology, bacteriology, and laboratory techniques" — which is noteworthy by itself) — is "diagnosis" at 7.5 percent. ( Rosenberg v. Cahill, supra, 492 A.2d at pp. 377.)
The bottom line of the Rosenberg court's comparison was that "in the universe of healing arts, chiropractic is a subset of medicine." ( Rosenberg v. Cahill, supra, 492 A.2d at p. 376, italics added.) Thus, in the case before it, since "[w]ith respect to the particular practices involved in this case, namely, the use of x-ray examinations and diagnosis, there is a commonality of education, training and licensure between chiropractic and medical professions" the medical doctor was competent to testify, contrary to what the trial court had held. ( Id. at p. 377, emphasis added.)
One comment from the Rosenberg court bears quotation here: "Chiropractic licensure also contemplates considerable education and knowledge on the part of the chiropractic practitioner with respect to the general field of diagnosis, presumably covering conditions that fall within the field of chiropractic as well as those more properly attributed to other licensed healing disciplines." ( Rosenberg v. Cahill, supra, 492 A.2d at pp. 377-378, italics added.)
Let's compare Rosenberg with the situation in California. Interestingly enough, Rosenberg noted that in New Jersey at least, chiropractors must devote at least 300 class hours to diagnosis and symptomatolgy. ( Rosenberg v. Cahill, supra, 492 A.2d at p. 378, fn. 3.) And that was in addition to even more time devoted to what one might think as the non-chiropractic subjects of bacteriology, pathology and laboratory techniques. If chiropractic were only about bone cracking, its practitioners presumably would never have to darken the door of the lab, or pay any attention at all to bacteria (like, as in the case before us, staph germs).
Now, here's the clincher when it comes to Rosenberg. When one compares the table in Rosenberg as to the respective components of chiropractic training in New Jersey with what the analogous California statute requires — well, guess what? California has more rigorous requirements in the areas of diagnosis, pathology and bacteriology than New Jersey! (Compare Rosenberg v. Cahill, supra, 492 A.2d at p. 377 with Bus. Prof. Code, §§ 1000-1005.)
In New Jersey, diagnosis was only 7.5 percent of total chiropractic training. In California, diagnosis (albeit along with dermatology, syphilogy and geriatrics, and radiological technology, safety and interpretation [x-ray reading]) is 18 percent of the curriculum. In New Jersey, pathology, bacteriology, and laboratory techniques, per the Rosenberg opinion, were 8 and 8.75 percent of the training. In California, pathology and bacteriology are 10 percent.
In short, Rosenberg represents a highly persuasive rule for California if California cases weren't already clear on the rule.
D. Krause's Declaration Shows He is Qualified to Offer an Opinion on the Alleged Chiropractic Malpractice in this Case
(8) To reiterate, the test of an expert's qualification from Mann is whether the expert has "disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury." Here, taking Krause's declaration as a whole, it is ineluctable that he exudes knowledge of "the subject," including the things chiropractors should know to at least tell if the condition they are treating is amenable to chiropractic. It is a glaringly reasonable inference from the declaration that Krause knows his spinal column, the effects of "subluxation" at various spots, the implications of subluxation and pain at points in the spinal column, and the sort of symptomology with which any competent chiropractor should be familiar. After all, there is a reason that California requires chiropractors to spend all that time studying diagnosis and bacteriology. The point of the lawsuit is, after all, that these chiropractic defendants should have known, for example, that subluxation at L4-5 accompanied by very intense pain not otherwise ascribable to trauma (and not responding to the specified medications) was not indicative of a condition treatable by chiropractic, and Krause's declaration self-evidently establishes his own knowledge of the subject, enabling him to say that.
IV. CONCLUSION
The judgments in favor of the defendant chiropractors are reversed. Because of the essentially interlocutory nature of the reversal of a summary judgment motion, instead of awarding appellate cost here, we shall direct that the trial judge shall have the discretion to award the costs from this appeal to the ultimate winner of the case.
Rylaarsdam, J., concurred.