By Jeffrey Randolph, Esq., ANJC General Counsel

This Article is Volume 2 in a multi-part series discussing chiropractic malpractice cases in New Jersey.

Volume 1 provided a general overview, while this article will discuss the first element of a chiropractic malpractice/negligence case: whether the chiropractor breached his/her duty to the patient by deviating from the normal standard of chiropractic care at that time.

The best place to start with this analysis is the standard Model Civil Jury Charges on Standard of Care. This is the law that is actually read to a jury in New Jersey after the parties have completed closing arguments and the jury is getting ready to deliberate. The Model Charges are the law that the jury must apply to the facts and testimony they heard over the entire trial.

As stated previously, chiropractors are considered “specialists” in New Jersey and, thus, a heightened jury charge for standard of care is read to the jury. The following is a synopsis of the actual charge that the jury is read by the trial judge and provides a good guideline as to the standard you must meet in your treatment of patients:

“Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm. Negligence may result from the performance of an act or the failure to act.

The determination of whether a defendant was negligent requires a comparison of the defendant’s conduct against a standard of care. If the defendant’s conduct is found to have fallen below an accepted standard of care, then he or she was negligent.

The defendant in this case is a medical specialist in the field of chiropractic medicine. Specialists in a field of medicine represent that they will have and employ not merely the knowledge and skill of a general practitioner, but that they have and will employ the knowledge and skill normally possessed and used by the average specialist in the field.

Thus, when a physician holds himself/herself out as a specialist and undertakes to diagnose and treat the medical needs of a patient, the law imposes a duty upon that physician to have and to use that degree of knowledge and skill which is normally possessed and used by the average specialist in that field, having regard to the state of scientific knowledge at the time that he/she attended the plaintiff.”

(Model Civil Jury Charges 5.50A) (emphasis added).

As you can see, a heightened standard of care is applied to a chiropractor as a specialist — they are not held to the standard of a mere general practitioner but, rather, to meet the minimum standard of an average specialist in the field. This raises the bar on the standard you must meet while treating patients.

So how is this standard of care measured? The standard must be testified to by a Doctor of Chiropractic (not an MD/DO/PT — it must be a chiropractor) who has practiced in the field for at least five years. They do not have to be licensed in New Jersey, provided they are a licensed DC in any state with at least five years’ experience. Thus, the plaintiff must provide testimony at trial from a DC who meets these criteria, and that expert must clearly state what the standard of care was at the time of the incident and that the defendant chiropractor, “to a reasonable degree of chiropractic certainty,” deviated from the standard of care.

If the plaintiff produces this testimony at trial, the issue of breach of duty/standard of care will go to the jury for deliberation.

This is a general overview of breach of duty/standard of care. The next volume will address the issue of proximate causation, the next element in a chiropractic malpractice case that the plaintiff must establish by a preponderance of the evidence.

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The author of Legal Ease and Legal Q&A (Jeffrey Randolph, Esq.) is an independent person of the ANJC, and his views are not authorized, sponsored, or otherwise approved by the A.N.J.C. The information provided is for general guidance on matters of interest only and may not take into account particular facts relevant to your individual situation.

The application and impact of laws and health care can vary widely based on the specific facts involved. Given the changing nature of laws, rules, and regulations, there may be omissions or inaccuracies in information contained in these materials.

Accordingly, the information you receive is provided with the understanding that the author and the A.N.J.C. are not herein engaged in rendering legal, accounting, tax, health care, or other professional advice and services, nor are they providing specific advice with regard to your practice, the treatment of any specific illness, disease, deformity, or condition, or any other matter that affects trade, commerce, or legal rights of others.

As such, this article should not be used as a substitute for consultation with professional accounting, tax, legal, health care, or other competent advisers. Before making any decision or taking any action, you should consult an appropriately trained professional.