On appeal from the Superior Court of New Jersey, Law Division, Ocean County, OCN-L-4012-01.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 7, 2007
Before Judges Winkelstein, Fuentes and Baxter.
Plaintiff Carol Bedford sued defendant chiropractors Anthony Riello and Peter Lowenstein for medical malpractice, claiming she suffered a torn meniscus following their adjustments of her left knee.*fn1 The jury returned a verdict for defendants.
Prior to the trial, in a motion in limine, plaintiff asked the court to rule, as a matter of law, that N.J.S.A. 45:9-14.5 and N.J.A.C. 13:44E-1.1, the statute and regulation, respectively, that govern the practice of chiropractors in New Jersey, do not permit chiropractors to adjust a patient's knee, only the patient's spinal column. The motion judge denied plaintiff's motion and concluded that the scope of chiropractic practice in New Jersey permits chiropractors to adjust a patient's knees and other extremities.
Plaintiff challenges that decision on appeal. She claims that the scope of chiropractic practice in New Jersey is limited to adjustments of articulations of the spinal column, and that adjustment of a person's knees is not authorized. Consequently, she asserts that the jury should have been so charged and her experts should have been permitted to so testify. We agree, and consequently reverse and remand for a new trial.*fn2
The trial evidence shows that between 1989 and 1999, Dr. Lowenstein treated plaintiff between 180 and 190 times, adjusting her back, neck and hips. She occasionally sought treatment from Dr. Riello, with whom Dr. Lowenstein shared office space. Prior to December 28, 1999, neither doctor had performed an adjustment of her knee; on that day, she treated with Dr. Riello because Dr. Lowenstein was on vacation.
During the visit, she related to Dr. Riello that she had been experiencing pain in her right hip and groin area, which was common for her, and she had begun to experience an ache in her left knee. She explained to the jury what happened after Dr. Riello began to examine her: "I was on my back, and before I knew it, my left leg was draped over his arm and he pushed down . . . just like a lever, and I heard a pop and [felt] burning immediately." When she told Dr. Riello that her knee hurt, he told her to put ice on it. As she got off the examining table, her knee throbbed, burned, and "hurt . . . very badly."
Plaintiff treated with Dr. Lowenstein when he returned from vacation. She explained to him how Dr. Riello had adjusted her knee, and he informed her that he would have done the "exact same thing." In fact, after Dr. Lowenstein adjusted her back and hips, he proceeded to place her knee over his arm, and pushed down. Plaintiff experienced pain and again heard a popping sound, similar to the sound she heard when Dr. Riello adjusted her knee, but not as loud.
In July 2001, plaintiff underwent arthroscopic surgery to repair a torn meniscus in her left knee. She had another surgery in October 2001, to remove a cyst from behind the knee. She testified that, at the time of trial, she continued to have pain and disability in her knee.
Plaintiff's expert, Dr. Robert McCutcheon, concluded that Dr. Riello deviated from the standard of care by failing to properly examine plaintiff and identify any subluxation of the knee that required an adjustment. He explained that a subluxation is an abnormality, a "fixation within the normal range of motion" for a joint. He testified that a fixation means that the "articulation," which he defined as the connection between two bones, "is not functioning properly. It is not dislocated. It's within the normal range but it's fixed." The standard of care dictated that a chiropractor first identify a subluxation prior to performing an adjustment, which Dr. McCutcheon claimed Dr. Riello failed to do. The doctor further testified that the procedure Dr. Riello used "was probably the most forceful manipulation of any joint in the body"; in a knee adjustment, a chiropractor "us[es] the mechanical leverage of the length of the leg. No other part in the body can do that." In Dr. McCutcheon's opinion, Dr. Lowenstein also deviated from the standard of care by not performing "an examination and [by] repeat[ing] in possibly a similar manner the initial insult to the knee."
On cross-examination, Dr. McCutcheon acknowledged that Dr. Riello's technique was in fact proper, assuming adjustment was required. Dr. McCutcheon had been barred by the motion judge's pretrial ruling from testifying that, regardless of how performed, adjustment of ...