Chiropractic Expert Witness is Not Qualified to Speak to the Correctness of an EMC Diagnosis

This matter involves the Plaintiff insurers’ claim that Defendants unlawfully billed for medically unnecessary and illusory services, misrepresented the nature and extent of the services, and operated in violation of various laws specific to the healthcare and/or insurance sector.

According to the Plaintiff, Titan Defendants agreed to refer patients to the Stein Defendants in exchange for the Stein Defendants providing the patient with a false EMC diagnosis, which enabled the Titan Defendants to provide medically unnecessary chiropractic, physical therapy, and other services to the patient and to receive reimbursement for these services in excess of the ordinary $2,500 limit.

Plaintiffs produced an expert report from Dr. John Merritt, who found that the Titan Defendants treated patients suffering from minor injuries but routinely referred them to the Stein Defendants for medically unnecessary EMC evaluations, and the Stein Defendants would consistently diagnose the patients with an EMC that did not appear to be warranted. The Titan Defendants, in turn, produced an expert report from Dr. Todd Cielo in which he rebutted Merritt’s opinion that the patients referred from Titan Wellness to Stein, D.O., P.A. (“Stein, P.A.”) did not have an EMC, stating that he had a “serious problem” with this accusation, and challenged Merritt’s opinion that the Stein Defendants’ EMC diagnoses were not warranted. 

Plaintiffs filed a motion to exclude Cielo’s opinions (i) purporting to rebut Merritt’s opinion with respect to whether the patients referred by the Titan Defendants to the Stein Defendants actually suffered from an EMC and, by extension, (ii) purporting to rebut Merritt’s opinion regarding the “medical necessity” of EMC referrals from Titan Wellness to Stein, P.A. Plaintiffs challenge the admissibility of these opinions on two bases.

Chiropractic Expert Witness

Todd Cielo is the President and Owner of Cielo Sports and Family Chiropractic Centre. As a practicing chiropractor for the past 20 years, he is a lecturer for continuing education organizations in Florida and is an accredited lecturer for the Florida Bar Association. Cielo earned his bachelor’s degree from the University of Florida and his doctor of chiropractic medicine degree from Life University.

Want to know more about the challenges Todd Cielo has faced? Get the full details with our Challenge Study report. 

Discussion by the Court

First, Plaintiffs argued that Cielo is not qualified to proffer an opinion regarding whether an EMC diagnosis is appropriate because Florida’s No-Fault Law does not permit chiropractors to render EMC diagnoses. Second, because Cielo himself testified that he was not qualified to comment on EMC diagnoses, Plaintiffs claimed that not only is Cielo unqualified to proffer the opinions at issue but the opinions at issue are also unhelpful and unreliable as a result.

Florida No-Fault Law

With respect to Plaintiffs’ first argument, the parties do not dispute that under Florida’s No-Fault Law, chiropractors are not among those medical professionals who may determine that a patient suffered from an EMC such that the insurance reimbursement limit for healthcare services rises to the higher $10,000 maximum amount. They also do not dispute that Cielo is a chiropractor. The parties’ dispute centers around the relevance of Florida’s No-Fault Law to the Daubert analysis.

The Court held that Cielo’s status as a chiropractor does not bar him from providing an expert opinion regarding whether a patient suffers from a medical condition involving severe acute symptoms that warrant immediate medical attention, including potentially referral to another healthcare provider. Chiropractic physicians, of which Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Therefore, the Court permitted Cielo to proffer opinions consistent with this expertise. Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the No-Fault Law.

The pages Plaintiffs reference from Cielo’s report include statements that appear to fall on either side of this line, and the Court declines to parse the report sentence by sentence at this stage. The Court will exclude from consideration at the summary judgment stage any improper opinions proffered by Cielo and will provide the jury with a limiting instruction at the trial stage to effectuate this decision.

Cielo’s Testimony

Plaintiffs’ second argument challenged the qualifications of Cielo as well as the reliability and helpfulness of his expert opinions based on Cielo testifying at various points during his deposition that he was not qualified to comment on issues pertaining to EMC diagnoses. In the examples provided by Plaintiffs, Cielo claimed that he was unqualified to comment on which factors he would take into account in determining whether a patient suffered from an EMC and that he was unable to speak on behalf of Stein or an EMC doctor because he is “not qualified for an EMC.”

In light of the limitation described in the prior subsection, the Court found that Plaintiffs’ argument regarding Cielo’s deposition testimony is moot.

Held

The Court granted in part and denied in part the Plaintiffs’ motion to exclude opinions of Titan Wellness Defendants’ expert Todd Cielo.

Key Takeaway:

Chiropractic physicians, of which Todd Cielo is one, are qualified to “examine, analyze, and diagnose the human living body and its diseases.” Cielo, however, is not qualified to speak to the correctness of an EMC diagnosis or, by extension, the medical necessity of a referral based strictly upon there being a subsequent EMC diagnosis because he is not qualified to render an EMC diagnosis under the Florida No-Fault Law.

Please refer to the blog previously published about this case:

Pain Management Expert Witness’ Testimony About Billing for Medical Examinations Admitted

Case Details:

Case Caption:	Government Employees Insurance Co. Et Al V. Titan Wellness Center Of Fort Myers, L.L.C. Et Al
Docket Number:	0:22cv61648
Court:	United States District Court for the Southern District of Florida
Order Date:	August 7, 2024