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Whittaker v. Houston11/22/2005
tion in referring to Dr. Gleman's expected testimony nor did she err when she denied Whittaker's motion for judgment as a matter of law.
C.
Finally, Whittaker argues that the Superior Court impermissibly characterized the chiropractor's testimony as equivalent to competent medical testimony when it instructed the jury that "for the purposes of this case, the term, 'chiropractic probability' or 'reasonable chiropractic probability' is the equivalent of reasonable medical probability." Whittaker did not object to this jury instruction at trial. When counsel does not object to a jury instruction at trial, the appropriate standard of review is plain error. The error must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character; and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.
A defendant enjoys the "unqualified right" to a correct statement of the law, but we reverse only where "an inaccuracy in the instructions may lead to confusion that undermines either the jury's ability to reach a verdict or our confidence in their ability to do so fairly under the circumstances."
In this case, equating "reasonable chiropractic probability" and "reasonable medical probability" did not rise to plain error because it was not error, plain or otherwise, for the Superior Court to clarify for the jury that the testimony of both experts had to be based upon probabilities and not possibilities. The purpose of the jury instruction, which was amended by the trial judge's statement, is to ensure that a verdict is not based upon a speculative opinion of a medical expert regardless of his specialty or expertise. Furthermore, the "practice of chiropractic" clearly pertains to the science or art of preserving health. The trial judge did not err when she included the testimony of the chiropractor within the broad category of a medical expert.
III. Conclusion
A chiropractor may testify in a personal injury action as an expert or medical witness on matters within the scope of the profession and "practice of chiropractic." In this case, the Superior Court did not abuse its discretion when it allowed the chiropractor to testify as an expert witness, but it also should have allowed testimony from the chiropractor within the scope of that profession on the matter of causation. The preclusion of that testimony was harmless error. Because we find no reversible error, the judgment of the Superior Court is affirmed.
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