Foster v. Thornton

160 So. 490, 119 Fla. 49, 1934 Fla. LEXIS 1955

• Court: Supreme Court of Florida
• Decided: December 6, 1934
• Status: Published

Opinions

In view of the nature of the evidence adduced and of the principles of law involved, a reargument of this case has been had on extraordinary petition for rehearing filed by the plaintiff in error who was the defendant in the trial court.

The action is by the husband to recover damages for the death of plaintiff's wife, alleged to have been caused by negligence or unskillfulness of the defendant when he was treating her professionally as a chiropractor.

In three counts the declaration severally alleges:

(1) "That the defendant treated the deceased in an unskillful, careless and negligent manner whereby the deceased was fatally injured and caused pain and anguish and suffering of body and mind, and from which injuries the deceased languished and died";

(2) "That the defendant 'so carelessly and negligently treated the deceased and handled her so violently that the defendant ruptured a blood vessel in or leading to and supplying blood to the brain of the deceased, causing a hemorrhage from which the deceased, after severe and excruciating suffering, pain and anguish, died';

(3) "That the treatment rendered by chiropractors consists in manipulating or adjusting the spinal column, so as to restore the vertebrae, which is considered to be out of alignment, to its proper place and to thus relieve the pressure on the nerves; that this is done by palpitating the spinus processes and forcing, pushing or manipulating the vertebrae into place; that the treatment consists entirely in manipulating the spinal column and attempting to adjust the vertebrae as above set forth; that the defendant undertook, for compensation, to treat and cure the deceased by manipulating her spinal column in the manner above set forth; that the defendant so carelessly and negligently rendered such treatment and negligently used so much force and violence in attempting to adjust the vertebrae of the deceased's spinal column that he ruptured a blood vessel at or near the base of deceased's brain, causing a hemorrhage in or around her brain and spinal cord, from which the deceased, after severe and excruciating pain and anguish, died."

Trial was had on a plea of not guilty. Judgment was rendered for the plaintiff, and the defendant took writ of error.

The first opinion held that the evidence is quite sufficient to warrant a finding that the death of the plaintiff's wife resulted from the chiropractic adjustments made by the defendant; but that the evidence was not legally sufficient to prove that the adjustment to which the injury causing the death may be attributed, was done in an unskillful, careless or negligent manner. In the opinion on rehearing it was in effect held that the testimony of physicians and surgeons that the rupture of a blood vessel in the brain of the patient was caused by violence and the defendant's testimony that the adjustment to which he submitted the patient, if properly made, could not have caused the rupture, were legally sufficient to sustain a verdict for plaintiff.

The record has been again considered to determine finally whether the evidence is legally sufficient to support the verdict for the plaintiff, which includes a finding that the defendant negligently or unskillfully made chiropractic adjustments of the vertebrae in the spinal column of the plaintiff's wife, with such force and violence as to rupture a blood vessel causing a hemorrhage in or around the brain, resulting in death as alleged in the declaration.

Prior to the chiropractic treatment the patient was rather a healthy person except for periodic migraine headaches and high blood pressure. She had theretofore been rejected for life insurance.

The death certificate stated as causes of the death: "acute hemorrhage pachymeningitis, thrombosis left lateral sinus, hemorrhage cervical spinal canal region, 1, 2, 3, cervical vertebrae."

Dr. Greene, a qualified physician, testified as an expert. His testimony included the following:

"Q. Could the rupture which you found in this brain have been caused by a sudden or forcible twisting of the neck, or by manipulation of or force to the vertebrae of the spinal column?

"A. Yes; twisting of the neck could cause it."

The chiropractors testified as experts that force used on the spinal column sufficient to rupture a vein in the brain would disarticulate the vertebrae and there was no such disarticulation, and that under the facts stated in the hypothetical questions the chiropractic adjustments made did not cause the traumatic rupture in the brain of the patient.

The physicians and pathologist testified as experts that force applied to the upper spinal column so as to cause a traumatic injury to the spinal cord might produce a rupture in a vein in the brain without sufficient force being used to disarticulate the vertebrae and that under the facts stated in the hypothetical questions the adjustments of the spinal column made did cause the rupture in a vein of the brain without causing a disarticulation to the vertebrae of the spinal column.

Such matters related not to proper chiropractic treatment but to an ulterior or untoward result of an unskillful or negligent application of force to the upper spinal column of the patient consequently the testimony of qualified physicians was as competent as that of qualified chiropractors.

There was a rupture in a vein of the brain which caused death. Force sufficient to cause the rupture is not proper treatment. Since it was a traumatic rupture causing injury to the brain, the jury was warranted in finding from all the testimony adduced that an unskillful application of force in an adjustment of the upper spinal column caused the rupture in a vein of the brain.

The plaintiff testified without objection that the patient regained consciousness Sunday morning and that "she said she was sitting on the table in Doctor Foster's office; and he just twisted her neck, and it felt like something broke, it just felt like something went up through the back of her head to the top and flew off; everything turned black, and she became sick and started to vomit, and fainted."

The patient's family physician, who was not present when the chiropractic adjustments were made, testified without objection that when the patient regained consciousness at her house on Sunday morning after the treatment on Friday,

"I asked her what had happened." "She replied, she had been having an adjustment, I think is the term, an adjustment. She expressed it this way: 'I was having an adjustment, and had a sudden sharp pain in the back of my neck, extreme pain.' And from then on, she didn't remember what was going on." "She stated she was at Doctor Foster's office." "That during the manipulation of her neck, the receiving of the adjustment, she received a sudden sharp pain in the back, at the base of the skull, would be the most accurate way of expressing it. She said, the back of her head and neck."

The defendant testified:

"I placed my hand upon the spinus transverse and lamina of the second cervical vertebra, and, with a slight movement of the wrist, I gave an adjustment on that vertebra to correct that abnormal position or malalignment.

"Q. Were those exactly the same adjustments you had previously given her on the other four days preceding that she had been to your office? A. Just exactly. Q. Any difference in them at all? A. None whatsoever.

"Q. I want you to state whether the chiropractic adjustments you gave to Mrs. Thornton, the wife, the deceased wife of the plaintiff in this case, on the fifth day she was at your office, as you have just stated and described to the jury, at the time and place stated, were properly and correctly made and given, and whether or not those adjustments were right and proper, and in accordance with the principles, rules and best method of the science of the chiropractic as practiced by legally qualified, confident and skillful chiropractors in this and similar localities under like or similar circumstances, having due regard for the advanced state of the science of chiropractic at the time stated. A. They were, yes.

"Q. You have heard the testimony with reference to Mrs. Thornton experiencing some pain, and groaning as though she were in pain. Just describe to the jury what transpired after the adjustment on the fifth day, which you say was the 22nd day of January.

"A. Yes, that is correct, on the 22nd day of January. After those adjustments, I left Mrs. Thornton lying on the table, stood by the table and chatted with her for several minutes, I don't know; eight or ten minutes, talking about her condition and things more or less in general. And about eight or ten minutes after the adjustment she grabbed her head and said she had a pain in the back of her head;

"Q. Did she indicate any pain or that she was suffering any pain during the time of the adjustments that you were making on this last day at your office, Doctor? A. None whatsoever, not until about ten minutes after the adjustment."

The autopsy showed evidence of hemorrhage in the upper portion of the spinal column, with a thrombosis of the lateral sinus. And there was also hemorrhage in the veins, or a blood clot in the veins of the coverings of the brain, with an oozing hemorrhage into those coverings.

The evidence shows death was caused by hemorrhage from a rupture or tear in the small veins of the brain, and that there was no disease of the brain. Medical doctors testified that the brain was not diseased and that the rupture of the veins was caused by some kind of injury or violence or trauma, and that the rupture could have been caused by force in adjustments of the spinal column, while the chiropractors testified that a hemorrhage of the brain could have been the result of disease or other causes besides the injury by violence or trauma; but no other causes were shown to have been probable.

Dr. Heitz for the defendant testified that "if there was an injury to the cord, there would be an extravasation in the cord, causing an occlusion of the nerve impulse going to and from the brain."

Dr. Dyrenforth for the plaintiff testified: "The spinal cord was in a healthy condition, although there was evidence of extravasated blood about the coverings."

A standard of chiropractic treatment was not an essential to be shown in determining the issues in the case, since the injury alleged is ulterior and not a part of the treatment authorized. The declaration alleged that the treatment the defendant was engaged to administer "consists entirely in manipulating the spinal column and attempting to adjust the vertebrae," and that the defendant "negligently used so much force and violence in attempting to adjust the vertebrae of the deceased's spinal column that he ruptured a blood vessel at or near the base of deceased's brain causing a hemorrhage in and around her brain and spinal cord, from which the deceased, after severe and excruciating pain and anguish, died." The injury alleged is not the result of administering a standardized chiropractic treatment; but an ulterior injury alleged to have been caused by negligence in using violence or force.

The defendant testified that the adjustment treatment he gave the patient was according to approved standards of chiropractic adjustments and that he exercised proper care. This was supported by other chiropractors who testified as experts. Defendant doubtless was unaware of any unskillful, negligent or undue force or untoward act or omission, though the evidence justified an inference of an untoward act of force in making the delicate adjustments.

An inference of undue force or unskillful manipulation by the defendant in making the adjustments may legally and fairly be drawn from the nature of the injury to the brain as testified to by the medical doctors, and such inference may sustain the verdict notwithstanding the testimony of the chiropractors as experts that the propriety and nature of the adjustments made as stated in hypothetical questions were proper according to approved standards of chiropractic treatment. This is so because the medical doctors are as competent to testify as to the effect of physical force or injury applied to the human organism as are chiropractors and the whole evidence was legally sufficient to justify an inference of undue force or unskillfulness in making the adjustments in the upper vertebrae at the time the patient suddenly complained of severe pain in the back of her head and neck from which she never recovered.

The experts differed as to the amount of force or violence used in making adjustments of the spinal vertebrae that would likely produce the traumatic injury to the brain as alleged; but the injury was shown by competent legal evidence, and the testimony warranted a finding that it was a traumatic injury to the brain that was not diseased, and that it was an ulterior injury caused by negligent or unskillful adjustments of the patient's spinal column.

If an injury to the patient is alleged to have been caused by the negligence, carelessness or unskillfulness of the professional man with reference to the professional treatment undertaken by him, a justiciable issue thereon should be determined upon due consideration of the expert testimony of those who qualify as being skilled in and conversant with the defendant's school of scientific professional treatment. But where it is alleged that in administering the treatment an ulterior or untoward injury was negligently, carelessly or unskillfully done by the defendant to a part of the patient's person not properly involved in the assumed treatment, and where as in this case it requires expert scientific anatomical or other knowledge and experience to discover such untoward injury and its cause, the justiciable issue as to whether the defendant caused the untoward injury by negligent, careless or unskillful conduct in administering the professional treatment undertaken by him, may be determined upon due consideration of the legal testimony of duly qualified experts in the premises, without special reference to any school of scientific learning and practice having reference to the human organism and its ailments and cures.

The legal sufficiency of oral evidence to sustain the verdict of a jury where the testimony is conflicting is not determined by the mere number of witnesses, but by the probative force that the jury could legally have given to the evidence that supports the verdict when all the evidence adduced is duly considered.

Where a verdict in a civil action is rendered on conflicting testimony under appropriate and fair charges, and judgment is rendered thereon, after the denial of a motion for new trial which contains a ground challenging the sufficiency of the evidence to sustain the verdict, and no material error of law or procedure affecting the verdict is made to appear, the appellate court will not reverse the judgment on the ground that the evidence is not sufficient to sustain the verdict when there is substantial unimpeached legal evidence which fairly tends to support the verdict and the verdict is not against the manifest weight of the evidence, and on the whole record it does not appear that the verdict is clearly wrong or that it was influenced by something outside of the evidence as adduced in the case. Wilson v. Maddox, 97 Fla. 489, 121 So.2d 805; Jennings v. Pope, 101 Fla. 1476, 136 So.2d 471; Clerk v. United Grocery Co., 69 Fla. 624, 68 So.2d 766; F. E .C. Ry. v. Hayes,66 Fla. 589, 84 So.2d 274; So.2d Express Co. v. Williamson, 66 Fla. 286, 63 So.2d 433; Jacksonville Electric Co. v. Cubbage, 58 Fla. 287, 51 So.2d 139; McSwain v. Howell, 29 Fla. 248, 10 So.2d 588; Mayo v. Hynote, 16 Fla. 673; Forcheiner Co. v. Mayo, 16 Fla. 676; DeFuniak Springs v. Purdue, 69 Fla. 326, 68 So.2d 235; Palatka Abstract Title Co. v. Haskell, 100 Fla. 1504,131 So. 394; S. A. L. Ry. v. Scarborough, 52 Fla. 425, 42 So.2d 706; Key v. Moore, 78 Fla. 205, 82 So.2d 810; 308 East 79th St. Corp. v. Favorite, 111 Fla. 234, 149 So.2d 625; Merchants Transportation Co. v. Daniel, 109 Fla. 496, 149 So.2d 401.

The testimony shows that the blood vessels of the patient's brain were not diseased, and that the rupture was caused by the use of force or violence. There was a traumatic hemorrhage. If high blood pressure or other ailment of the patient made the blood vessels subject to a traumatic rupture by slighter force or violence than they otherwise would have been, that would not relieve the defendant from liability for the injurious consequences of any negligent or unskillful use of force or violence in making the chiropractic adjustments. 48 C. J. 1122.

There are assignments of error on the giving and refusal of charges and exceptions to testimony predicated upon the theory that an allegation of malpractice by a chiropractor must be proven by the expert testimony of qualified chiropractors.

In this case the allegation is not that the defendant was negligent or unskillful in his treatment for the patient's ailment, but that in administering the treatment by chiropractic adjustments of the vertebrae of the patient's spinal column, the defendant negligently or unskillfully used such force or violence as to cause an ulterior traumatic rupture of a blood vessel in the patient's brain resulting in her death. The ulterior injury alleged being to the brain and not visible externally, it could not be shown by the testimony of non-experts; but such injury being to the human brain, it could be shown by expert testimony of physicians, pathologists or surgeons who qualify as having expert knowledge of such human organisms and injuries thereto. The injury alleged is not a part of or a consequence of authorized chiropractic treatment to be testified to only by chiropractors. It is an ulterior injury that may be shown by qualified experts having knowledge and experience as to such injuries. No harmful error in giving or refusing charges is made to appear.

The foregoing expression of opinion is concurred in by Mr. Chief Justice DAVIS, Mr. Justice WHITFIELD and Mr. Justice BROWN and represents the view entertained by them respecting the decision of this case, which view is to the effect that no legal error has been shown as cause for reversal of the judgment of the Circuit Court and therefore the judgment appealed from should stand affirmed.

Mr. Justice ELLIS, Mr. Justice TERRELL and Mr. Justice BUFORD are of the opinion that the judgment should be reversed for a new trial.

Under ordinary circumstances an equal division of the Supreme Court on the question whether or not a judgment appealed from should be affirmed, would impose upon those members of the Court voting for reversal the duty to affirm the judgment in order that an end might be put to the litigation where there is no prospect of any immediate change in the personnel of the appellate court. See State, ex rel. Hampton, v. McClung,47 Fla. 224, 37 Sou. Rep. 51. But in the present case, the judgment of the Circuit Court was, pursuant to an opinion adopted and filed by a majority of this Court on August 10, 1933, first reversed for a new trial, after which a petition for rehearing was filed and granted and a rehearing and reargument had before the whole court. On said second consideration of this case on rehearing, the conclusion was reached in an opinion adopted and filed in this cause of February 9, 1934, by a majority of the court, that the Supreme Court should recede from its former conclusion of reversal and should affirm the judgment, which was done.

The present consideration of this case by this Court for a third time is pursuant to a special order made by the Court granting plaintiff in error's special petition to recall the mandate on the judgment of affirmance and grant to plaintiff in error a rehearing on the Court's judgment of affirmance entered February 9, 1934, which had receded from the Court's judgment of reversal entered August 10, 1933. The rehearing as to the judgment of reversal of August 10, 1933, was granted on the application and petition of defendant in error, while the present consideration is predicated upon an extraordinary petition for a second rehearing that has been specially permitted to be filed on behalf of the plaintiff in error in view of the Court's having receded from its original judgment of reversal that was in plaintiff in error's favor.

In view of the peculiar situation created by the circumstance that the Supreme Court now stands equally divided as to the judgment to be rendered concerning plaintiff in error's petition for a rehearing as to the judgment of affirmance last entered by the Court which was itself a judgment receding from a prior judgment of reversal that this Court had entered on August 10, 1933, it seems to the Court that, notwithstanding the equal division of the Court on the merits of the appeal, and notwithstanding the individual opinions entertained by the several justices respecting the judgment that ought now to be rendered on this second application for a rehearing in this cause, that the ends of justice will be best subserved by granting the extraordinary petition for rehearing filed by plaintiff in error, reinstating the first judgment of this Court, which was a judgment of reversal of the judgment of the Circuit Court, and thereupon remanding the cause to the Circuit Court without direction other than to grant a new trial and have the issues resubmitted for reconsideration by another jury in due course of procedure at another trial to be had of this cause.

It is therefore considered and adjudged by this Court that the judgment of affirmance entered by this Court on February 9, 1934, be vacated and recalled, and that the judgment of reversal entered by this Court on August 10, 1933, be reinstated and made the judgment of this Court on the pending writ of error, and that thereupon this cause be remanded to the Circuit Court of Duval County without direction other than to grant the defendant's motion for a new trial and resubmit the issues in the cause for reconsideration and redetermination by another jury at a trial to be held pursuant to law and the course of legal procedure, each party to this writ of error to pay his own costs incident to the appeal. Let a mandate be issued accordingly.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.

SUPPLEMENTAL OPINION.