Cayton v. English

• Decision Date: 05 December 1927
• Docket Number: No. 4556.,4556.
• Citation: 23 F.2d 745,57 App. DC 324
• Parties: CAYTON v. ENGLISH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 324, 23 F.2d 745 (1927)

CAYTON v. ENGLISH.

No. 4556.

Court of Appeals of District of Columbia.

Submitted November 9, 1927.

Decided December 5, 1927.

Alex Wolf, Nathan Cayton, and T. M. Wampler, all of Washington, D. C., for appellant.

P. B. Morehouse and R. L. Williams, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a judgment after verdict, in the Supreme Court of the District of Columbia, for the defendant, appellee here, in an action for malpractice.

In her declaration plaintiff alleged that the defendant, on January 20, 1923, represented and held himself out to the public "to be a practitioner especially skilled in the practice of osteopathy"; that, relying upon the representation "that the defendant was skilled as a practitioner of osteopathy," plaintiff employed the defendant to treat her for relief from headache and high blood pressure, and he so treated her; but that, notwithstanding his duty in the premises, he "conducted himself in an unskillful, careless, and negligent manner, in manipulating and adjusting the body and limbs of plaintiff, and so unskillfully, negligently, and carelessly treated the plaintiff, and the limbs and legs of plaintiff, as to cause a large mass to bulge forward about one inch below the greater trochanter of the plaintiff's left leg, which became and was exceedingly sore, tender, and inflammatory, and by his said negligent treatment caused a diagonal rupture of the fascia lata, through which muscle fibers protruded and bulged," in consequence of which plaintiff suffered great pain and was compelled to undergo a surgical operation for relief. These allegations were followed by proper averments as to damage.

Plaintiff testified that a Maj. Poston, who it appears was a "naturopath by occupation," and whom she had consulted, recommended the defendant, Dr. English, and through him an appointment was made with the doctor for January 20, 1923, on which occasion she received the treatment of which she complains; that in the course of the treatment the defendant so forcibly manipulated her left leg as to cause her great pain and to make her ill. She went home and Dr. Owens was called. When Dr. Owens asked "what the matter was," she told him she had received a treatment that morning at the office of Dr. English, "and was taken very sick while he was giving her the treatment"; that Dr. Owens looked at her leg "and discovered the lump, which was as large as a goose egg." On cross-examination, she denied that when she saw Maj. Poston she had any difficulty with her left leg, stating that she called on him for treatment of high blood pressure only; "that she never told anybody that she had pains anywhere else;" that before Dr. Owens was called an attempt was made to get Dr. English.

Dr. Owens, a regular practicing physician, testified that "he treated Mrs. Cayton plaintiff for a condition that he thought was sciatica, a pain in the left leg around the region of the sciatic nerve; that the sciatic nerve starts here (indicating) and runs down in that direction (indicating); that she said she was suffering pain; that he could not recall seeing any protrusion or swelling there." When asked whether a rupture of the fascia lata could come from a severe manipulation of the leg, he replied that he was not qualified to answer.

Dr. Harry S. Lewis, a practicing physician and surgeon (not an osteopath), who saw plaintiff in June of 1924, was of the opinion that forcible manipulation, if sufficiently violent, might result in a rupture of the fascia lata. The witness further testified that a treatment producing such a result would be improper.

Dr. Harry W. Miller, a surgeon and chief of staff of the Washington Sanitarium and Hospital, who examined plaintiff in February of 1923, when she was admitted to the hospital, was asked whether he had formed any opinion as to how the injury could have occurred, and replied: "No, not particularly; that he formed this opinion that it must have been due to some injury, the result of an injury of some kind by which she had wrenched or twisted her thigh and had ruptured and broken the fibers by some means"; that plaintiff was at the sanitarium about two years before for shortness of breath and high blood pressure. When asked, if, after such a treatment as the evidence had thus far shown to have been given plaintiff, a hernia was found on the fascia lata, "he would say the administering doctor had given the case the care and attention that a physician of ordinary skill and ability practicing in the District of Columbia would have given under all the circumstances, he replied that he did not know how a physician could decide the matter of how an injury occurred. * * * In the first place, injuries of this kind are exceeding rare and we have very little medical data as to just what causes breakage of the fascia lata. I am therefore unable to state even a series of causes that are known to have produced an injury of this kind." He then was asked by the court whether this ought to be a proper manipulation of the limb, and replied: "I know nothing about the manipulation." On cross-examination, the witness testified that he had never before seen a case of the rupture of the fascia lata. Asked as to the degree of force necessary to rupture that portion of the fascia lata here ruptured, he answered: "Well, I cannot tell you in pounds pressure, but only this, that it is a rare condition, evidently, and it would have taken a very marked force, I should think, to produce a tear of that kind." Later he was asked, "You would have to use practically all of your strength to do it?" and replied, "Yes, sir; I should think so; it is a very tough membrane."

Dr. Daniel H. Kress, a regular practicing physician connected with the Washington Sanitarium and Hospital, who examined the plaintiff in February of 1923, was unable to "tell whether the condition found in her was the result of any treatment she had."

Dr. Joseph A. Jeffries, another general practitioner of the District of Columbia, who saw plaintiff about the time of her injury and recommended that she see a surgeon, testified that he was not familiar with osteopathic treatment; "that manipulation is not indicated in allopathic treatment; * * * that he knows nothing about osteopathic treatment."

Dr. Norman C. Glover, the only osteopathic physician called by the plaintiff, testified that "he could not see how an injury could ever follow an adduction or treatment; * * * that he would think it would be impossible for an injury to result to the muscles, the fibers, of the body in any part, the joints, or particularly the fascia lata, following a treatment of a patient in the regular course of osteopathic treatment as practiced by him, and generally recognized by the school of osteopathy; * * * that you cannot injure the fascia lata, no matter how much you stretch the leg, without a complete dislocation of the head of the femur."

Dr. Gerffrey Williams, a surgeon attached to the Washington Sanitarium and Hospital, and who examined plaintiff subsequent to her injury, "had never seen a rupture of the fascia lata similar to this one."

Members of plaintiff's family testified as to her condition prior to and subsequent to her treatment by Dr. English, but it is unnecessary to review their...