Duprey v. Shane

• Decision Date: 04 March 1952
• Citation: 241 P.2d 78
• Court: California Court of Appeals Court of Appeals
• Parties: DUPREY v. SHANE et al. * Civ. 14761.

Page 78

241 P.2d 78

DUPREY v. SHANE et al. ^*

Civ. 14761.

District Court of Appeal, First District, Division 1, California.

March 4, 1952.

Hearing Granted May 1, 1952.

Newell J. Hooey, San Francisco, Robert L. Lamb, San Francisco, for appellant.

Paul I. Myers, San Francisco, for respondent.

Partridge & O'Connell, San Francisco, for amicus curiae.

PETERS, Presiding Justice.

A rehearing was granted in this case to reconsider that portion of the opinion holding that the judgment was excessive in the amount of $2,351.81. As to all other points discussed in our former opinion, 238 P.2d 1071, we are satisfied with the disposition there made. We therefore adopt our prior opinion, with certain deletions and additions all relating to the subject of excessive damages, as follows:

The cast of characters involved in this legal drama are:

Iva Mae Duprey, the plaintiff and respondent, employed as a practical nurse by the Shane Diagnostic Foundation;

The Shane Diagnostic Foundation, a partnership engaged in the practice of chiropractic, a defendant and appellant;

Dr. Raymond Shane and his wife Helen, defendants and appellants, who are partners doing business under the name of the Shane Diagnostic Foundation;

Dr. John J. Harrison, a defendant and appellant, who is a chiropractor employed by the Shane Diagnostic Foundation during the period here involved. This is a malpractice action brought by Duprey against the Shane Diagnostic Foundation, the two Shanes, and Dr. Harrison. The basic theory of the suit is that on December 8, 1947, the respondent received injuries to her neck and body while working at her employment; that thereafter she was treated by her fellow employee Dr. Harrison, and by her employer, Dr. Shane; that such treatments were negligently administered, resulting in a new and further disability, for which damages are sought. The basic defense on this appeal is that the superior court had no jurisdiction of the appellants, or of the subject matter of the action, because, so it is claimed, the injury arose in the course and scope of the employment, and the Industrial Accident Commission has exclusive jurisdiction. Admittedly, the commission has made an award to respondent, and it is claimed that this award is res judicata of all of the issues in this action. The trial court overruled demurrers, objections to the introduction of evidence, motions for nonsuit and for a directed verdict and other motions, all raising this basic question of jurisdiction. The jury brought in a verdict for $19,572.40 against the appellants above named, judgment was entered on this verdict, and a motion for a new trial denied.

On this appeal appellants make three basic contentions:

(1) That the Industrial Accident Commission has exclusive jurisdiction over all of the injuries sustained by respondent, and its decision is res judicata of all of the issues involved herein;

(2) That, as a matter of law, the evidence is insufficient to sustain the judgment against Dr. Harrison. The other defendants do not urge the insufficiency of the evidence to show negligence;

(3) That the judgment is demonstrably excessive in the amount of $2,351.81.

The Facts Most Favorable to Respondent.

It was stipulated that Helen and Dr. Shane were partners doing business as The Shane Diagnostic Foundation; that Dr. Harrison was employed as a chiropractor by this partnership and was such during the week of December 8 to 15, 1947; that respondent was an employee of the partnership on December 8, 1947, and that she was paid her wages for the week of December 8th to the 15th, and tried to work during that period.

On December 8, 1947, it is admitted that respondent was injured in an accident arising out of her employment. On that day, as a practical nurse and in the course and scope of her duties, she was giving therapy to a patient. The patient, in moving around in the course of the treatment, started to roll off the treatment table. Respondent, who was standing on the opposite side of the table from which the patient was falling, grabbed the patient in order to break the fall. The patient grabbed respondent by her hands and the lower part of her arms, and thus the patient was eased to the floor. The respondent was pulled across the table with a 'terrific yank' to her shoulder. No injury to her neck was then received, according to respondent.

A short time after this incident respondent began to suffer pain in her right arm and shoulder, and her head began to ache. She spoke to Dr. Harrison about her pains, and, according to her testimony, he told her that headaches were his specialty and to come into his office and he would fix it up. This all occurred on the afternoon of December 8th. Dr. Harrison gave her what is referred to as a 'Palmer adjustment,' that is, the application of pressure to the neck while the patient is reclining. Respondent testified that this treatment was suggested by Dr. Harrison and consented to by her, and that Dr. Harrison gave her this same treatment several times that afternoon, after asking respondent if she were better, and receiving a negative reply.

Dr. Harrison's testimony is not very satisfactory. He stated that he gave respondent a treatment during the morning of December 8th, but he also testified that he 'palpated' her back, spine and neck after the accident, on 'some' afternoon, and made an examination. On this examination, he stated, he discovered an area of tenderness, normal spastic tissue found in cases of pain, and a soreness and stiffness of the cervical area. He testified that he did not then manipulate or adjust respondent's spine or neck, although he also testified that he 'manipulated her or adjusted her.' At any rate, it is admitted that Dr. Harrison did not then or thereafter have any X-rays made, nor did he make a fluoroscopic examination.

Respondent testified that on December 9th, 10th, 11th and 12th Dr. Harrison gave her several chiropractic adjustments and manipulations each day, similar to the treatments of December 8th, that considerable pressure was applied each time, and that such treatments were very painful. Dr. Harrison could not remember giving respondent any treatments on these days. Respondent also testified that the pain increased with each adjustment, that a completely new pain developed in her neck, that she suffered terrible headaches, and that her head began to fall to one side. Other doctors in the office looked at her through a fluoroscope on December 12th, but no X-rays were taken.

Respondent testified that she was treated during part of this period by Dr. Shane. She testified that on December 10th, Dr. Shane gave her a 'quick cervical'--a twisting and jerking of the head in the effort to try and snap in anything out of place. Similar treatment was given to her by Dr. Shane on December 11th. No X-rays were taken by Dr. Shane.

Dr. Shane denied that he gave respondent any chiropractic treatments on the days here involved, but testified that he examined her cervical spine on December 12th, but did not then examine the back of her head or her right shoulder. It was his testimony that respondent's head was rigid but erect, and that he could not then make a good examination because of the pain. Dr. Harrison, too, claimed that the reason he had not treated respondent was because of the pain spasm then present. This, he contended, prevented him from ascertaining the nature of the difficulty, although at another place he testified that his examination revealed a 'subluxation of the fourth cervical vertebra,' which means that that vertebra was out of place. Dr. Harrison testified that such condition requires an adjustment, but that such cannot be done when there is spastic tissue present. Heat and other forms of therapy will relieve the spastic condition. X-rays were not taken by him because he did not believe that the condition he found required them, and he had no cause to suspect a fracture.

Dr. Shane, who was not particularly active in treating patients, testified that a vertebral fracture could be identified by palpation--finger pressure--but that to ascertain the type and degree, X-rays would be necessary. He thought that it would be bad practice for a chiropractor to treat a fracture.

By December 12th, according to respondent, she could not hold up her head, the entire right side of her body was very painful, and she could hardly use her right arm or walk. On December 13th--a Saturday--she told several of the doctors at her place of employment that she could not stand the pain any longer and believed that X-rays should be taken, and she had X-rays taken that day. Her condition became worse over the week end, and on Monday, December 15th, she consulted a regular physician and surgeon, Dr. Karfiol. This doctor took more X-rays which showed a partial dislocation of the fourth cervical vertebra. He hospitalized respondent on December 18th and kept her in traction for about two weeks, which made the dislocation no longer visible.

This physician testified that he applied traction rather than manipulation because he does not manipulate spines if there is an anatomical injury, that is, a disorder discoverable by X-rays or touch, because manipulation in such cases could be dangerous and cause nerve injuries. Dr. Karfiol's diagnosis of a subluxation was confirmed by Dr. Williams, an X-ray specialist, called in by Dr. Karfiol. A Dr. Brown, physician, examined the X-rays taken up to this point and could find no evidence of a dislocation.

In February of 1948 respondent consulted Dr. Anderson. He hospitalized respondent for about six or seven weeks, applied a Thomas collar to her neck, later a steel brace, and gave her therapy treatments until early 1949. Dr. Anderson testified as to the subluxation of the vertebra. When asked if had formed an opinion as to the probable cause of her condition, he replied that he had reported to an insurance company that it was his opinion that 'as a...