Enslen v. Kennedy

• Decision Date: 30 March 2005
• Docket Number: No. G033186.,G033186.
• Citation: 26 Cal.Rptr.3d 274,127 Cal.App.4th 1448
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin M. ENSLEN, Plaintiff and Appellant, v. Robert KENNEDY et al., Defendants and Respondents.

26 Cal.Rptr.3d 274

127 Cal.App.4th 1448

Kevin M. ENSLEN, Plaintiff and Appellant, v. Robert KENNEDY et al., Defendants and Respondents.

No. G033186.

Court of Appeal, Fourth District, Division 3.

March 30, 2005.

Review Denied June 29, 2005.^*

Rinos & Martin, Dimitrios C. Rinos, Santa Ana, and M. Christopher Hall for Plaintiff and Appellant.

Law Offices of La Follette, Johnson, De Haas, Fesler, Silberberg & Ames and Brian Meadows, Santa Ana, for Defendant and Respondent Charles Miles, D.C.

Carroll, Kelly, Trotter, Franzen & McKenna, David P. Pruett, Lori A. Conway, John C. Kelly, Long Beach, and Michael A. Killackey for Defendant and Respondent Robert Kennedy aka Mark Kennedy.

OPINION

SILLS, P.J.

I. INTRODUCTION

The precise issue in this appeal is whether a family practice physician is ipso facto unqualified to render an expert opinion to the effect that a chiropractor should have known the condition the chiropractor was treating was not amenable to chiropractic treatment. This is not really a "standard of care" case in the strictest sense. The question is not whether the proper chiropractic treatment was rendered, but rather whether it was negligent on the part of the chiropractor not to realize and inform the patient that the patient's condition was beyond the competence of the chiropractor in the first place.

It is, however, a case where the precedent is clear. Ellinwood v. McCoy (1935) 8 Cal.App.2d 590, 47 P.2d 796 and Abos v. Martyn (1939) 31 Cal.App.2d 705, 88 P.2d 797 are directly on point. Ammon v. Superior Court (1988) 205 Cal.App.3d 783, 252 Cal.Rptr. 748, Chadock v. Cohn (1979) 96 Cal.App.3d 205, 157 Cal.Rptr. 640, Hutter v. Hommel (1931) 213 Cal. 677, 3 P.2d 554, and Wallace v. La Vine (1940) 36 Cal.App.2d 450, 97 P.2d 879 are substantively on point. All of these cases stand for the rule that an M.D. can testify to the failure of a chiropractor to inform a patient that a condition is beyond the competence of chiropractic.¹ Further, even if there were no California precedent on point, a decision from the New Jersey Supreme Court, Rosenberg v. Cahill (1985) 99 N.J. 318, 492 A.2d 371, provides highly persuasive reasons why medical doctors are competent to testify as to the failure of chiropractor to recognize when a condition is beyond their competence. We therefore reverse the judgments rendered in favor of the two defendant chiropractors in this case.

II. FACTS

On October 1, 2001, Kevin Enslen went to a hospital emergency room, complaining of severe back pain. The emergency room physician, Andrew Khan, prescribed pain medication and bed rest.² At the time Enslen was also suffering "flu-like" symptoms, including fever, sweating, nausea, and had a visible infection of his arm and thumb, severe headaches and loss of vision in the right eye.

Still suffering the flu-like symptoms, on October 5 and 6, Enslen went to see chiropractor Charles Miles for acute mid- and low-back pain. Miles diagnosed "L4-5 subluxation," and "lumbar sprain/strain with associated muscle spasm." Both days Miles performed chiropractic adjustments on Enslen.

On October 8, 9, 10, and 12, Enslen saw another chiropractor, Robert Kennedy. (Kennedy also is known in the record as Mark Kennedy.) Kennedy diagnosed a variety of maladies, including "lumbar sprain, lumbar intervertebral disc syndrome," and "lumbar radiculitis." On each of the four visits, Kennedy also performed a chiropractic adjustment and myofascial release therapy on Enslen.

On October 16, Enslen returned to the same hospital emergency room, with complaints of nausea, vomiting, diarrhea, and a fever. Khan examined Enslen again, and ordered hydration and blood tests. Less than 24 hours later those tests revealed a staph infection.

Unfortunately the diagnosis came too late. While being re-admitted to the hospital, Enslen suffered a debilitating stroke caused by a raging infection ("bacterial endocarditis").

Enslen then sued the various medical providers involved in his treatment since October 1, including the two chiropractors, Miles and Kennedy, on the theory that in failing to tell him that he had a non-chiropractic condition, vital medical treatment of the staph infection was delayed. The two chiropractors eventually sought summary judgment on the theory that Enslen could prove neither negligence nor causation in their treatment of him. Each presented a declaration from a chiropractor and a medical doctor. The chiropractor opined that both Miles and Kennedy had complied with the chiropractic standard of care in their treatment of Enslen, while the medical doctor essentially opined that it made no difference what the two chiropractors might have done, the patient still would have suffered "the same medical outcome."

The trial court granted summary judgment on the theory that Enslen's competing expert, Melvyn Krause, a family practice physician, was unqualified to offer an opinion on the negligence of the two chiropractors in failing to realize that their patient was not suffering from a condition amenable to chiropractic treatment.

Because Krause's declaration is the focus of this appeal, we will set forth its contents at length.

Krause is board certified in family practice, and has practiced in Southern California for more than 42 years. He also stated, for what it was worth, that he was "readily familiar with the standard of care for medical practitioners, including chiropractors."³

Krause has also carefully reviewed Enslen's medical records from the two chiropractors (and other sources), and noted the following: That when Enslen "presented"⁴ to Miles and Kennedy, Enslen had a "triad of symptoms" indicating subacute bacterial endocarditis, namely severe back pain, fever, and a source of infection in the right arm. Krause also stated that when Enslen saw Miles on October 5 and 6, Enslen's pain was "noted to be in the mid back, constant and radiating to lower back, buttocks and proximal anterior thighs" and therefore was "clearly not radicular or nerve root pain." The pain was also extremely severe—a 10 on a scale of 1 through 10, and constant, also indicative that it was "not musculoskeletal pain." In fact, Enslen had suffered this same back pain prior to his visit to the hospital emergency room on October 1.

Krause then mentioned Miles' diagnosis of an L4-5 subluxation. Miles had taken no x-rays, and in Krause's opinion a physical exam would not show subluxation. Moreover, noted Krause, "subluxation at L4-5 is very rare absent a history of major trauma, such as a car accident, and no such history" was "present in this case." True, some "congenital subluxation can occur at L5-S1" but it is "usually just incidental and asymptomatic." And when such subluxation happens it certainly doesn't rate a 10 on a 1-through-10 scale of pain.

Krause further noted that "[m]ost low back or mid back musculoskeletal problems in an otherwise healthy 34-year-old male typically resolve within 4 days after onset," and its particular location, it was clear that Enslen's pain was too severe, had gone on too long, and been too constant to be a "chiropractic disorder." Since Enslen was clearly suffering from flu-like symptoms at the time, including fever, sweating, nausea, had "obvious signs of infection on his arm and thumb," and complained of severe headaches and the loss of vision in his right eye, Miles had a clear duty to refer Enslen to a qualified physician.

As to Kennedy, by the time the patient saw him on October 8, he had had low back pain for more than a week despite taking Vicodin, Motrin, and Flexeril. Moreover, each of Kennedy's diagnoses was clearly flawed: Kennedy's diagnosis of a lumbar sprain was not reasonable given the history of low back pain for more than a week despite the medications he was taking. Kennedy's diagnosis of lumbar intervertebral disc syndrome was not reasonable because of the lack of "radicular symptoms." Kennedy's diagnosis of lumbar radiculitis was not reasonable for the same reason. And Kennedy's diagnosis of lumbar myofascitis was not reasonable because the patient was not responding to all the medications he was taking. Moreover, there was no improvement by Enslen's last visit to Kennedy. Again, given the character, severity, location and constancy of the pain, the obvious signs of infection in the right arm and thumb, and the fact that the patient was complaining of headaches and loss of vision in the right eye, Kennedy too should have figured out that Enslen's condition was beyond the ability of a chiropractor to treat.

As mentioned above, the trial court granted summary judgment despite Krause's declaration.⁵ After an unsuccessful motion for reconsideration,⁶ a formal judgment was granted in favor of Miles and both defendants obtained a formal order of summary judgment. We construe the formal order in favor of Kennedy to also include a formal judgment, so as to facilitate this appeal as to both defendants, otherwise perfected as to Miles. (See e.g., Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539, 4 Cal. Rptr.2d 361.)⁷

III. DISCUSSION

A. The Standard of Review: A Twist on the Usual Abuse of Discretion Standard

To reiterate: Plaintiff's case against the chiropractors is not premised on the theory of improper chiropractic treatment qua chiropractic treatment (e.g., a poorly executed "Palmer adjustment") or even on a theory that the two chiropractors were under a duty to recognize that the plaintiff was suffering from the specific staph infection he was.⁸ The theory of the plaintiff's case is merely that the two chiropractors should have recognized his condition was "medical" as distinct from "chiropractic" and let him know that fact, so that presumably he could seek medical attention for it.

The imposition of a duty on chiropractors to at least recognize whether a condition is treatable through chiropractic, or is really a medical condition, is the clear rule throughout the United States. (See Proof of...