Foster v. Thornton

• Decision Date: 21 September 1936
• Parties: FOSTER v. THORNTON.[*]
• Court: Florida Supreme Court

170 So. 459

125 Fla. 699

FOSTER v. THORNTON.^[*]

Florida Supreme Court

September 21, 1936

Rehearing Denied Nov. 16, 1936.

En Banc.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by L. Elmer Thornton against C. E. Foster. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

BUFORD J., dissenting.

COUNSEL

Montague Rosenberg, of Jacksonville, and Arthur T Holmes, of LaCrosse, Wis., for plaintiff in error.

Stockton Ulmer & Murchison, of Jacksonville, for defendant in error.

OPINION

TERRELL Justice.

On June 23, 1932, in an action for malpractice, defendant in error secured a judgment against the plaintiff in error in the circuit court of Duval county for $5,000. The judgment was on writ of error reversed by this court August 10, 1933. On petition for rehearing the judgment of reversal was receded from, and by opinion filed February 9, 1934, the judgment of the court below was affirmed. Foster v. Thornton, 113 Fla. 600, 152 So. 667. Plaintiff in error then filed petition for rehearing, which was denied February 27, 1934. On June 26 following, this court on motion of plaintiff in error entered its order directing the clerk of the circuit court to return the mandate to this court. A second oral argument was heard July 31, 1934, and on December 6 following a per curiam opinion was filed, which among other things announced an equal division of the court and reinstated the judgment of reversal, dated August 10, 1934. Foster v. Thornton, 119 Fla. 49, 160 So. 490.

The mandate of this court went down, and the case was retried June 3, 1935, resulting in a verdict for $20,670, which was reduced by a remittitur in the sum of $10,000, and final judgment was entered for $10,670, from which the present writ of error was prosecuted.

The case grows out of these facts: The plaintiff in error was a chiropractor, and on the 22d day of January, A. D. 1932, the wife of defendant in error went to his office for a chiropratic treatment. She had been treated by him once each day for the four days immediately preceding the date last named. She had been a sufferer for years from migraine headaches and had been treated by a number of allopaths, without beneficial results. Immediately following the fifth treatment, Mrs. Thornton was seized with severe pain in the head and neck, cried and groaned profusely, became nauseated and vomited, followed by unconsciousness. Dr. Porter, who had an office in the same building, was called by the plaintiff in error and gave her one-half grain of morphine to allay the pain. The pain continued, and Dr. Johnson was called about an hour later and gave a second dose of morphine. Mrs. Thornton was carried home in an ambulance and died about two weeks later. During the interim she was in an unconscious or semiconscious condition. This action was by the husband, defendant in error, to recover damages for the loss of his wife on the theory that the treatment was negligently done.

An autopsy was performed on the day Mrs. Thornton died, and the cause of her death was pronounced as 'Hemorrhagic Pachymeningitis. Thrombosis left lateral sinus. Hemorrhage Cervical Spinal Canal, Regions 1-2-3 Cervical vertebrae.' The death certificate showed that she died of 'acute hemorrhagic pachymeningitis.' Plaintiff's theory of the case was that his wife came to her death by reason of a lesion or tear in the left lateral sinus caused by the application of an undue amount of force by defendant in making the chiropractic adjustment, while the plaintiff in error contends that the deceased came to her death by natural causes, that the lesion in the left lateral sinus was not the cause of her death, and that it was not caused by the application of undue force in making the adjustment. This was the issue presented by the pleadings.

In the decision dated August 10, 1933, we held in effect that, in an action for damages resulting from an injury caused by negligent treatment of a patient by a doctor, the doctrine of res ipsa loquitur does not apply, that when applied to for treatment the doctor must determine at his peril whether or not the ailment complained of may be properly treated and the method to be followed in the treatment, but that error, unskillfulness, or negligence in diagnosis or treatment will not be proven by the fact that the patient continues to suffer, grows worse, or dies, because if this were the case, doctors would be warrantors of cures.

We also held that negligence in a case like this might be inferred from circumstances proven, but that, when circumstantial evidence is relied on to establish negligence on the part of a physician or surgeon in the administration of treatment to a patient whom the physician or surgeon has decided should be subjected to the particular treatment administered, the circumstances should raise a fair presumption of negligence.

The ultimate question with which we are confronted here is whether or not the jury were warranted in assuming that the defendant applied undue force and failed to exercise the degree of care required by chiropractic standards in treating Mrs. Thornton.

About four hundred pages of evidence is brought here affecting this issue. Some of it is pertinent, and much of it has no place in the record. That which is pertinent shows that the deceased had a thorough physical examination about three weeks before she went to the defendant for treatment and was pronounced to be a 'perfectly healthy person except for migraine headaches and slightly high blood pressure.' When deceased went to defendant for the treatment complained of, she was told by him that her trouble was in the cervical vertebrae (those in the neck), and he proceeded to give her an adjustment by a sharp twist of the neck. Deceased immediately felt a sharp pain in the back of her neck and head as though something went through the top of her head. She cried and groaned with pain in the head and neck, became nauseated, vomited, fainted, and the elements turned black. Dr. Porter was summoned from his office fifty or sixty feet away and administered a hypodermic of morphine. He testified that he had heard deceased's cries of pain for several minutes before he was summoned and heard them for ten minutes after returning to his office. Dr. Johnson was summoned an hour later, and testified that he found deceased in a very serious condition, her pulse and heart were weak, she was in a comatose state, was cold and clammy, the pupil of her left eye was dilated, and that of her right eye was contracted, pointing to a brain injury, and she was in an unconscious condition. About two hours after she was injured Mrs. Thornton was, on the advice of Dr. Johnson, removed to her home by ambulance, where she continued unconscious for two days. She then regained consciousness but was partially paralyzed, unable to do anything for herself, daily grew worse, and died two weeks later in the hospital.

Deceased had suffered no bodily injury and had had no external force applied except the adjustment by defendant. An autopsy was performed, the brain was removed and submerged in a 10 per cent. solution of formaldehyde, and later a sectional microscopic examination of it was made by a well-qualified pathologist, who testified that it was normal in every respect; that death was caused by a hemorrhage resulting from a ragged tear about three-quarters of an inch long in the left lateral sinus; that in his opinion such a tear could have been brought about only by the application of violent external force in a negligent manner; that the causes of deceased's death took place prior thereto, and that the injury to her...