Grainger v. Still

• Decision Date: 15 February 1905
• Citation: 85 S.W. 1114,187 Mo. 197
• Parties: GRAINGER v. STILL.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Supreme Court

85 S.W. 1114

187 Mo. 197

GRAINGER v. STILL.^*

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

PHYSICIANS — MALPRACTICE — INCORRECT DIAGNOSIS — EVIDENCE — PHYSICIANS OF CONFLICTING SCHOOLS — COMPETENCY AS WITNESSES.

1. The fact that a patient whose trouble was wrongfuly diagnosed as dislocation of the hip, and who was treated for such dislocation, and thereby caused to suffer a shortening of the leg and curvature of the spine, was in fact suffering from incipient hip disease, which would, without the improper treatment, have developed into a permanent condition, resulting in a shortening of the leg and curvature of the spine, does not preclude the patient from recovering damages for the improper treatment.

2. In an action for malpractice, evidence showing that before the operation complained of plaintiff was not suffering from a dislocation of the hip, and did not have hip disease; that defendant diagnosed plaintiff's trouble as a partial dislocation, and not hip disease, and treated her for such dislocation, thereby causing great pain and permanent injury — makes a prima facie case, and casts on defendant the burden of establishing his defense.

3. Rev. St. 1899, § 8507, prescribes the qualifications for physicians practicing medicine and surgery. Section 8537 declares osteopathy not to be the practice of medicine and surgery; and section 8538 authorizes graduates of certain institutions to treat diseases according to the osteopathic system. Section 8539 makes it a misdemeanor for any person not qualified under the preceding section to practice osteopathy, but provides that any legally authorized medical practitioner may cure or relieve disease by manipulation. Plaintiff was suffering from hip disease. which, as shown by the evidence, is ascribed to the same causes and diagnosed in the same way by osteopaths and physicians of every school of medicine. There was further evidence that osteopaths use the same textbooks as medical schools generally. Defendant, an osteopath, diagnosed plaintiff's trouble as dislocation of the hip, and treated her accordingly. Held, that expert medical witnesses, although not osteopaths, were competent to express an opinion as to the incorrectness of defendant's diagnosis of plaintiff's trouble, and also to testify to any scientific fact that should be known to every physician of any school or system, but were not competent to express an opinion as to the treatment of plaintiff by defendant, unless it should appear that both the osteopathic schools and those to which witnesses belonged employed the same treatment.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Goldie O. Grainger, by her guardian, against Charles E. Still. From a judgment for defendant, plaintiff appeals. Reversed.

Millan & Greenwood and G. C. Weatherby, for appellant. C. E. Murrell and Campbell & Ellison, for respondent.

MARSHALL, J.

This is an action to recover $10,000 damages for malpractice. At the close of the plaintiff's case the court sustained a demurrer to the evidence, the plaintiff stood upon the ruling, the jury returned a verdict for the defendant, and, after proper steps, the plaintiff appealed.

The petition alleges that the plaintiff is a minor, of the age of seven years; that her father is dead, and that she prosecutes this case by her duly appointed guardian; that prior to the 21st of September, 1895, she was afflicted with a slight stiffness in her right hip, but it was not sufficient to make her lame, or to cause her pain, or to materially interfere with her locomotion; that at said date the defendant held himself out as the president of the A. T. Still Infirmary, at Kirksville, in Adair county, and as a practicing osteopathic physician and surgeon, and as competent, qualified, and able to treat and reduce fractured, dislocated bones, nerves, muscles, and blood vessels, and to treat all such dislocations successfully and to reduce them osteopathically; that on said date the defendant "made an examination of plaintiff's hip, and diagnosed her disease, and pronounced it a partial dislocation of her right hip joint; that defendant assured plaintiff and her parents at that time that the reduction of said partial dislocation was a matter attended with no danger, and readily and easily performed, and that he could reduce said partial dislocation without injury to plaintiff"; that in consideration of the sum of $25, paid to the said infirmary, the defendant "undertook to treat plaintiff for said so-called partial dislocation of her hip; that the defendant represented and stated to plaintiff and her parents that he would treat the muscles and tendons about plaintiff's right hip osteopathically until they were sufficiently relaxed before he could reduce said so-called partial dislocation of plaintiff's said right hip joint; that defendant from the date aforesaid did manipulate the muscles, tendons, and blood vessels about plaintiff's right hip joint until about November 10, 1895, when he determined that muscles and tendons about plaintiff's right hip were sufficiently relaxed, and he then and there undertook to reduce the so-called partial dislocation of plaintiff's right hip; that in attempting to reduce said partial dislocation, so called, of plaintiff's hip joint, the defendant negligently, carelessly, and unskillfully took plaintiff by her right ankle with one of his hands and about the knee with the other hand, and with force and violence negligently, unskillfully, and carelessly forced plaintiff's right leg upward towards and against her body with such force and violence, and so negligently, carelessly, and unskillfully, that he gave to plaintiff's said right hip joint a complete, upward, and backward dislocation. Plaintiff states that defendant did not reduce the said so-called partial dislocation of her right hip, but, on the contrary, the defendant so carelessly, negligently, and unskillfully treated and managed plaintiff's disease and injury to her right hip that he permanently dislocated the same, and by defendant's careless, negligent, and unskillful conduct in treating plaintiff's right hip not only permanently dislocated the same, but injured, stretched, and tore the muscles, nerves, tendons, and blood vessels connecting with plaintiff's right hip joint, and as a result of defendant's said negligent, careless, and unskillful treatment the plaintiff was thrown into a violent fever, which continued for a long space of time, and she was made sore, sick, and to suffer great anguish and pain; that as a result of the careless, negligent, and unskillful conduct and treatment of plaintiff's disease by defendant her spine has become curved, and her right leg rendered entirely useless, and shorter than the other, and is gradually perishing, thereby rendering her maimed and deformed for life, and permanently injured, and her general health greatly impaired. Plaintiff further states that from November, 1895, until April, 1899, at the special instance and request of the defendant, she remained at the city of Kirksville aforesaid taking osteopathic treatment, under the direction of the defendant, for her said hip, and until defendant refused to longer treat her, and discharged the plaintiff." The answer denies generally all the allegations of the petition not expressly admitted, and then admits that the defendant is an osteopath, and that he treated the plaintiff osteopathically, and then alleges that at the time she was so treated she "was afflicted with hip joint disease and a partial dislocation of the hip joint, all of her right hip, as defendant then and now verily believes."

The case made by the plaintiff was this: In September, 1895, the plaintiff was a minor, aged about three years and eight months, and lived with her parents in Plymouth, Ill. She was a strong, fat, and healthy child, and had never required the services of a physician, except when teething. Her mother discovered a slight stiffness in her right hip, when she stooped to pick up anything from the floor. She examined her hip, but could discover nothing the matter with it, and no soreness or tenderness. She had her examined by the family physician, Dr. McDaniel, and by Dr. Aiken, and they found no soreness or tenderness about the hip, but only a little stiffness when she stooped, and said that there was no dislocation, but were of opinion she might develop hip disease. Her parents took her to Kirksville, to the defendant's infirmary, for examination. The defendant examined her, and told her mother that she had a partial dislocation of the hip, and that they handled cases of that kind successfully in two weeks, but she had better take a month's treatment. He further told her parents that she did not have hip disease. Her mother told him that her family physician said it might develop into hip disease; that her husband's people were consumptive, and she thought her father's condition might cause hip disease to develop in the child. The defendant examined her husband, but did not make a thorough examination, and said the child seemed hearty and well, and assured her mother that the child did not have hip disease, but that it was simply a dislocation. Thereupon plaintiff's parents took out a treatment card for a month, paying $25 therefor. On the following Monday the plaintiff's treatment by defendant began. It consisted of kneading the hip with the ends of his fingers and "rotating" the limb in the hip joint. The treatment lasted only three or four minutes. The plaintiff manifested no pain from the treatment. She boarded 10 or 12 blocks from the infirmary, and walked back and forth every time she went for treatment, and exhibited no trouble or pain in so doing. The treatment was kept up three times a week for a little over a month, and then the defendant told her mother the hip was ready to be put back into place. On the day appointed the plaintiff walked from her boarding house to...