Kelly v. Carroll, 31182.

• Decision Date: 31 May 1950
• Docket Number: 31182.
• Citation: 36 Wn.2d 482,219 P.2d 79
• Parties: KELLY, v. CARROLL et ux.
• Court: Washington Supreme Court

219 P.2d 79

36 Wn.2d 482

KELLY, v. CARROLL et ux.

No. 31182.

Supreme Court of Washington.

May 31, 1950

Department 2.

Rehearing Denied July 19, 1950. H. Earl Davis, Spokane, L. Vincent Donahue Spokane, for appellants.

Tustin, Chandler & Tustin, Clyde H. Belknap, Spokane, for respondent.

MALLERY, Justice.

This was an action for malpractice brought by the widow of Morris C. Kelly deceased, as administratrix, against the defendants, O. G. Carroll, a drugless healer, and his wife, Angela J. Carroll, his assistant.

From a judgment for the plaintiff, defendants appeal.

Kelly, having been ill for several days, went to the appellant on July 9, 1948, on the advice of his wife, the respondent. A pain, in the region of his stomach, had been bothering him, and the muscles of the abdomen were somewhat rigid. There was some nausea. Appellant was of the opinion that Kelly was undergoing a 'reaction.' After checking with a stethoscope, appellant applied hot and cold packs. An electrical massage was administered by an electrical device known as a 'sine wave.' A form of laxative, known to drugless healers as a '42,' was given. Appellant did not advise Kelly to remain quiet at home, but, on the contrary, required him to come to his office for treatments until he was unable to do so. On July 10th Kelly's temperature was 96.4 and appellant prescribed hot and cold packs, which respondent applied. On July 11th Kelly went to appellant's office where a since wave treatment was given, and Kelly regurgitated some afterwards. On July 12th the '42' being ineffective, appellant gave Kelly sodium phosphate as a purge. On July 13th more hot and cold packs were given, followed by another sine wave treatment. On July 15th, the pain having increased, appellant applied more cold packs. On July 16th appellant left town and Kelly was left in the care of appellant's wife, Angela. There being no improvement in Kelly's condition, she prescribed four tablespoonsful of caster oil on July 17th, and again on the 18th. Appellant returned to the city on July 19th, and was called to the Kelly home. Kelly, by this time, was too ill to go to appellant's office. Hot and cold packs were given and, also, a sine wave treatment. Later that day, appellant again came and immediately applied the sine wave. Kelly threw up violently following this. Two unsuccessful attempts were made to give an enema, and appellant expressed the opinion that Kelly had a collapsed lower bowel. At this point respondent begged appellant to call in a medical doctor. Appellant replied, 'We don't need an M. D. If you call an M. D. he will kill him.' Respondent again requested that a doctor be called in, whereupon appellant became angry and said he would 'throw up' the case if a doctor was called in. Appellant further stated that he would 'have him out of this in the next twenty-four hours.' On July 20th Kelly's temperature was 100.8 and appellant gave him a sine wave treatment. Kelly regurgitated after the treatment. Hot and cold packs were then applied. Appellant left, after prescribing pineapple juice. At about midnight on July 20th, appellant responded to a call and repeated the hot and cold packs, and the sine wave treatment. Kelly regurgitated matter that appellant said was 'pieces of the bowel.' Appellant then manually massaged Kelly's abdomen. When appellant left the house respondent followed him outside. Appellant told her that she could now 'call an M. D.,' but that he was leaving; that he would not stay until an M. D. arrived, despite respondent's entreaties, because he could not 'be here when an M. D. comes.' Previous to this last visit by appellant, the brother and sister-in-law of Kelly arrived, and the brother conversed with appellant outside the Kelly house. Appellant told the brother that he was 'stumped'; that it was the 'toughest [case] I have seen.'

Dr. Copsey was called to the Kelly home on the morning of July 21st, after appellant had left, and, immediately diagnosing the case as appendicitis, had Kelly removed to the hospital in an ambulance. At that time Kelly was moribund, and his abdomen was extremely rigid and distended. At the hospital he was given oxygen and treatment for shock, since he was near death and no blood pressure was obtainable. An operation was performed that same day, but no attempt was made to explore after the incision was made, for the reason that a large quantity of pus was encountered, and the doctors thought it best to simply try to drain the matter present Before further surgery was attempted.

Kelly died July 28th, and an autopsy was performed that same day. From the autopsy it was determined that death resulted from peritonitis, and that the appendix had completely rotted off from the portion of the bowel to which it is normally attached.

At the threshold of the discussion of this case, several basic propositions call for attention. The first one is that the appellant Carroll is not a doctor.

Throughout the trial, the briefs, and the arguments to this court, appellant was invariably referred to by every one as 'doctor.' Rules of law in cases applicable to doctors have been cited without challenge. In previous cases the almost constant assumption that drugless healer 'practitioners' were doctors, has gone unchallenged. Indeed, the assumption is of such long standing, and has become so deeply entrenched that one challenging it, at this late date, is expected to support the challenge rather than merely to make it.

Such an assumption may not be justly attributed to the legislature by reason of anything it said in licensing the drugless healers to practice in this state. An examination of all the statutes bearing upon the subject nowhere reveals any reference to drugless healers as 'doctors,' nor will the language used sustain even a remote inference that they are permitted to practice any phase of medicine or surgery. Limitation in the statutes specifically negatives such an assumption. Rem.Rev.Stat. § 10124 prohibits the practitioner from designating himself as a doctor.

Rem.Rev.Stat. § 10114 provides, in part, as follows:

'The following forms of certificates shall be issued by said board under the seal thereof, and signed by the president and secretary:

'First. A certificate authorizing the holder thereof to practice mechanotherapy;

'Second. A certificate authorizing the holder thereof to practice suggestive therapeutics;

'Third. A certificate authorizing the holder thereof to practice food science;

'Fourth. A certificate authorizing the holder thereof to practice physcultopathy;

'Fifth. A certificate for any other separate and co-ordinate system of drugless practice, * * *. Practitioners hereunder shall confine their practice to the subjects and system or systems represented by their certificate or certificates granted by said board. * * *'

Rem.Rev.Stat. § 10123 provides as follows: 'The term 'drugless therapeutics,' as used in this act consists of hydrotherapy, dietetics, electro-therapy, radiography, sanitation, suggestion, mechanical and manual manipulation for the stimulation of physiological and psychological action to establish a normal condition of mind and body, but shall in no way include the giving, prescribing or recommending of pharmaceutic drugs and poisons for internal use, the purpose of this act being to confine practitioners hereunder to drugless therapeutics.'

In plain English language, a drugless healer practitioner is licensed to make use of (1) heat and cold through the medium of either water or electricity; (2) exercise or movement of the parts of the body; (3) manual or mechanical massage or vibration of parts of the body; (4) electric radiations or currents; (5) diet; and (6) mental suggestion. In short, his practice must be drugless.

A drug is a substance that is used as a medicine. As was said in State v. Baker, 229 N.C. 73, 48 S.E.2d 61, 66: '* * * a 'drug' is any substance used as a medicine or in composition of medicines for internal or external use, and a 'medicine' is any substance or preparation used in treating disease. [Citing cases and authorities.] Hence, the term 'drugs' embraces patent or proprietary remedies possessing or reputed to possess curative or remedial properties sold and used for medicines. This is true irrespective of whether such remedies contain poisonous ingredients, or whether they may be purchased without any direction from a physician, or whether they can be obtained at retail stores generally. Calling drugs domestic or family remedies does not rob them of their character as medicines. * * * The lexicographers declare that a laxative is a medicine. * * * The test is whether it is administered or employed as a medicine. * * *' (Italics ours.)

One who administers a drug is practicing medicine. That drugless healers are not doctors, and are prohibited from practicing medicine and surgery, is beyond controversy in the light of our repeated decisions upholding their criminal conviction for that offense.

In State v. Lydon, 170 Wash. 354, 16 P.2d 848, the court said of a drugless healer, charged with the unlawful practice of medicine and surgery, that '* * * The course of treatment consisted largely of keeping the patient upon a liquid diet with frequent hot baths. It was the theory of the appellant that the general condition of the body should be improved as much as possible by aiding the eliminative processes and at the same time the cancer would be brought to a head, when it could be treated as boils are commonly treated; that is, by lancing.'

The court held that the act of lancing was surgery and sustained the conviction.

The gist of the case of State v. Karsunky, 197 Wash. 87, 84 P.2d 390, 393, in which a drugless healer was convicted of practicing medicine,...