Kerkman v. Hintz, 86-0215

Decision Date11 March 1987
Docket NumberNo. 86-0215,86-0215
Citation138 Wis.2d 131,406 N.W.2d 156
PartiesJerome KERKMAN, Plaintiff-Respondent, Joyce Kerkman, Plaintiff-Cross-Appellant, v. Max A. HINTZ and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants-Appellants and Cross-Respondents.
CourtWisconsin Court of Appeals

Review Granted.

Robert L. Elliott (argued) and Kathy L. Nusslock of Cook & Franke, S.C., Milwaukee, for plaintiff-respondent and plaintiff-cross-appellant.

Frank R. Terschan of Frisch, Dudek and Slattery, Ltd., Milwaukee, for defendants-appellants and cross-respondents.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Dr. Max Hintz, D.C. appeals a judgment based on a jury verdict finding him liable for chiropractic malpractice. The principal issue on appeal concerns the appropriate standard of care by which to measure a chiropractor's diagnosis, treatment or referral of a patient. Because we conclude that the trial court erroneously instructed the jury on a chiropractor's standard of care, we reverse and remand for a new trial.

Dr. Hintz is a graduate of the Palmer College of Chiropractic in Davenport, Iowa. 1 On September 13, 1982, Jerome Kerkman consulted Hintz with complaints of soreness in the upper shoulders and neck and numbness in his hands. Kerkman had previously consulted Hintz in 1979 regarding pain in his lower back. In 1979, Hintz took an X-ray of Kerkman's spinal column, analyzed a subluxated C-1 vertebra and adjusted Kerkman's back. 2 At the initial 1982 visit, Hintz also analyzed a subluxation of the C-1 vertebra and performed an adjustment. It is undisputed that in the two weeks following Kerman's initial visit, Hintz performed between three and four additional adjustments of Kerkman's back.

Following these consultations, Kerkman's condition deteriorated and in November 1982, a neurosurgeon diagnosed Kerkman's back problems as resulting from a decompressed spinal column. Consequently, Kerkman underwent surgery. This resulted in temporary relief for Kerkman, but in June 1983, his condition again deteriorated. Further surgery revealed a herniated disc at the C-5/C-6 level of the cervical spine.

In May 1984, Kerkman commenced this malpractice action against Hintz alleging negligent treatment. At trial, however, the issue narrowed to one of alleged improper diagnosis, although evidence of the treatment was also received.

At the close of the evidence, Hintz proposed standard instruction Wis J I--Civil 1023 adapted to reflect the claim of chiropractic malpractice. 3 The trial court declined the proposed instruction and, instead, instructed that a chiropractor must exercise the same degree of care and skill that is usually exercised by a recognized school of the medical profession. 4 This instruction forms the initial basis for this appeal. Hintz also appeals the evidentiary ruling which permitted medical doctors to testify that the medical standard of care was breached by Hintz.

A trial court has broad discretion when instructing a jury. State v. Higginbotham, 110 Wis.2d 393, 403, 329 N.W.2d 250, 255 (Ct.App.1982). We will not reverse if the instruction, as a whole, communicates a correct statement of the law. Leahy v. Kenosha Memorial Hosp., 118 Wis.2d 441, 451, 348 N.W.2d 607, 613 (Ct.App.1984). However, where the instruction is erroneous and probably misleads the jury, we will reverse because the misstatement constitutes prejudicial error. Id. at 452, 348 N.W.2d at 613.

Hintz argues that the trial court's instruction erroneously held him to the same degree of skill as the medical profession when instead the trial court should have instructed on the degree of skill and care required from a reasonable and ordinary chiropractor of the same school as Hintz. Hintz points out that all of the chiropractors testifying at trial indicated that he had fulfilled the "reasonable chiropractor" standard.

The Kerkmans strongly argue that the trial court correctly instructed the jury based on Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015 (1923). 5 In Kuechler the trial court held that when a chiropractor undertakes to analyze or diagnose a patient's ailment, the chiropractor "must exercise the care and skill in so doing that is usually exercised by a recognized school of the medical profession." Id. at 244, 192 N.W. at 1017-18. There, a chiropractor concluded that a patient was suffering from "some derangement of the stomach with resulting nervousness and headache" when, in fact, the patient was afflicted with a brain tumor. Id. at 240, 192 N.W. at 1016. The court reasoned:

It is clear from the allegations of the complaint that defendant undertook to diagnose as well as to treat the disease. Diagnosis is ordinarily assumed and performed by licensed medical or osteopathic physicians. But it may be assumed by others, and it is held that the practice of chiropractic is the practice of medicine. And the fact that chiropractors abstain from the use of words like diagnosis, treatment, or disease is immaterial. What they hold themselves out to do and what they do is to treat disease, and the substitution of words like analysis, palpatation, and adjustment does not change the nature of their act. [Citations omitted.]

Id. at 244, 192 N.W. at 1017. (Emphasis in original.) 6

In order to resolve the issue raised, we are required to review the continued validity of the supreme court's holding in Kuechler. We view the question of a chiropractor's standard of care as one with widespread implications for the afflicted and for the chiropractic profession in Wisconsin. Consequently, we would ordinarily consider this review as beyond this court's error correcting or limited law declaring functions, see State v. Grawien, 123 Wis.2d 428, 432, 367 N.W.2d 816, 818 (Ct.App.1985); State ex rel. Swan v. Elections Bd., 133 Wis.2d 87, 108, 394 N.W.2d 732, 741 (1986) (Abrahamson, J., dissenting), and more properly within the institutional function of our supreme court. See State ex rel. Swan v. Elections Board, 133 Wis.2d 87, 93-94, 394 N.W.2d 732, 735 (1986). Intermediate appellate courts in other jurisdictions have also recognized this limitation, see Ferguson v. Gonyaw, 64 Mich.App. 685, 236 N.W.2d 543, 548-49 (1975), and supreme courts in other jurisdictions have resolved the question of a chiropractor's standard of care, see Rosenberg v. Cahill, 99 N.J. 318, 492 A.2d 371 (1985). For purposes of having the supreme court make this important statement, we certified this case to that body. Our certification, however, was rejected.

This court may examine legislation subsequent to a judicial pronouncement of a common law rule to determine whether the common law rule has been abrogated. American Family Mut. Ins. Co. v. Reciprocal Ins. Serv. Exch. Management Co., 111 Wis.2d 308, 310, 330 N.W.2d 223, 224 (Ct.App.1983). The basis for the court's holding in Kuechler was its conclusion that "the practice of chiropractic is the practice of medicine." Kuechler, 180 Wis. at 244, 192 N.W. at 1017. Because of subsequent legislative action, however, we conclude that the basis for the Kuechler holding has been abrogated and the standard of care laid down in Kuechler is no longer viable.

In 1923, at the time of Kuechler, chiropractors were unregulated practitioners. However, in 1925, the legislature laid down the regulatory framework for the licensing of chiropractors. See sec. 147.23, Stats. (1925). By 1956, the regulations spread to the administrative code which included a definition of chiropractic science. See 1956 Wis.Adm.Code, sec. Chir 1.01 et seq.; see also State v. Grayson, 5 Wis.2d 203, 92 N.W.2d 272 (1958) (holding the administrative rules and definitions to be valid).

Today, ch. 446, Stats., and the administrative code regulate the practice of chiropractic in Wisconsin. Chiropractic science is:

that body of systematic and organized knowledge relating primarily to the identification, location, removal or reduction of any interference to nervous system integrity or nerve energy expression and the resulting change in biomechanical or physiological homeostasis. It is based on the major premise that disease or abnormal function may be caused by abnormal nerve impulse transmission or expression due to biochemical factors, compression, traction, pressure or irritation upon nerves as a result of bony segments, especially of the spine or contiguous structures, either deviating from normal juxtaposition or function which irritates nerves, their receptors or effectors.

Wis.Adm.Code, sec. Chir 4.02. Section 446.01(2), Stats., defines the practice of chiropractic to mean:

(a) To examine into the fact, condition, or cause of departure from complete health and proper condition of the human; to treat without the use of drugs ... or surgery; to counsel; to advise for the same for the restoration and preservation of health or to undertake, offer, advertise, announce or hold out in any manner to do any of the aforementioned acts, for compensation, direct or indirect or in expectation thereof; and

(b) To employ or apply chiropractic adjustments and the principles or techniques of chiropractic science in diagnosis, treatment or prevention of any of the conditions described in s. 448.01(10).

The administrative code further elaborates that:

The practice of chiropractic is the application of chiropractic science in the adjustment of the spinal column, skeletal articulations and adjacent tissue which includes diagnosis and analysis to determine the existence of spinal subluxations and associated nerve energy expression and the use of procedures and instruments preparatory and complementary to treatment of the spinal column, skeletal articulations and adjacent tissue. Diagnosis and analysis may include physical examination, specimen analysis, drawing of blood, blood-analysis and the use of x-ray and other instruments.

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