Kerkman v. Hintz, 86-0215

Citation142 Wis.2d 404,418 N.W.2d 795
Decision Date11 February 1988
Docket NumberNo. 86-0215,86-0215
PartiesJerome KERKMAN, Plaintiff-Respondent-Petitioner, Joyce Kerkman, Plaintiff-Cross-Appellant-Petitioner, v. Max A. HINTZ and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants-Appellants and Cross-Respondents.
CourtUnited States State Supreme Court of Wisconsin

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

Frank R. Terschan (argued), Frisch, Dudek & Slattery, Ltd., Milwaukee, for defendants-appellants and cross-respondents.

CALLOW, Justice.

This is a review of a published decision of the court of appeals, Kerkman v. Hintz, 138 Wis.2d 131, 406 N.W.2d 156 (Ct.App.1987), reversing a judgment of the circuit court for Racine county, Judge John C. Ahlgrimm, which found Dr. Max A. Hintz, Chiropractor, liable for malpractice.

There are two issues presented on review. First, did the circuit court instruct the jury correctly on the appropriate standard of care by which to measure a chiropractor's diagnosis, treatment, or referral of a patient? Second, in light of an award of $241,000 in damages to Mr. Kerkman for past and future pain, suffering and disability, past medical expenses, and loss of earning capacity, should an award of no damages to Mrs. Kerkman for loss of consortium be reversed in the interest of justice? Because we conclude that a chiropractor should be held to a standard of care which requires the chiropractor to exercise the same degree of skill which is usually exercised by a reasonable chiropractor in the same or similar circumstances, we hold that the circuit court's instruction to the jury on the appropriate standard of care was erroneous. Accordingly, we affirm that part of the decision of the court of appeals which remanded the cause for a new trial on negligence. We further conclude that a new trial on the question of Mrs. Kerkman's damages is not required. Accordingly, we reverse that part of the decision of the court of appeals which remanded the question of Mrs. Kerkman's damages to the circuit court for further consideration.

In September, 1982, Jerome Kerkman (Kerkman) consulted Dr. Max A. Hintz, Chiropractor (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 had taken an X-ray of Kerkman's spinal column and adjusted Kerkman's back. Hintz is a graduate of the Palmer College of Chiropractic (Palmer College) located in Davenport, Iowa, and his speciality is upper cervical chiropractic. Upper cervical chiropractic concentrates treatment on the top two vertebrae of the spine--the atlas and the axis.

At the initial visit in September, 1982, Hintz took a history from Kerkman, analyzed a subluxation of the C-1 vertebra, and performed an adjustment. In the two weeks following the initial visit, Hintz saw Kerkman three times and performed two, possibly three, additional adjustments of Kerkman's back. Following these adjustments, Kerkman's condition deteriorated.

In November, 1982, Kerkman went to his family medical physician, Dr. Baker. During the course of Dr. Baker's examination of Kerkman, Dr. Baker called in a neurosurgeon, Dr. Harry H. Lippman (Lippman). Lippman diagnosed a compressed spinal column and thereafter performed an operation to relieve the compression. Following the surgery, Kerkman felt better temporarily. However, Kerkman's condition began to deteriorate, and a second operation was performed to remove a herniated disc at the C-5/C-6 level of the cervical spine. Following the second operation, Kerkman still had problems with numbness in his hands, walking, and bladder control.

In May of 1984, Kerkman commenced this action against Hintz, alleging negligent treatment. In addition, Mrs. Kerkman joined the action with a claim for loss of consortium. At trial, the evidence presented by Kerkman, concerning whether Hintz had met the required standard of care, focused on whether Hintz had exercised the care and skill exercised by a recognized school of the medical profession. Specifically, Kerkman introduced the testimony of two neurosurgeons, Dr. Lavern Herman and Dr. Harry Lippman, both of whom testified that from a medical standpoint Hintz had not conducted a proper diagnosis of Kerkman. In opposition to the evidence presented by Kerkman, the evidence introduced by Hintz focused on Hintz's assertion that he had exercised the same degree of care which is usually exercised by a reasonable chiropractor.

At the close of evidence, Hintz requested Wisconsin Civil Jury Instruction 1023, modified to reflect the fact that the claim was for chiropractic malpractice. 1 In essence, Hintz requested an instruction that, as a chiropractor, he was required to exercise the same degree of care which is usually exercised by a reasonable chiropractor. The trial court declined to give the proposed instruction and, instead, instructed the jury that a chiropractor must exercise the same degree of care and skill which is usually exercised by a recognized school of the medical profession. 2 On August 16, 1985, the jury returned a verdict awarding Kerkman $241,000 in damages. The jury verdict further provided that nothing be awarded to Mrs. Kerkman for loss of consortium.

Following trial, Hintz filed several motions after verdict, alleging primarily that the circuit court had erred when it instructed the jury that Hintz was to be held to the same degree of care and skill which is usually exercised by a recognized school of medicine. Hintz further alleged that the circuit court erred in permitting medical doctors to testify that the medical standard of care was breached by Hintz. Kerkman also filed motions after verdict requesting: (1) judgment on the verdict and (2) that the circuit court change the award of no damages for loss of consortium to an award of $15,000.

In denying Hintz's motions, the circuit court noted that its instruction to the jury was based on Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015 (1923), in which it was held that, in evaluating a patient's condition prior to treatment, a chiropractor must exercise the same degree of care and skill which is usually exercised by a recognized school of the medical profession. 3 The circuit court further ruled that, because the chiropractor's treatment had invaded the field of medicine, it was appropriate to permit medical doctors to testify that the medical standard of care was breached. After denying Kerkman's request to change the loss of consortium jury determination, the circuit court granted Kerkman's motion for judgment on the verdict.

Both Kerkman and Hintz appealed from the order and judgment of the circuit court, each raising substantially the same issues which were before the circuit court. The court of appeals reversed the judgment of the circuit court. According to the court of appeals, the standard of care articulated in Kuechler had been abrogated through subsequent legislative action which recognized chiropractic care and provided for the licensing of chiropractors. Kerkman, 138 Wis.2d at 139, 142, 406 N.W.2d 156. The court of appeals then established a new standard of care which required chiropractors "to (1) recognize a medical problem as contrasted with a chiropractic problem; (2) refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient's condition is not amenable to chiropractic treatment and the continuation of the treatment may aggravate the condition; and (3) refer the patient to a medical doctor when a medical mode of treatment is indicated." Id. at 144, 406 N.W.2d 156. The court of appeals further held that, in determining whether a chiropractor has breached his or her duty, that the chiropractor "is held to the same standard of care as the reasonable chiropractor in the same or similar circumstances." Id. Because the jury was improperly instructed, the court of appeals reversed the judgment of the circuit court and remanded for a new trial on the issue of negligence, with instructions for the circuit court to determine whether the erroneous instruction affected the determination of damages as to both Mr. and Mrs. Kerkman, and whether a new trial on the issue of damages was required.

The court of appeals also addressed the question of whether nonchiropractic experts could be used to establish a breach of the chiropractor's standard of care. In this regard, the court of appeals held that, because of the overlap between the chiropractic and medical professions, a medical doctor's testimony is admissible if there is a sufficient factual showing that the medical witness is qualified by knowledge, skill, experience, training, or education to give the requested opinion. Id. at 149, 406 N.W.2d 156 (citing sec. 907.02, Stats.). On May 7, 1987, this court granted Kerkman's petition for review.

Kerkman, in asserting that it was error for the court of appeals to conclude that the Kuechler holding had been abrogated, contends that the legislative enactment of separate licensure for chiropractors emphasizes the legislature's recognition of the need for a chiropractor to be held to a medical standard of care when diagnosing a patient's condition before rendering chiropractic treatment. According to Kerkman, instead of liberating chiropractors from being held to a standard for diagnosing a patient's condition consistent with medical knowledge, the codification and recodification of the administrative regulation of the Chiropractic Examining Board has served to underscore the recognition that the safety of the patient is paramount and that the chiropractor must know when the patient's problem is beyond the bounds of the chiropractor's training and education. It is Kerkman's position that the circuit court properly relied upon Kuechler and properly...

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