Klimkiewicz v. Karnick

• Decision Date: 11 June 1962
• Docket Number: No. 19897,19897
• Parties: Anthony P. KLIMKIEWICZ and Helen M. Klimkiewicz, Plaintiffs in Error, v. Gretchen KARNICK, Defendant in Error.
• Court: Colorado Supreme Court

Page 736

372 P.2d 736

150 Colo. 267

Anthony P. KLIMKIEWICZ and Helen M. Klimkiewicz, Plaintiffs in Error, v. Gretchen KARNICK, Defendant in Error.

No. 19897.

Supreme Court of Colorado, In Department.

June 11, 1962.

Tilly and Skelton, Denver, for plaintiffs in error.

Fugate, Mitchem, McGinley & Hoffman, Colorado Springs, for defendant in error.

HALL, Justice.

The parties appear here in reverse order to their appearance in the trial court. The trial court dismissed the complaint against Helen M. Klimkiewicz, who is improperly included as a plaintiff in error in this court. We refer to the defendant in error as the plaintiff and to the plaintiff in error as defendant. The plaintiff is a school teacher; the defendant is a duly licensed and practicing chiropractor.

On October 14, 1959, plaintiff commenced this action seeking to recover damages for the alleged negligent and careless acts of the defendant in administering chiropractic treatments to the plaintiff.

In her complaint the plaintiff alleges that in October 1957 she employed the defendant to treat her and relieve her of neuralgia of the face, an ailment from which she was then suffering. She further alleges that on October 18, 1957, the defendant gave to plaintiff a purported chiropractic treatment, and in so doing carelessly manipulated her right arm causing her to suffer the loss of the use of the fingers of her right hand, and:

'* * * that plaintiff's extensor carpi radialis longus became detached from its usual connection to the wrist because of the negligent acts of said defendant.'

She further alleges that on January 11, 1958, the defendant gave her a further treatment and carelessly burned her right arm.

Because of these alleged negligent acts and consequent injuries plaintiff seeks general, special and exemplary damages in the total sum of $58,883.00.

The defendant filed his answer setting forth eight purported defenses; among others, a denial of negligence, consent, assumption of risk, unavoidable accident and the statute of limitations.

Trial was to a jury. The record is voluminous, consisting primarily of the testimony of the plaintiff, the defendant, and expert medical testimony.

The plaintiff testified that prior to October 11, 1957, she had been suffering from a cold, the flu, or neuralgia, and had received medication from her family physician. Response to the medication proving unsatisfactory, she, on October 11, sought the aid of defendant, and on that date was given heat treatment and chiropractic adjustment. This procedure was repeated on October 14 and again on October 18. On October 18, after completion of the heat treatment and chiropractic adjustment, plaintiff stated to defendant that the pain in her shoulders was much better, but that she still had some pain in her upper right arm; whereupon she claims that the defendant took plaintiff's right hand in his right hand, palm to palm, and manipulated the member by rotating the wrist back and forth several times, and then, according to plaintiff, without warning:

'* * * all of a sudden with tremendous force he yanked my right hand while it was extended from my body and in a twisted position.'

She further testified that as a result of the 'yank' she immediately suffered sharp pain the whole length of her arm, which pain persisted for only a split second and her 'hand and arm went instantly numb,' and that the eventual result was a so-called wrist drop and a curling under of the distal portions of her middle and ring fingers and inability to straighten them in the normal manner.

The plaintiff called as witnesses in her behalf an orthopedic surgeon, and her family physician whose specialty is internal medicine. The orthopedic surgeon first examined plaintiff two and one-half months after the alleged negligent conduct of the defendant. About three months after this examination he performed surgery on the plaintiff designed to remedy the wrist drop and finger curling from which plaintiff was then suffering.

Both experts expressed the opinion that plaintiff's condition of which she complained could have resulted from treatment such as that which plaintiff described as having been given to her on October 18, 1957. Neither of these doctors had had any experience in chiropractic. Plaintiff offered no evidence as to proper procedures to be followed in chiropractic treatment of ailments such as those of which plaintiff complained, or of the standards of care to be exercised by chiropractors in performing their professional duties.

The defendant testified in his own behalf and his version of the treatment given on October 18 was substantially the same as the version given by plaintiff, with one exception, and that is that he denied yanking her arm and stated that 'chiropractically speaking, a mild firm extension was given to the arm.' He further testified (and plaintiff admitted) that she made no outcry at any time during the treatment, and on completion thereof she went to the dressing room, dressed, opened her purse and paid him and got in her car and drove away without complaint or comment. About two months after being injured by the alleged 'tremendous yank' the plaintiff called the defendant by telephone and requested receipts for amounts paid to him so that they might be listed as medical deductions on her income tax returns. On that occasion she said nothing of her alleged injuries.

On Saturday, January 11, 1958, plaintiff, accompanied by a friend-witness, called on defendant and told him of her injuries and exhibited to him her wrist and fingers. At that time the defendant made a partial examination of plaintiff's arm, wrist and fingers, and requested that she return on the following Monday for further observation, diagnosis and treatment, if indicated. She never returned.

The defendant also called as witnesses in his behalf an orthopedic surgeon and two licensed chiropractors. The orthopedic surgeon, in answer to a question which assumes a 'hypothetical woman' and assumes two legal size pages of facts--the essential ones being in dispute--expressed the opinion that the injuries of which plaintiff complains could, as a medical possibility, not a probability, have occurred from the manipulations as explained in the hypothetical question. Each of the chiropractors called expressed opinions that the plaintiff's injuries could not have been caused by the alleged acts of negligence.

During the taking of testimony and in the presence of the jury the plaintiff stipulated that:

'* * * the technique that the defendant alleges he used on her was proper chiropractic treatment, that the method he demonstrated was proper.'

At the close of plaintiff's case and again at the close of all of the testimony, the defendant moved for a directed verdict, contending that the evidence did not warrant submitting the matter to the jury. Those motions were denied.

Nineteen instructions were given to the jury. The defendant objected to several, which objections we shall discuss later.

The jury returned one verdict in favor of the plaintiff and awarded her compensatory damages in the amount of $23,500.00. A second verdict was in favor of the defendant, denying plaintiff's claim for $15,000.00 exemplary damages.

Following return of the verdicts, defendant's then counsel requested permission to withdraw from the case for the reason that defendant had employed present counsel. This request was granted.

De...