Kuechler v. Volgmann

• Decision Date: 03 April 1923
• Citation: 192 N.W. 1015,180 Wis. 238
• Parties: KUECHLER v. VOLGMANN.
• Court: Wisconsin Supreme Court

180 Wis. 238

192 N.W. 1015

KUECHLER

v.VOLGMANN.

Supreme Court of Wisconsin.

April 3, 1923.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Herman F. Kuechler against Frank C. Volgmann.From an order sustaining a demurrer ore tenus to the complaint, plaintiff appeals.Reversed and remanded, with directions to overrule the demurrer.

Action for malpractice.The material allegations of the complaint are as follows:

“That the above-named defendant is a chiropractor, so called, practicing his profession in the city of Kenosha, in said county and state.That at the time hereinafter mentioned he has held himself out to the public as capable of treating persons afflicted with disease and bodily ailments, and holding out, representing, and advertising to relieve and cure persons so afflicted without the use of medicines or drugs, and by a form or method peculiar to the class of practitioners to which the defendant belongs, and who are known to the public as chiropractors.

That on or about the 28th day of September, 1918, the above-named plaintiff was afflicted with and suffering from such disorders of bodily functions as to cause him to believe in the necessity of consulting and conferring with some person of the required learning, skill, and experience to alleviate, relieve, and cure such affliction of which he was suffering.

That on or about said day he consulted the above-named defendant, who was then practicing his said profession at the city of Kenosha, and employed the said defendant as such chiropractor to relieve and cure him of such disease or malady from which he then suffered for compensation to be paid therefor, and for that purpose the said defendant undertook as a chiropractor to attend and care for the plaintiff.

That the said defendant then entered upon such employment, and either through lack of care, want of understanding, or knowledge of the symptoms of well-known disease, did not use due and proper care or skill in endeavoring to cure plaintiff of the disease or malady of which he was suffering, and negligently undertook the treatment of said plaintiff upon misapprehension that the said plaintiff was suffering from some derangement of the stomach with resulting nervousness and headache, of which the said plaintiff then suffered.That at said time the said plaintiff was afflicted with and suffering from a tumor which was growing in his head, and which was the cause of such derangement of bodily function.

That the said defendant for compensation paid to him from time to time by the plaintiff continued to treat the plaintiff according to the methods used by members of defendant's profession for a period of eight months, during which time the said defendant failed to either relieve or alleviate the suffering of said plaintiff, but the pain and suffering of said plaintiff continued to grow worse and worse, and disorders of his body became more aggravated under such treatment, whereupon the defendant advised plaintiff to go West for relief on or about the 21st day of May, 1919.

That while in the West the defendant continued to fail in health and the pain and suffering continued to increase, and his headaches and dizziness of which he continually suffered became more severe and finally he became at times blind.

That on or about the 8th day of August, 1919, he returned to Kenosha, Wis., and on the 10th day of September, 1919, he went to the Augustana Hospital in the city of Chicago, for treatment, and there his malady was immediately diagnosed by a physician and surgeon of skill and experience as a tumor growing within the head, which had been for a long time, and then was, irritating the brain, and it became necessary to operate upon the said plaintiff and in order to save the life of plaintiff it was necessary to remove a large portion of the skull of plaintiff in order to relieve the intracranial pressure resulting from the growth of such tumor.

That this plaintiff is informed and believes that if the said defendant had possessed ordinary skill or ability in the treating of disease he would by the exercise of ordinary care have known that the said defendant was suffering from the effect of a tumor growing in his head, and by the exercise of ordinary care would have known that the methods adopted by him to relieve said plaintiff were useless and only aggravated his suffering and affliction.

Plaintiff further alleges, and he is informed and believes, that if the said defendant had used ordinary care and skill in diagnosing the affliction of the plaintiffhe would have known by the use of such ordinary care that the said plaintiff was afflicted with tumor, and that an operation upon the plaintiff at the time when the plaintiff first consulted the said defendant would have effected an immediate and permanent cure.

That because of the long time which the said tumor was allowed to grow under the treatmentof the said defendant, it became impossible for surgeons of acknowledged skill and ability to remove such tumor from the head, but the only relief which could be accorded to the plaintiff was the operation hereinbefore alleged.

That by reason of the defendant's negligence and unskilled examination and treatment of said plaintiff,...