Leech v. Bralliar

• Decision Date: 21 September 1967
• Docket Number: No. Civ. 4154 Phx.,Civ. 4154 Phx.
• Citation: 275 F. Supp. 897
• Parties: James Emerson LEECH, Plaintiff, v. Floyd B. BRALLIAR, M.D. and Marcella Bralliar, husband and wife, Defendants.
• Court: U.S. District Court — District of Arizona

275 F. Supp. 897

James Emerson LEECH, Plaintiff, v. Floyd B. BRALLIAR, M.D. and Marcella Bralliar, husband and wife, Defendants.

No. Civ. 4154 Phx.

United States District Court D. Arizona.

September 21, 1967.

Samuel Langerman, of Langerman, Begam & Lewis, Phoenix, Ariz., for plaintiff.

John Westover, of O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for defendant.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

MUECKE, District Judge.

This cause came on for trial without a jury and the Court having heard the evidence, finds the facts and states the conclusions of law as follows:

FINDINGS OF FACT

1. Plaintiff, James Emerson Leech, suffered injuries as a result of an automobile accident occurring on July 3, 1958, and on that date, employed the defendant, Floyd B. Bralliar, M.D., to render medical services for the treatment of his injuries.

2. Plaintiff's injuries from the automobile accident of July 3, 1958 consisted of moderate sprains of the neck and back, commonly referred to as "whiplash" injuries.

3. Defendant recommended a method of treatment called prolotherapy to plaintiff for his injuries within a few days of plaintiff's first visit to defendant. Plaintiff did not, at this time, agree to this treatment.

4. Prolotherapy as a method of treatment was first prominently used and named by George Stuart Hackett, M.D., F.A.C.S., of Canton, Ohio, who in 1956, published a book about prolotherapy, wherein he described this method of treatment.

5. This method of treatment, called prolotherapy, consists of injecting ligamentous attachments with a sclerosing or proliferating solution for the purpose of creating a proliferation of tissue at the attachment of ligaments to the bone. The purpose of injecting this solution into the ligamentous attachments is to create a "weld" of torn ligaments.

6. Sometime around 1957, the defendant, Doctor Bralliar, read Doctor Hackett's book and, based upon what he learned therefrom, began to administer prolotherapy to some of his patients. Thereafter, Doctor Bralliar visited Doctor Hackett's office in Canton, Ohio and, while he was there, prolotherapy injections were administered to him by Doctor Hackett. At that time, Doctor Hackett explained to Doctor Bralliar how to administer these injections. Doctor Bralliar corresponded with Doctor Hackett from time to time and purported to follow Doctor Hackett's manner of treatment. The instructions which Doctor Bralliar gave to his patients and the back exercises suggested by him for prolotherapy patients are taken verbatim from Doctor Hackett's book.

7. Plaintiff's whiplash injuries required him to lose no work between the dates of July 3, 1958 and August 1, 1958. During this period, plaintiff was not hospitalized nor did he take any narcotics.

8. From July 3, 1958 to August 9, 1958, plaintiff was treated with conservative methods by defendant, including manipulation of the injured area.

9. On August 9, 1958, defendant, following defendant's recommendations to plaintiff and with plaintiff's permission, instituted prolotherapy treatment of plaintiff's injuries.

10. Defendant described prolotherapy to plaintiff as the only type of treatment known to the medical profession which was specifically designed for treatment of his type of injury and that it was the best available. Defendant further advised plaintiff that defendant had personally used this treatment and that approximately sixty-five physicians in the United States were using this method of treatment, and that success by the use of this treatment was about 85%. Defendant further advised plaintiff that the treatment was very painful and that good results might be expected.

11. While plaintiff was informed by defendant, as described in Finding of Fact No. 10, the plaintiff was not informed as to defendant's deviations from the manner of treatment prescribed by Doctor Hackett, as these deviations are set forth in Finding of Fact No. 16.

12. Defendant continued to treat plaintiff according to his method of prolotherapy for the period from August 9, 1958 to January 8, 1960. Thereafter, defendant treated plaintiff with other means on February 9 and 12, 1960 and April 26, 1960.

13. The defendant injected over 200 different ligaments in the course of his prolotherapy treatment of the plaintiff during the period from August 9, 1958 to January 8, 1960. Usually, each treatment consisted of a number of injections into one ligamentous attachment. On a number of occasions, areas which had been previously injected were reinjected within periods of a few days or from one to four weeks from the time of original injections. At the same time these injections were being given, defendant manipulated the neck and back of the plaintiff in the areas which were also being injected.

14. Prolotherapy, as espoused by Doctor Hackett at the time defendant instituted its use upon plaintiff, was recognized as an appropriate method of therapy by a small minority of physicians in the United States and was a method of treatment they themselves used. This minority of physicians has not been shown to be other than respectable physicians.

15. During the course of therapy by the defendant, he prescribed various types of medication, including narcotics, which were used by the plaintiff. The last prescription for narcotics was written for the plaintiff by the defendant in February, 1960. Plaintiff was instructed and advised by defendant to use such narcotics in connection with the pain resulting from the prolotherapy injections and that such use was preferable to permitting the pain to grow too intense.

16. Defendant varied his method of treatment of the plaintiff by prolotherapy from that recommended by Doctor Hackett in the following particulars:

a. Defendant started treating plaintiff with prolotherapy five weeks after the injury whereas Doctor Hackett recommended no treatment by prolotherapy for a minimum of three months. The three month period is recommended to allow normal healing of injured tissue to take place and to permit treatment by conservative or conventional methods.

b. Defendant diagnosed plaintiff as having torn ligaments at a time when plaintiff had muscle spasms, and Doctor Hackett had advised that it is impossible to diagnose torn ligaments when muscle spasms are present.

c. Defendant repeated injections in areas previously injected without waiting a minimum of six to eight weeks, contrary to Doctor Hackett's statement that such a wait is necessary because it took that long for the reaction to subside and for the proliferating solution to build up new tissue.

d. Defendant used a solution for his injections which was 50% stronger in terms of sclerosing material than that recommended by Doctor Hackett.

e. Defendant manipulated plaintiff's neck and back in the course of treatment with prolotherapy. This was contrary to Doctor Hackett's express warning that manipulation was contra-indicated because the new cells were weak and the anticipated benefits would be less if the cells were subjected to strain before they were strong.

17. All of the variations from Doctor Hackett's method of treatment by the plaintiff, as set forth in Finding of Fact No. 16, did not have the approval then—at the time of the plaintiff's treatment by the defendant—or since then, by the respectable minority of the medical profession who recognize prolotherapy as a proper method of treatment.

18. Prolotherapy, as a method of treatment, either as espoused by Doctor Hackett or as practiced by the defendant in his treatment of the plaintiff, has not been accepted as a proper method of treatment by the medical profession generally, other than as set forth in Finding of Fact No. 14.

19. As a result of the prolotherapy treatments, as these were administered by the defendant to the plaintiff, a scarring or fibrosing or sclerosing of the soft tissue of the neck and back has occurred, which is permanent in nature and which has caused, is causing, and will cause severe and intractable pain to plaintiff. Further, the injections themselves were very painful. As a result of the pain resulting from the injections and scar tissue in plaintiff's back and neck, the plaintiff was and is under great stress.

20. As a result of this continuing pain and stress, plaintiff has developed gastro-intestinal complaints; including a peptic ulcer first diagnosed by the defendant in October, 1959. Such gastro-intestinal complaints were not present before plaintiff's treatment by the defendant, but were caused by the pain, tension, stress, and medication concomitant with defendant's use of prolotherapy upon the plaintiff.

21. From the time plaintiff first started receiving prolotherapy treatment as administered by the defendant, until the present time there has been no period of time when the plaintiff did not require substantial pain-relieving medication to control, or attempt to...