Malmstrom v. Olsen, 10110

• Decision Date: 19 March 1965
• Docket Number: No. 10110,10110
• Citation: 400 P.2d 209,16 Utah 2d 316
• Parties: d 316 Marion W. MALMSTROM, Plaintiff and Appellant, v. Theron C. OLSEN, Defendant and Respondent.
• Court: Utah Supreme Court

Page 209

400 P.2d 209

16 Utah 2d 316

Marion W. MALMSTROM, Plaintiff and Appellant, v. Theron C. OLSEN, Defendant and Respondent.

No. 10110.

Supreme Court of Utah.

March 19, 1965.

Richards, Bird & Hart, Salt Lake City, for appellant.

Hanson & Baldwin, Rex J. Hanson, Salt Lake City, for respondent.

WADE, Justice:

The plaintiff, Mrs. Malmstrom, appeals from a nonsuit judgment after she had submitted her evidence to the court and jury. She claims damages from defendant, Dr. Olsen, respondent here, a licensed chiropractor, for negligent malpractice in violently jerking her neck and head in giving treatments for low back pains in her spine, and thereby rupturing the fifth and sixth cervical discs in her neck. The nonsuit was granted for lack of expert testimony that Dr. Olsen failed to comply with the recognized standards of skill and care for chiropractice treatments here.

In Fredrickson v. Maw, ¹ we said, '* * * in those cases which depend upon knowledge of the scientific effect of medicine, the results of surgery, or whether the attending physician exercised the ordinary care, skill and knowledge required of doctors in the community which he serves, must ordinarily be established by the testimony of physicians and surgeons.' However, '* * * when facts may be ascertained by the ordinary use of the senses of lay witnesses, it is not necessary that expert testimony be produced * * *.' This § the recognized rule in this state ² and applies to chiropractors and others treating human ailments ³ as well as physicians and surgeons.

In the Fredrickson case the proof indicated that the doctor in closing a tonsillectomy incision failed to remove gauze and other operation materials. There, we held that expert testimony was unnecessary to show negligent malpractice, because lay people as well as experts know that the medical standards of care were violated.

Here, we have two problems: 1) Does the evidence reasonably support a finding that Dr. Olsen so violently jerked plaintiff's head and neck in treating her for low back pains that he ruptured her fifth and sixth cervical discs? 2) Does such evidence reasonably support a finding of negligent malpractice without expert testimony that such a violent jerk ruptured the discs and is not the standard of chiropractic treatment in this vicinity? We reverse a nonsuit judgment if there is a reasonable basis in the evidence and the inferences therefrom when considered in the light most favorable to the losing party for a judgment in her favor. ⁴

1) The evidence reasonably supports a finding that the violent jerk by Dr. Olsen of plaintiff's head and neck ruptured her fifth and sixth cervical discs, thereby causing the injuries complained of. Following is a review of plaintiff's evidence.

On Sunday, June 11, 1961, Mrs. Malmstrom, accompanied by her husband, was treated by Dr. Olsen for low back pains which had bothered her for a number of years. However, she had suffered no previous pains in her neck. She disclosed these facts to Dr. Olsen and told him that he was recommended by Dr. Poulter, on Ogden chiropractor who had previously treated her and taken x-rays which he would make available to Dr. Olsen. Olsen thereupon stated he would call Dr. Poulter.

Dr. Olsen placed her on her abdomen, turned her head to one side and felt her spine. He then, with both hands on her head and neck, very violently and roughly gave her a jerk, causing severe pains in her neck; and she shouted, 'ouch.' After making an appointment for the next day, she and her husband left. She continued to suffer with very severe pains in her neck, more violent and severe than she had ever had before. On the road home she disclosed the severe pains to her husband. The next day when they visited Dr. Olsen, her husband told Dr. Olsen of the servere pains he had caused her; and Dr. Olsen said, 'I can fix that.' He then again placed her on her abdomen and again severely jerked her head and neck, causing almost unendurable pain. Thereafter they agreed to return for further treatments the next Wednesday. They did not keep this last appointment because of her severe pain.

Mrs. Malmstrom claims that she had received chiropractic treatments for these low back pains from Dr. Poulter of Ogden and Dr. Kesler of Salt Lake City, and a California chiropractor, but none of them jerked her head nearly so violently as Dr. Olsen; and she suffered no pains from other treatments. She also testified that prior to Dr. Olsen's treatments she had never had any such pains in her neck.

The next Friday, after the Olsen treatments, plaintiff with her husband left in their car on a trip to San Francisco. She was still suffering severe pains in her neck, and she could not drive the car more than 15 minutes at a time. It was very hard to get comfort either sitting up or lying down, and sleep was very difficult. They returned from San Francisco in about nine days.

On their return the pains were getting worse and were going into her arms and hands. She consulted their family physician, and he treated her for three days, July 10, 11 and 12, 1961, with a diathermy machine; but things continued to get worse, so the family physician called Dr. Bauman, an orthopedic specialist who deals with joins and bones. She visited him that day at his office. He first gave her pills and a cervical collar and had her sleep in traction with a weight pulling on her head. He then sent her to the L.D.S. Hospital for seven days. But her pains continued to get worse. She could hardly use her arms or hands, so that her daughter had to comb her hair. It was very difficult for plaintiff to do her work at the L.D.S. Hospital, where she was employed as a surgery nurse. She then went home for a couple of days, and then, on Dr. Bauman's suggestion, she consulted Dr. Bernson, a neurosurgeon, who examined her and sent her back to the L.D.S. Hospital.

At the hospital she was embarrassed and hesitated to tell Dr. Bauman and Dr. Bernson and the other people at the hospital about the chiropractic treatments. When she told the doctors, they advised her that she need not mention these treatments to other people or the intern who examined her. So her hospital record makes no mention of such treatments, but states that she knew of no slip or jerk in her neck.

At the hospital Dr. Bernson and Dr. Bauman studied her condition took x-ray discograms of her neck, which means they inserted dye in the discs to cause them to show on the x-rays. They determined that the fifth and sixth cervical discs were ruptured. Two days later they operated on these discs, removing the ruptured parts and ingrafting bones. Thereafter, at first she improved and then she got worse. Another operation was made on March 12, 1962, replacing one of the previously replaced bones which had failed to fuse. Since then she is greatly improved. She can raise her arms, comb her hair and do her work at the hospital and at home without pain. She resumed her job at the L.D.S. Hospital on July 23, 1962, where she has continued to be employed.

Both Dr. Bernson and Dr. Bauman gave their opinion, based on her case history that she had no previous neck pains, and their observations of the ruptured discs that these ruptures were of recent origin, and that they were caused by the violent jerks of her head and neck by Dr. Olsen. However, the court refused to allow these doctors to give their opinion on whether Dr. Olsen's treatments violated the chiropractic standards of care in this vicinity, because they are not qualified chiropractors. The evidence does definitely show that she had no previous pain in her neck or the cervical joints thereof; that the pains were in her lower back; that she had previously had chiropractic treatments for such pains, but none of the previous chiropractic treatments had hurt her neck. Also, her testimony was that Dr. Olsen's treatments consisted of much more violent and severe jerks of her neck and head than the other chiropractic treatments she had taken, and that the pains immediately produced were very severe and constantly got worse until after the operations. From this evidence a jury could reasonably find that Dr. Olsen had so violently ierked her head and neck as to cause the ruptures in her cervical discs.

2) The evidence would reasonably support a finding of negligent malpractice against Dr. Olsen, in that this violent rupturing jerk violated the standards of chiropractic care in this vicinity.

Here, as in the Fredrickson case, any lay person would know without expert testimony that a chiropractor who so violently jerked his patient's head and neck, which had prior thereto been without pain, as to cause a rupture of the cervical discs and almost completely incapacitate her in a short time would not be using the standards of care required for chiropractors in this vicinity. This is especially true in view of the fact that for a number of years the plaintiff had been taking chiropractic treatments from other chiropractors, but none of them had had any trouble in avoiding rupturing her cervical discs. Such a showing would reasonably support...