Mostrom v. Pettibon

• Decision Date: 14 January 1980
• Docket Number: No. 3305-II,3305-II
• Citation: 25 Wn.App. 158,607 P.2d 864
• Parties: Gordon O. MOSTROM and Jeanne Mostrom, husband and wife, Appellants, v. Burl R. PETTIBON and "Jane Doe" Pettibon, Grover G. Pettibon and Jane Doe Pettibon, Brian Edward Long and Jane Doe Long, William P. Loomis and Jane Doe Loomis, and D. Daniel Ott and Jane Doe Ott, all husbands and wives, d/b/a Pettibon Chiropractic Clinic and Research Center, a Washington Corporation, Respondents.
• Court: Washington Court of Appeals

Page 158

25 Wn.App. 158

607 P.2d 864

Gordon O. MOSTROM and Jeanne Mostrom, husband and wife, Appellants, v. Burl R. PETTIBON and "Jane Doe" Pettibon, Grover G. Pettibon and Jane Doe Pettibon, Brian Edward Long and Jane Doe Long William P. Loomis and Jane Doe Loomis, and D. Daniel Ott and Jane Doe Ott, all husbands and wives, d/b/a Pettibon Chiropractic Clinic and Research Center, a Washington Corporation, Respondents.

No. 3305-II.

Court of Appeals of Washington, Division 2.

Jan. 14, 1980.

Paul J. Kleinwachter, Tacoma, for appellants.

James P. Moceri, Tacoma, for respondents.

SOULE, Judge.

Gordon Mostrom appeals from the Superior Court's award of summary judgment for defendants, practitioners of chiropractic medicine, in his action against them for malpractice. The issue is whether the court properly concluded the action as joined presented no genuine issues of fact to go to a jury. We hold that the case presents material issues of fact concerning viable theories of recovery, and we reverse.

The affidavits, depositions, and pleadings establish the following facts. In April of 1971, plaintiff was injured at work when struck in the back by a push cart. He stated he felt pain in his neck, back, and hips, radiating down his right leg. He visited Dr. Buel Sever, his family physician, for treatment on May 3, 1971. He had visited Dr. Sever in 1969 and in 1970 complaining of back pain, but no x-rays were taken and plaintiff had recovered with heat treatments. Dr. Sever's records showed that when plaintiff came in on May 3, 1971,

he felt like there was pain in his abdomen going through to his back and he said his muscles hurt all around from the abdomen through to his back and that he had some vomiting and appetite was kind of failing him.

He had no other complaints. Dr. Sever suspected an ulcer and ordered x-rays, an upper gastrointestinal series, which was done the next day. The x-rays showed a mild deformity of the duodenal cap, and Dr. Sever, diagnosing an "ulcer brewing," treated plaintiff with antacids and dietary instructions. Plaintiff's own recollection was that he saw Dr. Sever in May for back and leg pain due to the push cart accident, and that he got a heat treatment at that time.

In any event, on May 6, 1971, plaintiff saw Dr. Brian Long, a chiropractor associated with defendant Pettibon Clinic, complaining of lower back pain and weakness and numbness in the legs. After examining plaintiff and taking x-rays, Dr. Long diagnosed subluxation (dislocation) of the spine which he deemed amenable to chiropractic treatment. The symptoms included restricted lateral flexions of the neck; restricted extension and rotation of the neck; restricted lumbar flexions, front and in both lateral directions; electrical shocks in the extremities produced by full backward extension of the neck; the subluxations visible in the x-rays; and "advanced pathology of a chronic nature" visible in the x-ray of the cervical spine. On May 7, 1971, Dr. Long commenced chiropractic treatment by means of an "adjustment" of the neck by application of pressure. Plaintiff returned for eight more "adjustments" of the neck or back in May, nine more in June, and two in early July. On July 6, Dr. Long took an x-ray and pronounced the treatments successful, stating that plaintiff was free of pain.

On July 7, 1971, plaintiff was again injured at work when struck in the head by falling doors. He returned to Dr. Long on July 10 complaining of severe headaches, back pain, and more leg weakness and numbness. Dr. Long found "left spasms of the trapezius muscle; very restricted cervical motions; dull, constant pain exaggerated on extreme neck movements." He took more x-rays and diagnosed worsened subluxation of the neck vertebrae, a narrowing of the space between C-3 and C-4, and C-5 and C-6, and some large hypertrophic changes, i. e., osteophytic spurring, on C-3, C-4, C-5, and C-6. Dr. Long continued chiropractic treatment, including neck "adjustments," several times between July 10 and 23. Meanwhile, plaintiff returned to Dr. Sever on July 12, 1971, complaining of pain in the right knee and difficulty in walking. He did not complain of any other pain or report any injuries. Dr. Sever observed swelling in the knee and diagnosed rheumatoid arthritis.

On July 26, plaintiff came to Dr. Long's office on crutches, walking with difficulty and experiencing severe lower back pain. His right leg was losing strength. His neck was resubluxated, and Dr. Long adjusted it. Dr. Long also stated that he recommended that plaintiff consult a neurologist or orthopedist in case spinal cord injury was involved. Plaintiff denied that Dr. Long so recommended. Nevertheless, plaintiff went to see Dr. George Race, an internal medicine specialist on July 26. Dr. Race learned about the accidents at work in April and on July 7 and that plaintiff had been treated by Dr. Sever and the Pettibon clinic. Dr. Race examined plaintiff, who was walking awkwardly and staggering, and tentatively diagnosed an ulcer, arthritis of the spine, and possible spinal cord injury. He referred him to a neurologist, Dr. George Delyanis, who first saw him on August 13. Meanwhile, plaintiff continued to visit Dr. Long for treatments on July 28 and 30 and August 2, 5, and 10.

Dr. Delyanis diagnosed cervical (neck) cord compression and ordered a myelogram. The myelogram showed an obstruction of the spinal cord at the neck vertebrae C-4 and C-5. Plaintiff's condition continued to deteriorate. Dr. W. Ben Blackett performed surgery on August 19 to remove the extruded disc material that was found to be compressing the spinal cord.

Following surgery plaintiff did not recover full use of his arms and legs and was classified as totally and permanently disabled for purposes of carrying on any sort of work or productive function. He sued Dr. Long and the Pettibon Clinic for malpractice, claiming that the chiropractor should have recognized that his symptoms indicated a medical problem, that he should have been referred promptly to a medical doctor, and that the chiropractic treatment delayed medical treatment and, in fact, aggravated his condition.

In reviewing the summary judgment for defendants, we are mindful of the rule that a motion for summary judgment is to be granted when, construing the evidence in the record in favor of the nonmoving party, no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. E. G. Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974); Adamski v. Tacoma General Hospital, 20 Wash.App. 98, 103, 579 P.2d 970 (1978). The trial court must deny a motion for summary judgment if the record shows any reasonable hypothesis which entitles the nonmoving party to relief. Adamski v. Tacoma General Hospital, supra. CR 56(e) requires that affidavits submitted in support of or opposition to a motion for summary judgment set forth facts based upon personal knowledge admissible as evidence to which the affiant is competent to testify. However, evidence may be presented in affidavits by reference to other sworn statements in the record such as depositions and other affidavits. Meadows v. Grant's Auto Brokers, Inc., 71 Wash.2d 874, 878, 431 P.2d 216 (1967); Caldwell v. Yellow Cab Service, Inc., 2 Wash.App. 588, 592, 469 P.2d 218 (1970).

Chiropractors and other drugless healers who are licensed providers of primary patient care owe a duty to exercise reasonable care in the diagnosis and treatment of their patients and a duty to inform them when nonmedical treatment has become useless or harmful and medical treatment should be sought. Kelly v. Carroll, 36 Wash.2d 482, 492, 497, 219 P.2d 79, cert. denied 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 646 (1950); Annot., 58 A.L.R.3d 590, 591 (1974); Annot., 19 A.L.R.2d 1191-92 (1951). In determining whether a chiropractor breaches these duties, he is held to the standard of care of a reasonable chiropractor in the same circumstances. Carney v. Lydon, 36 Wash.2d 878, 880, 220 P.2d 894, 224 P.2d 634 (1950); 19 A.L.R.2d at 1192. See generally Hayes v. Hulswit, 73 Wash.2d 796, 797, 440 P.2d 849 (1968).

The trial court found that the facts supported a finding of no negligence as a matter of law inasmuch as plaintiff saw Dr. Sever once in early May and again on July 12, 1971, and it could not be said, therefore, that defendant's chiropractic treatment prevented or delayed him from receiving medical treatment.

Although the court's conclusion may be correct as far as it goes, it ignores the other possible breach of a duty imposed on chiropractors, i. e., the duty to use reasonable care in the course of treatment. This duty has three related aspects pertinent to this case: (1) to diagnose a medical problem as contrasted with a chiropractic problem; (2) to refrain from further chiropractic treatment when a reasonable chiropractor should be aware that the patient's condition is not amenable to chiropractic treatment and that continuation of such treatment may aggravate the condition; (3) to refer the patient to a medical doctor when a medical mode of treatment is indicated. See Carney v. Lydon, supra; Kelly v. Carroll, supra; Salazar v. Ehmann, 505 P.2d 387 (Colo.App.1972); Annot., 58 A.L.R.3d 590 (1974). A breach of duty, if it proximately caused plaintiff's permanent injury, could result in damages from the continued administration of chiropractic treatments, aside from any delay in obtaining medical treatments.

Chiropractic treatment is defined by statute as the treatment of subluxations of the spine by adjustment or manipulation of the vertebral column. RCW 18.25.005. See also State v. Wilson, 11 Wash.App. 916, 528 P.2d 279 (1974). It is clear that a chiropractor and other similar health care practitioners who depart from statutory limitations and practice medicine are liable for negligent treatment. E. g., Kelly v. Carroll, supra, 36 Wash.2d at 492, 219 P.2d 79; Faasch v. Karney, 145 Wash. 390, 260 P. 255...