Whipple v. Grandchamp

• Decision Date: 14 October 1927
• Parties: WHIPPLE v. GRANDCHAMP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 40

158 N.E. 270

WHIPPLE

v.GRANDCHAMP.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 14, 1927.

Exceptions from Superior Court, Hampden County; Christopher T. Callahan, Judge.

Action of tort by Nancy Whipple against Ernest S. Grandchamp, to recover for injuries sustained in negligent adjustment or treatment by defendant as a chiropractor, Verdict for plaintiff, and defendant excepts. Exceptions sustained.M. L. Welcker and John D. Ross, both of Holyoke, for plaintiff.

A. T. Holmes, of La Crosse, Wis., for defendant.

PIERCE, J.

The plaintiff's amended declaration is, in substance, as follows:

‘* * * The defendant held himself out as competent to treat and cure her as a physician of the malady from which she was then suffering; that the defendant did undertake to treat and cure her said malady; and the plaintiff says that the defendant treated her in an unskillful, careless and negligent manner, whereby the plaintiff was seriously and permanently injured and was caused pain and suffering and anguish of body and mind, to the great damage of the plaintiff.’

The answer is a general denial. The jury returned a verdict for the plaintiff. At the close of the evidence the defendant moved in writing for a directed verdict upon the ground that upon all the evidence the plaintiff was not entitled to recover. This motion was denied and the defendant duly excepted.

In June or July and again in September, 1924, the plaintiff consulted the defendant, complaining of soreness and stiffness of the neck, pains in the back, dizziness, numbness in the limbs, noises in the head and buzzing in the ears. She ‘understood at that time that * * * [the defendant] was a chiropractor and that he was not a surgeon nor a medical man, just a chiropractor giving her treatments or adjustments.’ Subject to his exception the defendant answered ‘No’ to the question formulated by the presiding judge, ‘Were you lawfully authorized to practice medicine within this commonwealth and were you registered for such purpose?’ The judge stated, ‘That question and answer are admitted as one step of the plaintiff's offer to prove negligence.’

The defendant testified in part: ‘My business is chiropractor. * * * On the windows of my office and doors I have the letters ‘E. S. Grandchamp, Chiropractor,” and ‘have been engaged in the practice of chiropractice about three years' in Holyoke, Massachusetts. ‘I made a chiropractic examination of Mrs. Whipple. It consisted of a history of the case, palpation, the finding of the vertebra from the back of the skull to the diaphragm along the spine.’ After the examination the defendant explained to Mrs. Whipple the relation of the spine to the brain in great detail, and apparently with great care, that she should understand what was said. He further testified he then told her that, in order to secure the best results, there were three conditions on which he would insist before accepting the case, ‘first, steady and regular adjustments as * * * [he saw] fit to give, second, no medicine to be taken while under chiropractice adjustment without telling * * * [him], third, unless she was perfectly willing to give nature or the adjustments all the time required that she need not start taking adjustments,’ and ‘she consented to this.’

On Saturday night, September 13, 1924, in answer to a telephone call the defendant went to the home of Mrs. Whipple and after a conversation as to her condition said he would give her an ‘adjustment.’ By his direction she knelt on a pillow with her chest against another pillow on a chair and her head sideways, ‘that position rendering the spine in a horizontal position.’ Then the defendant ‘took his right hand over his left and held it an inch or two above her neck and came right down on her neck with all the heft he could put on it.’ On Saturday night, when the condition of the patient was not relieved, the defendant said ‘if we do not get results within twenty-four hours I would suggest for your own sake to see what a medical man or surgeon can do. Chiropractic will not relieve you.’ On Sunday morning the defendant, with the assent of Mrs. Whipple, went to the office of Dr. Genest and ‘asked him if he would come up and see the patient.’ Dr. Genest, in the presence of the defendant, after an examination to ascertain the trouble said the only thing to do in this case was to get an X-ray. He made an appointment at the City Hospital with Dr. Farr, a member of the hospital staff in the position of radiologist. Dr. Farr was dead at the time of the trial. Mrs. Whipple was X-rayed at the Holyoke City Hospital by Dr. Farr. After the X-ray was taken a plaster cast was put on her neck in the operating room of the hospital, and the defendant then drove her home.

[1][2] There was undisputed evidence that X-rays taken in the hospital laboratory, as these rays were, are considered hospital property; that they are not taken except on the order of the physician or surgeon; that the X-ray pictures themselves are indexed, and numbered as a part of the hospital records; that from the pictures the radiologist makes findings in writing, which are a part of the X-ray laboratory and held there as part of the records of the hospital. Subject to the exception of the defendant, which is not argued and therefore deemed waived, the judge admitted the report of the findings on the X-rays by Dr. Farr and the pictures, which together constitute the hospital record. The report is in these words:

‘Name, Whipple, Mrs. Nancy. Address, 3 Fairfield avenue. Part of body, cervical spine. Dr. Genest. Diagnosis, finding, fracture of the transverse process of the second cervical vertebrae of right side, with a very little bowing of same. Date, 9/14/24. Index number, 7845.’

It was agreed that Dr. Farr dictated the report to Miss Haggerty. It was in evidence, and not disputed, that one William O. Mulvenny who had been an X-ray technician close onto twenty years had been connected with the Holyoke City Hospital as such for two years. His work was to take pictures in connection with the radiologist, Dr. Farr. He identified the X-ray exhibits as pictures of Nancy Whipple taken by him for Dr. Farr in September, 1924. The evidence was relevant in support of the contention of an injury to or fracture of the second vertebra; and was admissible in evidence as a record of the hospital treatment and medical history of the Nancy Whipple case. G. L. c. 111, § 70; G. L. c. 233, § 79.

[3] It was decided in ...