This case has probably produced in the minds of the individual members of this Court less degree of satisfaction in the composite judgment of the Court as expressed in any of the three conclusions reached than any case which it has been the duty of the Court to consider in many years.
That state of mental perturbation doubtless arises primarily from the inadequate knowledge which until the present time exists concerning human life and its dependence upon the orderly functioning of the great number of organs, nerves, bloodvessels, tissues and cells of the human body and their relation to one another, and the failure of the evidence in the case to reveal with sufficient clearness to a moral certainty the dependent relation of a tiny blood vessel in the upper frontal covering of the brain to the particular vertebral integer of the spinal column structure, which was involved in the "adjustment" attempted by the defendant practitioner to be made and which formed the basis of the action against him.
The cause of action as alleged in the declaration was stated by Mr. Justice BUFORD, in the opinion rendered on the 10th day of August, 1933. As stated in that opinion, Doctor Foster, as a doctor of chiropractic surgery undertook to attend, treat and care for Mrs. Thornton, who was suffering from certain disorders. *Page 63
The declaration alleged that his treatment of the patient was unskillful, careless and negligent, whereby she was fatally injured and was caused to suffer pain of body and mind from which injuries she languished and died.
There were three counts to the declaration. The second alleged that the doctor carelessly and negligently treated the patient and handled her so violently that he "ruptured a blood vessel in or leading to and supplying blood to the brain of the deceased, causing a hemorrhage from which the deceased, after severe and excruciating suffering, pain and anguish, died."
The third count alleged that: "the theory of chiropractors is that most, if not all, diseases come from pressure on the nerves caused by vertebrae deviating from the normal; that the chiropractor does not believe in the germ theory of diseases; that the treatment rendered by chiropractors consists in manipulating or adjusting the spinal column, so as to restore the vertebrae, which is considered to be out of alignment, to its proper place and to thus relieve the pressure on the nerves; that this is done by palpitating the spinous processes and forcing, pushing or manipulating the vertebrae into place; that the treatment consists entirely in manipulating the spinal column and attempting to adjust the vertebrae as above set forth." It is then alleged that Doctor Foster "so carelessly and negligently rendered such treatment and negligently used so much force and violence in attempting to adjust the vertebrae of the deceased's spinal column that he ruptured a blood vessel at or near the base of deceased's brain, causing a hemorrhage in or around her brain and spinal cord, from which the deceased, after severe and excruciating pain and anguish, died."
The essential allegations of the three counts here set out in full in the third opinion prepared and filed by this Court *Page 64 on December 6, 1934, to which the last petition for a rehearing submitted by the plaintiff in the trial court was addressed. As pointed out in that opinion, the trial was upon the plea of not guilty.
Mr. Justice BUFORD, in the first opinion, stated that the "science of chiropractic treatments is recognized as embracing a proper method for the treatment of many human ills and ailments." That treatment by such method for the cure of ills from which human beings suffer is recognized by the laws of the State and those who practice according to such science are required by law to obtain certificates and license to do so just as physicians of other schools of clinical surgery are required to do.
A verdict for the plaintiff was rendered on the trial of the case and judgment was duly entered.
The court in the first opinion, speaking through Mr. Justice BUFORD said: if a "patient dies while undergoing an operation by a surgeon, although the operation may be the immediate cause of death, is not of itself sufficient to prove that the surgeon was performing the operation in a careless, negligent or unskillful manner." In other words, the doctrine of res ipsaloquitur does not apply.
The doctrine thus announced in the first opinion was affirmed by the second opinion of this Court prepared and entered on February 9, 1934.
In the first opinion the view of the evidence was expressed that "Because of the lack of proof adduced from witnesses who could qualify as experts as to the proper and correct method of administering the adjustments involved in this case and that such adjustment was administered in a careless, negligent or unskillful manner, the judgment should be reversed."
On a petition for a rehearing granted on the application *Page 65 of Mr. Thornton, this Court, speaking through the writer of this opinion, expressed the view that "when circumstantial evidence is relied upon in a case like the one at bar to establish negligence on the part of a physician or surgeon in the administration of treatment to a patient whom the physician or surgeon has decided should be subjected to the particular treatment administered the circumstances should raise a fair presumption of negligence. * * * For the circumstances therefore to have any probative value as evidence of the principal question they must of necessity be not only consistent with the theory that the result inquired into flowed therefrom but inconsistent with any other result which might just as reasonably and logically be established by such circumstances."
In that decision the Court receded from its former conclusion and decided that the judgment should be affirmed. Now in that opinion we said that the jury had decided that Mrs. Thornton's death was caused by a ruptured blood vessel in the brain; that physicians and surgeons had testified that the rupture was caused by violence and the defendant, Mr. Foster, testified that the " 'adjustment' to which he submitted the patient, if properly made, could not have caused the rupture." We said that the cause of the rupture was evidenced by the fact that the "patient went to the doctor's rooms for a treatment like that which she had before received and while under the treatment suddenly suffered the shock which resulted in severe pain and subsequent unconsciousness."
The effect of the holding in the second opinion was that there was evidence that the rupture of the blood vessel was caused by violence and that violence occurred in the adjustment made or attempted to be made by Doctor Foster who said that the " 'adjustment' to which he submitted the *Page 66 patient, if properly made, could not have caused the rupture."
Now the point about which the Court is concerned after a third examination of the evidence is that the argument from the facts by which the jury arrived at its conclusion possesses no apparent cogency. In different words, the conclusion has no seeming connection with the premises. Any adjustment of a displaced vertebra is necessarily produced by violence in the broad sense of the exertion of any physical force considered with reference to its effect on another than the agent. See Webster's International Dictionary, 2nd Ed.
Where one or more vertebrae of the spinal column is, or are, out of alignment, deviating from the normal, the chiropractic science supports the theory that the vertebrae so out of alignment must by physical force exerted upon the affected region be pushed back into position, which as the third count of the declaration alleges is accomplished by "palpitating the spinous processes and forcing, pushing or manipulating the vertebrae into place." If properly made no rupture occurs, as the defendant said, but it does not follow that if the adjustment is improperly made that a rupture of a blood vessel in the brain results, nor does it follow that an adjustment improperly made necessarily implies an excessive use of physical force to the point of carelessness.
The third opinion, prepared by Mr. Justice WHITFIELD and filed December 6, 1934, contains a careful analysis of the evidence relating to the pathological condition from which Mrs. Thornton suffered for many years prior to the chiropractic treatment she received on January 22, 1932, and for two weeks following that treatment to the time of her death. That able discussion of the evidence, however, *Page 67 fails seemingly to have convinced all the members of the Court that the existence of the venal thrombus was the result either of a pachymeningitis condition of the dura mater, or a traumatic injury to the spinal cord, if such an injury could indeed produce the hemorrhage at the point on the side of the brain where the tear occurred according to Doctor Green. That eminent specialist said that the "rupture of a brain membrane and the incident tearing of the veins that followed and was caused by the twisting of a neck is a matter of increased pressure within the skull." He also said that twisting of the neck could have caused the venous hemorrhage discovered by him.
But it seems not to follow that if the twisting of the patient's neck constituted part of the process of "adjustment treatment" which was administered to her that such twisting of the neck constituted of itself a negligent, careless or unskillful act.
In a case involving such thorough knowledge of the human regional and pathological anatomy the technical rules of law by which the sufficiency of evidence as to ordinary or usual transactions between man and man is determined seem to be inadequate to enable one enquiring into the cause of a pathological condition of a person suffering pain to arrive at a conviction to moral certainty as to cause.
The Court therefore decided unanimously that the ends of justice will be best subserved by reinstating the first judgment of this Court which was a judgment of reversal and therefore remanded the cause to the Circuit Court for a new trial and have the issues resubmitted for reconsideration by another jury.
The effect of that judgment is that the trial court should have granted the motion for a new trial. The statute requires the Supreme Court on an appeal or writ of error to *Page 68 examine the record and to reverse or affirm the judgment or decree of the court below or to give such judgment, sentence or decree as the court below ought to have given or as it may appear according to law. Section 4637, C. G. L. 1927.
It has been the practice in this State in Chancery cases that where the testimony submitted to a Chancellor is not sufficient on some point to authorize a just decree in the cause and it clearly appears from the record that testimony does exist on such point sufficient to enable the court to make a just decree the cause will be remanded with directions to take further testimony on such point. See Morgan v. Dunwoody, 66 Fla. 522, 63 So.2d Rep. 905.
By parity of reasoning where in a case at law it appears that evidence is obtainable upon a highly technical point of physiology such as was involved in this case and the evidence submitted is not sufficient in its nature and character to produce a conviction to a moral certainty of the allegations of the declaration affecting the alleged cause of the injury and the ends of justice would be best subserved by a resubmission of the case to the jury, the rule followed in Chancery proceedings would be applicable.
There were one hundred and twenty-one assignments of error filed under the rule in the Circuit Court for Duval County which the plaintiff in error stated that he intended to present by the bill of exceptions as grounds for reversal of the judgment.
In the brief prepared in behalf of the plaintiff in error ten questions are stated to be involved. Eight of them relate to the character of evidence relied upon to recover damages in the case; one relates to the right of a husband to recover funeral expenses in an action for the wrongful death of his wife, and the other to the sufficiency of the *Page 69 evidence to show the life expectancy of the plaintiff's wife. So the scope of the injury as to the merits of the case was limited by the brief largely to a question of the sufficiency of the evidence to support the verdict.
On that question the members of the Court were equally divided upon the last consideration of the case on rehearing in so far as it may be said that the evidence submitted in the case answers the technical requirements of the rule under which the Court will not disturb a verdict if there appears to be substantial evidence to support it, but we reviewed the entire record including the charges of the Court, the admission of hypothetical questions, and the effect of the evidence of a certain expert witness who said a very slight force, however gently and scientifically applied, might result in the injury to the brain from which it is alleged that Mrs. Thornton died, and we concluded that the inspection of the entire record led the Court to the conviction that justice would best be subserved by ordering a new trial of the case.
WHITFIELD, C. J., and BROWN, BUFORD, and DAVIS, J. J., concur.
ON PETITION FOR FURTHER REHEARING.