The plaintiff, while carrying a heavy timber in July, 1933, slipped and fell, striking his left hip. He says the pains from the injury were severe. He went to his family physician, but on August 5 or 6, 1933, on recommendation of a friend, changed to Dr. A.B. Kesler, a chiropractor, who was licensed by the state of Utah to treat human ailments without the use of drugs and without operative surgery. The defendant and his witnesses no better described chiropractic *Page 343 than is set forth in the case of People v. Love, 298 Ill. 304,131 N.E. 809, 810, 16 A.L.R. 703, which I now quote:
"Chiropractic is a drugless method of treating ailments of the human body, chiefly by manipulations of the spinal column with the hand. The theory of this system, as explained in this record, is that, when the spinal column is in all its parts in place and performing its proper functions, and the nerves running therefrom to the various organs and parts of the body are undisturbed and performing their functions, many, but not all, of the ills to which the human body is susceptible do not and cannot take place. To state it differently and more understandingly, the theory of this science is that, if any of the vertebrae of the spine are seriously affected or partially dislocated, such affections or subluxations generally cause disturbances in various organs and parts of the body by reason of the fact that the nerves coming from the part of the spinal column affected or partially dislocated are impinged upon or pinched, and cannot by reason thereof perform their proper functions. It is claimed by the advocates of this system that these disturbances or bodily ills can be, and are many times, completely cured by the chiropractor by manipulating the spine with the hand and thereby removing the seat of the trouble. It is not claimed that all ills and diseases of the human body can be cured by this science or relieved, but that such ills and diseases as are caused by injuries and subluxations of the spinal column may be thus relieved and cured."
Plaintiff says that the pains became more severe and even intense when defendant gave him a first treatment about August 5, 1933. Some time in December following and during the continuous course of chiropractic treatments administered by Dr. Kesler, a small lump appeared on the left hip. Plaintiff says it was about two weeks before Christmas. Defendant says December 9th. Plaintiff says Kesler told him two or three times that he was suffering from rheumatism and when the lump appeared that it was a mere boil and not to worry, "that he would tell me when it was ripe, and that I could stick it with a pin or take a razor blade and cut it, or it would break while I was in bed at night"; that after it broke, Kesler told him not to worry about it and it would heal up in two or three weeks' time and "that the pus had to come out of my system before it could get well." Kesler *Page 344 also told him to wash it with lysol; that on April 14th, he asked Kesler whether he did not think it more than a boil and was afraid it might be cancer, but Dr. Kesler again assured him not to worry, he was too young for that, whereupon he went to Dr. Sugden, a medical doctor. Kesler says when the lump appeared, he had a conversation with plaintiff who asked him what it was and, "I told him I didn't know; it resembled a boil; it might be a boil or it might be a carbuncle. It wasn't very large at that time, just making its appearance." He says plaintiff made no request that he do anything with reference to the lump; that he did not open or touch it, but told plaintiff "that was a field for medicine and he had better consult Dr. Martin, his family physician, about it." He told plaintiff to keep it clean if he was not going to his medical doctor with it and that plaintiff or some one else, but not he, put a gauze over it.
The lump came to a head and broke in about a week after it was noticeable. The defendant treated plaintiff up to April 14, 1934. During this time the hole grew from the size of a pinhole when it first broke to a size as big as a dollar. Dr. Kesler saw it three or four times a week as it was growing larger.
This gives in the main the evidence by plaintiff and defendant relating to the alleged diagnosis of the lump. I shall refer to the conflict in this evidence presently. The gist of the complaint is as follows:
"Defendant * * * failed to carefully, skillfully and properly diagnose and analyze plaintiff's injury and illness, but informed plaintiff that the pain he was suffering in his hip was merely rheumatism and caused by the plaintiff's spinal column being out of alignment * * * informed the plaintiff that he had a mere boil on his hip which would pass away upon being opened by plaintiff."
Also that
"defendant negligently * * * failed to prescribe a proper treatment for plaintiff in view of plaintiff's injury and illness, but adjusted plaintiff's spine over a period of approximately eight months for *Page 345 another and different illness which plaintiff did not have and from which he was not suffering, to-wit, rheumatism."
The main questions arising in this case appear to me to be as follows: (1)(a) Does a chiropractor by the very act of practicing his profession hold himself out as one who will diagnose ailments and does he by virtue of his very practice of chiropractic become responsible for diagnosis of ailments, or (b) by the fact of his practicing his profession does he only hold himself out as one who, by the technique known as palpation, is able to "analyze" the spine to determine whether there are some partial dislocations of the segments or vertebrae of the spine?
(2) If the answer to (1)(a) is in the negative, did Dr. Kesler step out of his field and actually diagnose this lump as a boil?
(3) If he did, may experts from the allopathic field of medicine testify as to whether such diagnosis was correct or whether the pronouncement from the diagnosis was, under the circumstances, such as one should expect from a person on whom the duty to diagnose devolved in view of the present state of pathological knowledge?
(4) Is there any duty on the part of a chiropractor to prescribe for ailments beyond that of treating them in the recognized way which a chiropractor treats all diseases, i.e., by adjustments and reducing the dislocations of vertebrae?
(5) If so, did defendant fail to prescribe a proper treatment in this case?
(6) Was the verdict in this case excessive in that the jury visited upon defendant compensation not only for results of his negligence, but for the results of the accident itself?
I shall consider the questions seriatim. As to the first: The statutes present one of those legislative monstrosities resulting from an attempt to satisfy two or more contending groups. In this case it appears as if the Legislature had attempted to pass a law which the allopath could contend *Page 346 implied that the chiropractor was required to diagnose disease in the manner as required by the allopath and at the same time the chiropractor or other drugless healer could say implied that he was only required to treat the disease, whatever it might be, according to the method which he claimed would cure all diseases or all ailments outside of a certain excluded few. The main object seemed to be to appear to intend something without saying it was intended, thus placating each contending group. In this condition is the law served to us for interpretation. The statute defines chiropractic as "the science of palpating and adjusting the articulation of the spinal column by the hands only." True, the examinations to obtain a license as a chiropractor include all the subjects required for the practice of medicine and surgery in all its branches except certain named subjects. This means that the applicant for a license to practice chiropractic must take an examination in symptomatology. But I do not think it can be deduced from this fact that "one who has a license for and holds himself out as a chiropractor, holds himself out as one qualified to treat human ailments with all the qualifications of one holding a license to practice medicine in all its branches, excepting therefrom materia medica, therapeutics, surgery, obstetrics, and theory and practice." In the light of the definition of chiropractic, I do not think this can be so. The law may have required the chiropractor to gain information in symptomatology in order that he might know whether a person suffered from those diseases which manipulation of the spine might aggravate, and perhaps in order to make the requirements of practice stricter so as to cull out a certain number of incompetents and opportunists. In general medicine, every treatment differs according to the ailment found. Therefore, special affirmative diagnosis becomes not only important but indispensable.
In chiropractic, however, it is the theory that all except certain types of bodily disorders are due to an interruption of the flow of nerve force into a particular region, because *Page 347 of impingement on a certain portion of the spinal cord by dislocation of vertebrae. However inadequate this may seem as an explanation of many or any of the bodily ailments, it is recognized by statute. The statute says,
"Chiropractic is defined as the science of palpating and adjusting the articulation of the spinal column by hands only."
It is true that no school of chiropractic is set aside by the statute except as it can be implied by the above definition and it is classed under general classification of the practice of medicine without the use of drugs or surgery, but I hardly think it can be said that the statute does not recognize such a school. The law recognizes not only what is expressly set out by statute, but what is contained in the word and definition of chiropractic. In many cases in the law it is required by definition to fill in the content of a word or words used by the statute. So, I think under the present state of the statutes there is recognized a school which does not pretend to infer or deduce from particular symptoms what disease or ailment the patient has, because it claims to cut under all those relationships between symptoms and ailments and to remove what it caims to be the cause of all of them. Thus, I suppose, tuberculosis, rheumatism in its many forms, and many other diseases would be claimed to be due to maladjustment of the vertebrae. And it seems to me that any person who engages a chiropractor, knowing him to be such, is presumed to know to whom he is going and what his theory is. Certainly, the public must assume some responsibility when it goes to naturopaths, osteopathists, chiropractors, etc.
The theory in which the chiropractor works is fairly common knowledge and, if not, a person who blindly patronizes a special school without knowing how far it professes to go, what its theory of treatment is, cannot be heard to say that he thought and expected it would perform outside of that field. As well might one claim he expected a Christian Science practitioner to prescribe drugs or surgery or diagnose *Page 348 his ailment. All the law does is to protect a patron or patient by requiring a certain modicum of skill by the practitioner in the special field which he operates or else forbids him from practicing altogether if the law deems that the welfare of the public requires that the members of such school be not permitted to perform on the public. It was stated in People v. Love, supra, that:
"It is not the province of the courts to extol or belittle chiropractic, osteopathy, or medicine and surgery. They are all now established as useful professions, and as time has progressed it has been thoroughly demonstrated that all of them have accomplished, and are daily accomplishing, the relief and cure of human ailments."
It seems to me that to hold the chiropractor responsible for diagnosis in the sense which that word is used by the medical profession, that is, require him to conclude what ailment the patient is suffering from, which inevitably leads to the requirement of its corollary, that he use the skill in such diagnosis which is required of the average practitioner of medicine in that locality, would be to require something which the statutes by implication do not demand and to mistake the nature of the philosophy of chiropractic.
Section 79-9-17, R.S. 1933, states:
"Any person who shall diagnose, treat or profess to treat, or prescribe or advise for, any physical or mental ailment of, or any physical injury to, or any deformity of, another; or who shall operate upon another for any ailment, injury or deformity, shall be regarded as practicing medicine or treating human ailments."
But the reverse cannot be implied from this section: That any one who treats human ailments has the duty of diagnosing as that term is understood in general medicine. This section was a catchall in order to prevent unlicensed persons from actually practicing medicine or treating human ailments. Subsection (15) of section 79-9-18, R.S. 1933, defining one type of unprofessional conduct, reads as follows: *Page 349
"(15) Advertising or professing publicly to treat human ailments under a system or school of treatment or practice other than that for which he holds a license."
Section 79-9-21, R.S. 1933, reads as follows:
"Any person, other than one licensed to practice medicine and surgery in all branches thereof, holding himself out as a physician or practitioner without indicating the school or system of healing in which he is licensed to practice is guilty of a misdemeanor."
It would seem as if these sections did recognize schools within the general field of treating human ailments without drugs or surgery.
It seems to me that these very sections were to require one not licensed to practice medicine and surgery to notify the public that he was limited to the field of special treatment and circumscribed diagnosis, called by the chiropractor "analysis." If the defendant held himself out as more than such special practitioner, the public might rely on an ability and a duty to diagnose. And we might inquire what would have been the effect if the defendant had diagnosed the ailment as osteomyelitis? Would he have quit treating the patient? Not if he stuck to his thesis that removing the impingement on the nerve would open up the channel for the flow of vital nerve force necessary to rebuild the part. I am of the opinion that, as said in the case ofNelson v. Dahl, 174 Minn. 574, 219 N.W. 941, 942:
"When a patient selects one of the several recognized schools of treatment, he thereby adopts and accepts the kind of treatment common to that school; and the care, skill, and diligence with which he is treated, when that becomes a question in the courts of this state, must be tested by the evidence of those who are trained and skilled in that particular school of treatment."
And whatever ailment he may suffer from, if among those which such school claims it can aid or cure, he places himself at the mercy of the treatment accorded by such school of practice. If it is unscientific or inadequate or bears no *Page 350 relationship to a cure, the patient has his own judgment to blame. The law cannot give the members of the public intelligence or protect them against all the results of poor judgment or ignorance. If the law permits a school for treating human ailments to flourish, it can only require those who belong to it to use the technique of that school as skillfully as the average practitioner of such school performs with it. I think, therefore, that the answer to question (1)(a) must be in the negative; that is, that a chiropractor does not by the very act of his profession become responsible for the diagnosing of ailments in the sense that a doctor does in the regular school.
I next take up the second question: "Did Dr. Kesler step out of his field and actually diagnose this lump as a boil?" A few preliminary observations: It may be well to be realistic about this matter. Usually a patient coming to any practitioner, whether a general medical man or chiropractor, states how he feels and what his symptoms are. If the chiropractor takes upon himself to state what disease he has in terms of general medical science, he is diagnosing. If he takes tests for specific ailments or makes urine analyses which are only consistent with an attempt to know specifically what the patient is suffering from, he may be in the field of diagnosis. When the patient tells him how he feels and he makes the examination of the spine and concludes there is a subluxation, he is limited to treating such maladjustment in the manner and with the skill that may be reasonably expected of a competent chiropractor in this locality. If he designs to name the ailment he is diagnosing. But if the ailment is not named nor any specific test to ascertain it is made, but only palpation, the patient submits himself to the chiropractic's theory of treatment and cannot complain if it fails to cure him or makes him worse. He takes that chance just as he does if he depends on a masseur to give him relief.
I now return to the specific case at hand. I have outlined the testimony of plaintiff and defendant as to what was *Page 351 said regarding the lump. The jury, as was its duty, apparently decided that the defendant did denominate the lump as a boil. I can appreciate that if this lump had been totally unconnected with the condition for which plaintiff was being treated by Dr. Kesler, the latter's statement that it was a mere boil might have been just as gratuitous as if a chiropodist or masseur had volunteered that it was a boil. But here the lump was directly connected with the injury to the hip which was what Kesler was treating the plaintiff for. A diagnosis does not have to pass through a complicated preliminary process of examination and inquiry. One who is treating a patient for a certain condition who volunteers that a lump which it is later discovered is directly the result of an injury, is only a boil, has passed professionally and not as a mere volunteer on the nature of the symptom. He has therefore diagnosed the ailment. And, having assumed to diagnose the ailment, he is charged with the same duty in reference thereto as is a physician of the regular school, and, if through ignorance, below the standard required, or because of carelessness he misjudges the cause of the symptom, when he should have known the natural processes which had been or were producing it, he is guilty of negligence. The jury believed that defendant, in the course of his professional treatment of plaintiff, failed through ignorance, when he had the duty of knowing, to properly diagnose or call the true nature of the lump. While it might be that when the lump first appeared, a failure to recognize its true nature might be excusable, but, when the cavity grew in size over four months, the jury might well conclude from the evidence of the witnesses for the plaintiff that there was negligence in failing to properly recognize it.
I shall consider in a moment whether those witnesses were qualified to give opinions as to what should be expected in the way of diagnosis of one upon whom the duty to diagnose devolved. Before I come to that, which is the third question above propounded, I shall again consider whether plaintiff can complain, if, as before stated, he put himself into a *Page 352 chiropractor's hands for treatment according to that school regardless of what was causing his condition. The answer is that while plaintiff, who was suffering pain, put himself in the practitioner's hands for relief of that condition, he had a right, when asking concerning a specific symptom connected with the condition he was being treated for, to receive word either that the chiropractor did not know or that he refused to give an opinion or render a judgment, or if he did denominate it by name, that such name was the result of a conclusion based on proper care and skill in diagnosis. When a chiropractor who is licensed to treat human ailments in a certain way, without naming the ailment or without specifying what a symptom denotes or without designating a condition or its manifestations, all of which the law seems to permit, departs from this field of palpation and adjustment and deigns to give to a patient information as to the nature of his ailment, the meaning of a symptom, or interpret a condition or symptom in terms used by the general school of medicine, he then knows or should know that his patient has the right to guide his future conduct by such advice, information, or interpretation, and that such patient may or may not desire to remain with his treatment. He therefore has the duty to use such skill in the ascertainment of the information or in coming to an opinion or in the giving of advice in reference to such ailment, symptom, or condition as has the person who is licensed to practice medicine in all its branches. Not an answer is it to say that the patient might or most likely would not have changed his course of action. If he ventures the advice or information, he must give the patient the opportunity to exercise a choice on the kind of information or advice it is his duty to furnish.
The answer to question (3) is, in the light of the answer to question (2), simple. A distinction must be made between what the chiropractor calls palpation — his peculiar "analysis" or "diagnosis" — and the diagnosis of the medical doctor, and between these two and treatment or "adjustment" *Page 353 of the chiropractor. If the question was as to whether the defendant had made such palpation or given such chiropractic treatment as one was entitled to expect from the reasonably skillful chiropractor in this locality in view of the advances, if any, in the technique, the defendant would be correct in his contentions. But when he steps out of his field and diagnoses in the fashion of the medical man, then the medical man may be called in to testify as to whether under the circumstances the diagnosis was of the sort which met the requirements of the standard of diagnosis of the medical profession in that locality. And they certainly may testify, if qualified, as to the effect on plaintiff of a delayed correct diagnosis. The authorities cited by plaintiff and defendant are not in conflict on this point. It is that some of those which defendant cites to uphold his point that a medical man cannot testify in a chiropractic case, are as to treatment and not as to a medical diagnosis.
The answer to question (4) is already apparent from what has been said heretofore. If the chiropractor sticks to his last and does not diagnose beyond palpation and does not go beyond his field, the patient knows or should know that he prescribes for every ailment which chiropractors claim to be able to cure, only the adjustments to be made on the spine. The gravamen of the charge in this case is failure skillfully and carefully to diagnose after he entered the field of telling plaintiff what the lump was on his hip. It was not that defendant "negligently and carelessly failed to prescribe a proper treatment." If this were so, every chiropractor might be sued out of business whenever a doctor of the regular school testified that chiropractic was not the proper treatment. I have but little doubt that there are ailments which chiropractic should not treat, but if a patient is willing to trust himself to the chiropractor without obtaining from a medical doctor definite diagnosis of what ails him, it is the patient's, not the law's nor the chiropractor's responsibility. This is, of course, subject to what has above been said that if the chiropractor does deign to tell what the ailment is, *Page 354 he then becomes responsible for a skillful and careful diagnosis and for damages for injuries which may result from the absence of application of such skill and care.
The answer to question (5) depends on whether the school of chiropractic purports to treat osteomyelitis by "adjustments." If not, the defendant did not prescribe proper treatment from the chiropractic point of view. If the school does recognize osteomyelitis as amenable to chiropractic treatment, then he would have been prescribing proper treatment from the viewpoint of the chiropractor. There is no evidence in the record as to whether the school claims that its treatments will cure this ailment.
As to question (6): Certainly, the size of the verdict must ordinarily be left to the jury, but in this case there seems to be some merit to the contention that the jury may have visited upon the doctor compensation for the injury due to the fall rather than the damage which plaintiff suffered by reason of the delayed correct diagnosis. The court's instruction No. 11 would give the jury cause for so finding. Of course, if, after the time when the nature of the disease should reasonably have been discovered by one required to make a careful diagnosis, the impairment increased by virtue of the widening bone region affected so as to make what would have been confined to an affectation of a small area, into a much wider area, the verdict may reflect the damage resulting from such failure to discover the true nature of the disease. But from instruction No. 11 we do not know that. As hereunder pointed out we have evidence to the effect that the point at which a proper diagnosis could have been expected to reveal the real nature of the ailment was when the lump first appeared. As said previously, the defendant would not in any case be liable for any impairment which happened before he stated the lump was a boil, if osteomyelitis was within the realm of those diseases which chiropractic holds are amenable to spinal adjustments. This topic is related to the court's instruction No. 11 which is hereunder considered. *Page 355
As to instructions: From what has been said above, it follows that defendant's requested instructions 2 and 9 might have been proper if the action were based on failure properly to treat. From what has been said in answer to question (2) the action was based upon failure carefully to diagnose when he purported to diagnose. The court's instruction 5 covers this point. The word "assume" used in the instruction and criticized by defendant must be given the meaning which fits the very act which plaintiff testified that the defendant did and which apparently was believed by the jury. I think there was no error in refusing to give defendant's requested instructions Nos. 5 and 7. The first was covered by the court's instructions. The second was based on the assumption that the evidence shows contributory negligence. I think not. The court's instruction No. 6 was not erroneous. There was no evidence to the contrary that the so-called "boil" was a symptom of osteomyelitis. It followed inevitably from the evidence that if the jury found that the defendant had stated the lump to be "a mere boil" — thus purporting to diagnose — and the jury further found that he should have known on careful diagnosis that it was not a boil, it should find for plaintiff, provided that it came to the conclusion that the plaintiff was injured by the diagnosis as a boil, which last should perhaps be in the instruction.
I think the court's 8th instruction erroneous, because it states that defendant may have lulled plaintiff into security for a period of approximately six months into believing the ailment a mere boil. The evidence is that the lump first made its appearance not before December 9th and on April 14th plaintiff went to Dr. Sugden. The period could not have been over four months. I think the court's instruction No. 11 erroneous as a whole. It reads as follows:
"11. You are instructed that if you find from the evidence that the infection in plaintiff's hip bone would likely have been completely eradicated therefrom provided the same had been observed by defendant at the time when the same commenced or soon thereafter, *Page 356 and that by allowing the infectious condition to remain in the hip bone for a period of approximately six to seven months after the said infection had commenced the same spread over a greater portion of the hip bone so that eradication thereof became impossible, then you shall find that plaintiff has suffered damage and injury because of the failure of the defendant to so observe the infection."
It is predicated on the theory that it was the duty of defendant to observe the infection "at the time it commenced or soon thereafter," when there was no such duty visited upon the defendant until December 9th, at which time he mistakenly informed plaintiff it was a boil. From the time of the injury before August 5th until the lump came into evidence on December 9th, the infection was going on. The so-called "boil" appeared when the infection had worked its way through the flesh and made an exit. Dr. Sugden testified it would be difficult to diagnose osteomyelitis in its early stages. Dr. Holbrook testified that the first time you could be sure to say you had osteomyelitis is when the little lump began to appear. Both of these witnesses were for the respondent. There is no contrary testimony. The instruction further assumes that the jury may, from the evidence, find that the defendant was guilty of allowing the infection to remain in the hip bone from six to seven months, whereby plaintiff may have been prevented from completely eradicating it. The evidence, as stated above, was that the defendant could not be held for more than about four months. This instruction No. 11 is bad as a whole. An exception was taken to the giving of instructions Nos. 5, 6, 7, 8, 10, and 11, without specifying parts of any. This would mean that we must find any one of them bad as a whole. I do not think we are required to find every one of the whole group bad as a whole. I see no use in a litigant being required to lengthen the record by setting out in separate sentences his exception to the whole of each instruction. I think the giving of instruction No. 11, as a whole, was prejudicial error, because the jury might well have concluded that *Page 357 the defendant had the duty to discover the infection at the time when the infection in the hip bone commenced or soon thereafter. No medical doctor may have been able to do that.
For the reasons stated, I think the judgment of the lower court should be reversed and the cause remanded to the district court of Salt Lake county with instructions to grant a new trial.