Kuechler v. Volgmann

Vinje, C. J. The trial court sustained the demurrer on the ground that, the complaint having alleged that defendant treated the plaintiff according to the methods used by memr bers of defendant’s profession, namely by chiropractors,- it negatived negligence and lack of skill, since the rule is that a physician is required to exercise only'that degree of care, diligence, judgment, and skill which other physicians of good standing of the same school or system of practice usually exercise in the same or similar localities under like or similar circumstances, having due regard to the advanced state of the medical profession at the time in question, citing Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228; Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111; Marchand v. Bellin, 158 Wis. 184, 147 N. W. 1033 ; Hrubes v. Faber, 163 Wis. 89, 157 N. W. 519; Jaeger v. Stratton, 170 Wis. 579, 176 N. W. 61. Such is undoubtedly the rule of law in this state, and were the complaint grounded upon a lack of skill, care, or of negligence in treatment only, the trial court came to the right conclusion. But we construe the gravamen of the complaint to charge a lack of skill and care in diagnosis, in the failure of defendant to- discover the nature of the ailment from which plaintiff suffered. Malpractice may consist in a lack of skill or care in diagnosis as well as in [243] treatment. Jaeger v. Stratton, 170 Wis. 579, 176 N. W. 61. A woman may be in the early stages of pregnancy. A doctor may diagnose it as an ovarian tumor and operate. There may be no lack of skill or care in the operation, but there may be in the diagnosis. It is a familiar principle that a complaint must be liberally construed in favor of the pleader. By examining the complaint set out in the statement of facts it will be found that the pleader says that through a lack of skill and care the defendant negligently undertook to treat plaintiff for a malady from which he was not suffering, and that had the defendant possessed ordinary skill or ability in treating disease he would by the exercise of ordinary care have known the true cause of his ailment. The complaint also alleges that plaintiff “is informed and believes that if the said defendant had used ordinary care and skill in diagnosing the affliction of the plaintiff he would have known by the use of such ordinary care that the said plaintiff was afflicted with tumor and that an operation upon the plaintiff at the time when the plaintiff first consulted the defendant would have effected an immediate and permanent cure.” 'This expressly charges lack of care and skill in diagnosis with resultant damages. That chiropractors, who by the provisions of sec. 1435e, Stats., are permitted to practice without a license in this state, are required to exercise care and skill in diagnosis, if they undertake to diagnose, there can be no doubt. Sec. 1435i directly so provides and makes them liable for malpractice. So far as here applicable it reads: “Any person practicing medicine, surgery, osteopathy, or any other form or system of treating the afflicted without having a license or a certificate of registration authorizing him so to do, shall not be exempted from, but shall be liable to all the penalties ánd liabilities for malpractice; and ignorance on the part of any such person shall not lessen such liability for failing to perform or for negligently or unskil-fully performing or attempting to perform any duty as [244] sumed, and which is ordinarily performed by licensed medical or osteopathic physicians,' or practitioners of any other form or system of treating the afflicted.” It is clear from the allegations of the complaint that defendant undertook to diagnose as well as to treat the disease. Diagnosis is ordinarily assumed and performed by licensed medical or osteopathic physicians. But it may be assumed by others, and it is held that the practice of chiropractic is the practice of medicine. Comm. v. Zimmerman, 221 Mass. 184, 108 N. E. 893; State v. Barnes (S. C.) 112 S. E. 62. And the fact that chiropractors abstain from the use of words like diagnosis, treatment, or disease is immaterial. What they hold themselves out to do and what they do is to treat disease, and the substitution of words like analysis, palpation, and adjustment does not change the nature of their act. Comm. v. Zimmerman, 221 Mass. 184 (108 N. E. 893) and cases cited on page 189. Hence when the defendant assumed to perform that duty he must exercise the^care and skill in so doing that is usually exercised by a recognized school of the medical profession. Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228. This the complaint alleges he failed to do, and the demurrer admits the allegation. For these reasons we reach the conclusion that the trial court erred in sustaining the demurrer. By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer and for further proceedings according to law.