Summary
In Green v. Rosenow, 63 Wis.2d 463, 470, 471, 217 N.W.2d 388 (1974) this court reaffirmed the holding of Casimere that "the law traditionally has permitted limited testimony of a medical nature by one not licensed as a medical doctor, if he is, in fact, qualified as an expert."
Summary of this case from Karl v. Employers Ins. of WausauOpinion
No. 327.
Argued April 3, 1974. —
Decided May 7, 1974.
APPEAL from a judgment of the county court of Rock county: MARK J. FARNUM, Judge. Affirmed.
For the appellants there was a brief by Wickhem, Consigny, Sedor, Andrews Hemming, S.C., of Janesville, and oral argument by John C. Wickhem.
For the respondents there was a brief and oral argument by Frank X. Kinast of Beloit.
Facts.
This action for personal injuries and property damage arises from an accident in Beloit on July 9, 1968. An automobile, driven by defendant Ernest Rosenow, rear-ended the automobile owned by plaintiff Orville Green, driven by plaintiff Iona Green, in which her fourteen-year-old daughter, Janice Green, was a passenger. Following the accident, plaintiffs Iona Green and Janice Green were examined by Dr. Robert Schwaegler at the emergency room of the Beloit Hospital and released. Both Iona Green and Janice Green subsequently consulted licensed chiropractor Curt Gonstead, who took X rays and administered a number of back adjustments. Prior to her discharge from the Gonstead clinic and about two years after the accident, Iona Green consulted her family physician, Dr. Gil Matthews, and was referred to orthopedic surgeon Dr. Allen Tuftee, who prescribed Equagesic and Anacin and instructed Mrs. Green to purchase an orthopedic box spring and mattress. Over objection, chiropractor Curt Gonstead was permitted to testify that he treated Janice Green in 1968, 1969 and 1970 for vertebral subluxation or misalignments in the neck which were causing impinged nerves, headaches and neck pain. Over objection, chiropractor Gonstead was permitted to testify that he treated Iona Green for a hyperextension-hyperflexion, commonly referred to as a whiplash, with displacement of the atlas, fifth and sixth vertebrae and displacement of the left ilium or hipbone.
Orthopedic surgeon Dr. Allen Tuftee first examined Iona Green on April 30, 1970, at which time she told him of the automobile accident and complained of pains in the neck and back. He saw her numerous times between September, 1970, and June, 1972. His diagnosis: A chronic lumbar and cervical strain with a minimal underlying osteoarthritis, particularly of the lumbar spine, the former a permanent condition resulting from the accident which will continue to cause pain and require medication in the future as well as permanently limiting physical activity. Orthopedic surgeon Dr. George Thomas testified for the defense that the cure for neck and back injuries is rest, not massage, and he found no subluxation (partial dislocation) of vertebrae indicated in X rays taken at the Gonstead clinic. Physician Dr. Robert Schwaegler, who examined Iona Green directly after the accident and on January 14, 1971, found muscular trauma at his first examination and referred her to her family physician for further problems. His diagnosis was that as a result of the accident Mrs. Green suffered a mild to moderate post-traumatic cervical myositis from which, in his opinion, she was fully recovered on April 15, 1969.
On June 27, 1972, jury trial commenced, resulting in jury awards of damages as follows: Orville Green — $2,468.32; Janice Green — $500; and Iona Green — $5,000. On November 8, 1972, following postverdict motions, judgment was entered for such amounts, plus costs and disbursements. Defendants appeal.
While the challenge is to the licensed chiropractor being permitted to testify in court as to diagnosis and treatment, we begin with the statutorily limited right of chiropractors to treat the sick in this state.
Treating the sick.
Sec. 448.02(1), Stats., prohibits any person from treating the sick who does not hold a license or certificate of registration from the state board of medical examiners "except as otherwise specifically provided by statute." Sec. 446.02(1) provides for "a license to practice chiropractic from the chiropractic examining board." This court has held that it ". . . necessarily follows that chiropractors so licensed are authorized to treat the sick" but "only to the extent authorized by their chiropractic license." Sec. 446.02, providing for the licensing of chiropractors, does not contain a definition of the word "chiropractic." However, this court has held that the legislature lodged the function of defining "chiropractic" with the chiropractic board of examiners by sec. 227.014(2)(a). This court held that the rules of the chiropractic examining board defining "chiropractic" and defining supplementary procedures did not exceed the bounds of correct interpretation and constituted a valid and applicable definition of what "chiropractic" means. With one modification, the rules referred to (CHIR 1.14 and 3.01) are unchanged since 1958, the year of the Grayson Case, and such rules, we hold, define the scope of permissible chiropractic practice in Wisconsin in treating the sick. Testifying in court. Prior to 1953, only persons violating the "treating the sick" statute were barred from testifying in court ". . . in a professional capacity as a medical or osteopathic physician or practitioner of any other form or system of treating the afflicted. . . ." Licensed chiropractors, not being barred from treating the sick in the field of chiropractics, were not barred from testifying in court as to their professional services. In 1953, the situation was legislatively changed by enactment of sec. 147.14(2)(a), Stats., which provided that "[n]o person without a license or certificate of registration from the state board of medical examiners shall have the right to testify in a professional capacity on a subject relating to medical treatment . . . ." (Now with slight modification, sec. 448.02(2)(a).) Chiropractors do not hold such license or certificate from such medical examining board and, thus, are not permitted to testify in a professional capacity under sub. (2) (a). However, also in 1953, the legislature enacted sec. 147.14(2)(b), providing: "A court may permit any person to testify as an expert on a medical subject in any action or judicial proceeding where proof is offered satisfactory to the court that such person is qualified as such expert." (Now sec. 448.02(2)(b).)We hold that, under sec. 448.02(2)(b.), Stats., a licensed chiropractor is competent to testify concerning matters within the scope of the practice of chiropractic, where proof is offered, satisfactory to the court, that such chiropractor is qualified as an expert in the field of chiropractic. Citing what was then sec. 147.14(2)(b), this court upheld the admissibility of testimony by a clinical psychologist, not licensed by the medical examining board, to testify as a medical witness. In that case the court noted that ". . . the law traditionally has permitted limited testimony of a medical nature by one not licensed as a medical doctor, if he is, in fact, qualified as an expert. . . ." In a subsequent case, holding a psychologist's testimony admissible, this court stated: ". . . It is the particular qualifications of the witness in relation to the particular issue which should control rather than the label of a profession or trade. . . ." Such general observations were brought back to and under sec. 448.02(2)(b) in a more recent case holding the admissibility of testimony by a podiatrist to be ". . . a matter resting in the sound discretion of the trial court, . . ." under sec. 147.14(2)(b), now sec. 448.02(2)(b). The standard for determining whether expert testimony should be received was stated in that case as "`. . . requiring that the witness "must have such skill, knowledge or experience in that field . . .".'" Where proof satisfactory to the court is offered that a chiropractor has skill, knowledge or experience in the field of chiropractic, he may be permitted to testify as to matters chiropractic in nature under sec. 448.02(2)(b).
Casimere v. Herman (1965), 28 Wis.2d 437, 137 N.W.2d 73.
Id. at page 442, the court also stating at page 444: "The law has long permitted calling as an expert witness any person whose training, experience, and method within his particular discipline is acknowledged to be sound and trustworthy. In many aspects of his work, the psychologist has undoubtedly met this standard."
Roberts v. State (1969), 41 Wis.2d 537, 551, 164 N.W.2d 525.
Simpsen v. Madison General Hospital (1970), 48 Wis.2d 498, 509, 180 N.W.2d 586, this court holding: ". . . Sec. 147.14(2)(b), Stats., [ Note: Now sec. 448.02(2)(b)] provides that the court may permit any person to testify on a medical matter where proof `satisfactory to the court' is presented as to the witness' qualifications."
Id. at page 511, quoting Cramer v. Theda Clark Memorial Hospital (1969), 45 Wis.2d 147, 151, 172 N.W.2d 427.
In the case before us, the trial court permitted the licensed chiropractor who had treated the plaintiffs to testify as to his analysis and treatment, including his analysis of the X rays he had taken, and as to causation of the injuries he treated. We affirm the trial court's ruling as to the admissibility of such evidence. While the definitions of chiropractic may vary in some states, we note that other jurisdictions have similarly upheld admissibility of testimony by a chiropractor as to diagnosis, observation and treatment, and causation of injuries treated by the chiropractor.
See: Jones v. National Biscuit Co. (1968), 29 App. Div. 2d 1033, 289 N.Y. Supp. 2d 588; Taylor v. Maxwell (1966), 197 Kan. 509, 419 P.2d 822; Ward v. North American Rayon Corp. (1963), 211 Tenn. 535, 366 S.W.2d 134; Guiley v. Lowe (Mo. (1958), 314 S.W.2d 232; and Fries v. Goldsby (1956), 163 Neb. 424, 80 N.W.2d 171.
See: Chalupa v. Industrial Comm. (1973), 109 Ariz. 340, 509 P.2d 610; Andrade v. Correia (1971), 358 Mass. 786, 267 N.E.2d 503; Badke v. Barnett (1970), 35 App. Div. 2d 347, 316 N.Y. Supp.2d 177; Agler v. Schine Theatrical Co. (1938), 59 Ohio App. 68, 17 N.E.2d 118; and O'Dell v. Barrett (1932), 163 Md. 342, 163 A. 191. See also: Annot. (1957), Expert Witness — Chiropractor, 52 A.L.R.2d 1384, 1385.
In the case before us, the trial court did not permit the chiropractor involved to testify as to future pain and suffering or the permanence of the injuries he treated. This court has upheld a trial court's discretion in permitting a podiatrist to testify with respect to his consultations with the person injured, but not to render an opinion in the field of causation of injuries involved in the consultations. There this court said, on the point involved, that: "The question of an expert witness' qualifications is a matter resting in the sound discretion of the trial court, and unless it is shown that the trial court abused its discretion its ruling will stand. . . ." However, in the case before us, the trial court did not make an individuated finding that the chiropractor was not competent or qualified to give an opinion as to prognosis or permanence of injury. Instead, the trial court sustained objection to questions asked as to future pain and suffering and permanence of injury on the broad, generalized ground that a chiropractor, qualified as an expert witness, cannot render an opinion as to future pain or permanency of injury. That goes too far. We do not negate the possibility that, in a particular case, a trial court might find a chiropractor qualified as an expert in the areas of diagnosis, treatment and causation in the field of chiropractic, and not qualified to give an opinion as to future pain or permanency of injury. But the trial court here was permitted to admit testimony by the chiropractor as to future pain and suffering and permanency of injury if the court was satisfied that the chiropractor was qualified to answer such questions as an expert. No claim of error is made by the plaintiffs in this regard, and medical testimony of the orthopedic surgeon who testified as plaintiff's witness adequately supports the jury verdict as to permanency of injuries sustained. But, in the absence of a court ruling that the chiropractor here was not qualified to answer questions as to prognosis and permanency, the opinion of such chiropractor as to future pain and suffering and permanence of injury should have been admitted. The barring of such testimony must be individuated to the particular witness and situation, rather than stated as a barrier in all cases. Elements of damage.
Simpsen v. Madison General Hospital, supra, footnote 17, at pages 509-511.
Id. at page 509.
In excluding chiropractic testimony as to future pain and suffering and permanence of injury, the trial court stated, ". . . the policy of the Legislature . . . has been to (1) allow chiropractors to testify as experts but to be very guarded insofar as how much latitude it allows in the invasion of medical areas, and this is the thing that's causing the Court to rule as it is ruling."
See: (Cases holding admissible testimony by chiropractors as to future pain and suffering or permanence of injury): Corbin v. Hittle (1971), 34 Mich. App. 631, 192 N.W.2d 38; Watson v. Ward (Tex.Civ.App. 1967), 423 S.W.2d 457; Lowman v. Kuecker (1955), 246 Iowa 1227, 71 N.W.2d 586; Johnston v. Peairs (1931), 117 Cal.App. 208, 3 P.2d 617; and Oklahoma Natural Gas Corp. v. Schwartz (1930), 146 Okla. 250, 293 P. 1087. See also: Annot. (1957), Expert Witness — Chiropractor, 52 A.L.R.2d 1384, 1390, 1391.