Medical negligence: Can you sue a chiropractor for the wrong diagnosis and treatment?

Black’s Law Dictionary 305 (4th ed. 1951) defines Chiropractic as: “A system of healing that treats disease by manipulating the spinal column. A system of therapeutic treatment through adjusting of articulations of human body, particularly those of the spine. The specific science that removes pressure on the nerves by adjustment of the spinal vertebrae.

Case law reasoned in Walkenhorst v. Kesler, (1937) that: “Chiropractic is the system of therapeutic treatment of various diseases, through adjusting of articulations of the human body, particularly those of the spine, with the object of relieving pressure or tension on nerve filaments by operations performed with the hands, and without administration of drugs; a system of manipulation which aims to cure disease by the mechanical restoration of displaced or subluxated bones, especially the vertebrae, to their normal relation”.

Chiropractic: Court Perception on Practice

In a country where medical negligence cases are becoming rampant, chiropractors are also not immune.   Though, no cases exist in our courts.  In the US, early court decisions were quite bitter and insolent.  In Willette v. Rowekamp, 58 Ohio App. 465, 16 N.E, 2d 797, 799 (1938), an Ohio appellate court said:

“The human body constitutes too delicate a mechanism to permit unskilled, unscientific and unprofessional persons to tamper therewith under the guise of being able to cure malady, disease or injury”.  This means a chiropractor who has not been to school is dangerous to public health.

Chiropractor Negligence

The first area is the failure to diagnose a medical condition that demands immediate care. Case laws have recognized that chiropractors are not real doctors; whether educated or not. This means they are not mandated to diagnose your spine problem.

 Case Law Analysis on Diagnosis

In Cucchiara v. Funicelli (New York 2020): The court dismissed a chiropractic malpractice lawsuit that alleged failure to diagnose adenocarcinoma of the skin on the decedent’s head and neck and referred him to an appropriate specialist. But the case is more about the plaintiffs’ failure to proffer enough evidence than the core issue of whether a chiropractor has a duty to spot cancer symptoms in a patient.

Also, in Yagodinski v. Sutton (Nebraska 2021):  The court specifically rejected the idea that a chiropractor is authorized to diagnose human disease without limitation. This means that a chiropractor should know their limitation and act accordingly.  In Wallace v. La Vine, (1940), a  chiropractor was held liable for negligence in applying a cast to a fracture.

In Janssen v. Mulder, (1925), the Chiropractor accepted to treat a child suffering from diphtheria. The child later died and a suit was commenced.  The respondent admitted he had no experience in bacteriological examinations.

Hence, cannot differentiate diphtheria from typhoid fever, and could not also differentiate the symptoms of tonsilitis (the disease which the defendant had stated was the cause of the child’s fever, according to the mother’s testimony) and had not taken the child’s temperature.

The respondent testified that he had merely “adjusted” one vertebrae of the patient’s spine and he stated, “We do not diagnose.” The court held the defendant liable for failing or neglecting to ascertain the nature of the child’s ailment before treating her.  The court ruled that the chiropractor should have diagnosed the child before treatment.

In   Beech v. Hunter, 14 Tenn.App. 188 (1931), where the plaintiff was afflicted with Pott’s disease, a tubercular eating away of the vertebrae that are easily recognizable in its advanced stages. The defendant diagnosed the ailment as a misaligned vertebra and was held liable for negligence in failing to determine the cause of the patient’s ailment.

The case was somehow different in Nelson v. Dalil, (1928) where the chiropractorwas held not negligent where the plaintiff’s intestate, who had a weak heart and a goiter, sought relief from headaches and died from heart failure due to toxemia, (namely, poison coming into the blood from the goiter) following chiropractic treatment.

The court reasoned that the result in itself was not enough to show negligence and that the failure to diagnose did not indicate negligence, since the school of chiropractic limited its field of operation to the spine and made the abnormal normal, which “could seldom have harmful consequences.”

The holding of this court is in accord with the line of cases in which the “school of healing” standard is strictly followed, the reasoning being that chiropractic does not concern itself with “diseases” or “diagnosis” thereof, but only with “adjusting” or “subluxations.”

However, in Kuechler v. Volgmann, (1923),  the court reasoned that a chiropractor will be judged according to the School of Drugless Professionals in treatment only based on the standard of care of the School of Chiropractic; but if the negligence is in diagnosis and treatment, the standard of care is that of a recognized school of the medical profession. In this case, the Wisconsin court is of the view that any diagnosis is outside the scope of chiropractic practice; and will be held to the standard of care of a medical doctor.

In Treptau v. Behrens Spa, (1945); and Kuechler v. Volgnann, (1923), the court took judicial notice that the practice of chiropractic does not include diagnosis.

Hence, in Bakewell v. Kahle, (1951), where a chiropractor attempted to diagnose, he was held liable for erroneously diagnosing a brain tumor as two misplaced vertebrae. The court did not recognize the fact that the chiropractor belongs to the school of drugless healing but noted that no good reason exists why the law applied to physicians, surgeons, dentists, and the like, should not apply to chiropractors.

Hence, the court did not have mercy in Kelly v. Carrol (1950), where the defendant diagnosed the patient’s complaint as a “reaction” and treated him with hot and cold packs and “sine wave” treatments. After the twelfth day, the defendant advised the patient’s wife to call in a physician. The doctor diagnosed the ailment as appendicitis. The condition was so advanced that an operation was delayed, and eight days later the patient died.

Though, in this case, the defendant was not a chiropractor, but a licensed drugless healer sanipractor and was held liable in a wrongful death action, the court approved the trial court’s refusal to instruct on the “school of healing” standard of care.  In this case, the court held that failure by a drugless practitioner to advise or refer the patient to a more appropriate treatment is a ground for negligence especially when the drugless healer knows the treatment is ineffective.

The court laid down four “basic propositions” as the premises of its opinion: (1) a drugless healer is not a doctor; (2) drugless healers cannot qualify as expert witnesses as to matters in the general realm of medicine and surgery; (3) drugless healers do not belong to a school of medicine; (4) one who does not have a license to practice medicine and surgery is, nevertheless, liable for malpractice when he assumes to act as a doctor and is to be judged as if he were a doctor because of those acts.

Reasoning from these principles, the court held that the “school of healing” standard does not apply to drugless healers, and if the drugless healer undertakes to treat a disease for which, in the highest level of medical science, there is a generally recognized treatment he will be held to the standard of care of the reasonably skilled and trained doctor of medicine and surgery. The court further held that when a drugless healer knows or should know that his method of treatment is not of a character productive of reasonable success, it is his duty to cease and to advise his patient to seek other relief.

The court stated that the healer may be found negligent under this rule, although the patient knows that such a healer belongs to a school that will not use or advise the kind of treatment that is contended should have been given or advised.

In Walkenhorst v. Kesler, (1937), the cause of action was held to have been sufficiently stated where the complaint alleged that the chiropractor had negligently failed to properly diagnose the patient’s condition as a broken hip, but informed the patient that the pain he was suffering in his hip was merely rheumatism which was caused by portions of the patient’s spinal column being out of alignment; and that the defendant failed to recognize symptoms of infections in the patient’s hip, but informed him that he had a mere boil on his hip and not to worry.

The court reasoned that the “school of healing” standard was inapplicable to a chiropractor on the ground that the regulatory statute did not recognize a division of the healing arts into “schools of healing.”

The court reasoned that: “Their qualities are so far inferior to those of a doctor that the law will conclusively presume that they are not upon terms of equality which would entitle their opinions to cancel out the best medical opinion available.” In other words, this court is among those that hold the “school of healing” standard inapplicable to drugless healers since they feel that such healers, because of their limited qualifications and methods, are dangerous as presently regulated and must be dealt with more strictly.

Take home

Chiropractors Need to Stay in Their Lane

The courts have held that Chiropractors are not real doctors.  Thus, they have to be dealt with in the event of negligence. I, therefore, urge Chiropractors to stay in their lane and refer where necessary.

Where the chiropractor misrepresents as a Medical Doctor to the general public, it is presumed that the chiropractor has the requisite knowledge to lace the shoes of the Medical doctor in diagnosing and treating the patient and will be held to the test in the medical men profession.

Prof. Raphael Nyarkotey Obu is a full professor of Naturopathic Healthcare. Recently completed the Barrister at Law Course at the Gambia Law School, Banjul.  E-mail: professor40naturopathy@gmail.com. This article is for educational purposes and awareness only.