36 Wn.2d 482, LAURETTA KELLY, as Administratrix, Respondent, v. O. G. CARROLL et al., Appellants
[No. 31182. Department Two. Supreme Court May 31, 1950.]
LAURETTA KELLY, as Administratrix, Respondent, v.
O. G. CARROLL et al., Appellants.«1»

In the case of State v. Houck, 32 Wn. (2d) 681, 203 P. (2d)693, in which the defendant was charged with the unlawful practice of medicine and surgery in treating an obstetrics case, this court said:

"The title to chapter 36, and 13 of the act (Rem. Rev. Stat., 10123), when liberally construed in connection with

490 KELLY v. CARROLL. [36 Wn. (2d)

the other statutes relating to the care of the sick and afflicted, proves conclusively that ;the legislature intended to treat drugless healing as it did the other schools of practice-that is, that drugless healers should be allowed to do only those acts included within the definition which we have heretofore quoted.

". . . It will be noted that the act does not require proof of practical experience in a hospital, nor does it indicate in any way that it was intended to extend the privilege of taking care of women prior to, at, and after childbirth. The act makes no reference to the character of school, as do the acts relating to physicians and surgeons, and osteopathy.

"What we have said about the right to practice obstetrics, applies with equal force to the administration of ether and the administration of a drug by hypodermic injection. The giving of a drug, either orally or by injection, which, as we have pointed out, is a medicine, is limited to those practitioners especially designated by statute. In this connection, it will be noted that physicians and surgeons are authorized `to use drugs' and `to sever or penetrate the tissues of human beings.' " (Italics ours.)

[5] The second proposition is that drugless healers cannot qualify as expert witnesses as to matters in the general realm of medicine and surgery. The first proposition was treated at length, because the second is a corollary to it. We state specifically that we are not here concerned with the testimony of a drugless healer as an expert in the field of drugless healing as permitted by law. But it is apparent that the fields of drugless healing and medicine and surgery are not coextensive, and we are here concerned with that field in medicine and surgery that lies outside of the drugless healing field. Thus, in State v. Karsunky, supra, the field of expert testimony was not limited to drugless healers, but was, in the main, covered by medical doctors. We quote:

"Five men of experience in the medical profession testified that the only known and accepted treatment of diabetes mellitus is by the use of a restricted carbohydrate diet and the use of insulin, depending, of course, upon the severity of the disease; and that to induce Hahn to abstain from the use of insulin in view of `a case of his standing' would be the same as `signing his death warrant,' as he absolutely could not live without taking insulin. There is no evidence,

May 1950] KELLY v. CARROLL. 491

other than appellant's testimony, contradicting the testimony of the five experienced physicians."

Of course, a court, in its sound discretion, must pass upon what field of expert testimony is involved in any particular situation, in order to require a proper qualification of an expert witness.

[6, 7] There are fields of opinion testimony in which the expert must be licensed, and there are others where he need not be. In the nonlicensed field, the court exercises a sound discretion as to the competency of each individual witness as an expert. In the licensed field, the law presumes that licensed witnesses are experts and nonlicensed witnesses are not. Thus, doctors with unlimited licenses are competent to give expert testimony in the entire medical field. See Robinson v. Marino, 3 Wash. 434, 28 Pac. 752, in which the court said:

"Physicians and surgeons of experience are presumed to be acquainted with all matters pertaining to their profession, and to be competent to testify concerning the same.

Chiropractors, on the other hand, are limited in their testimony to their special field. See Voight v. Industrial Commission, 297 Ill. 109, 130 N. E. 470; Carnine v. Tibbets, 158 Ore. 21, 74 P. (2d) 974.

[8] The third proposition is that drugless healers do not belong to a school of medicine. This is also a corollary to the first proposition. As was pointed out in State v. Houck, supra, they do not study in medical colleges as defined by statute, but in drugless healing schools. Thus, the particular school of their attendance is not a medical school, nor can such a school be said to adhere to a school of medicine, in the sense that a particular school is identified with a recognized and distinct approach to medical practice or opinion. This is so, notwithstanding the fact that some subjects taught in medical schools are also taught in the drugless healing schools.

In State v. Houck, supra, and State v. Lydon, supra, it was urged that the purpose of requiring drugless healers to study obstetrics was to qualify them to practice obstetrics.

492 KELLY v. CARROLL. [36 Wn. (2d)

The Houck case settled that contention by definitely holding drugless healers could not practice obstetrics. Treatment of the sick by unskilled persons may be injurious. A knowledge of what not to do may, in some instances, be indispensable to the patient's safety. As was said in Janssen v. Mulder, 232 Mich. 183, 205 N. W. 159:

"The defendant maintained an office to which people were invited to come for the relief of human ailments. He admits that there were certain of such ailments which he did not profess to treat. It would seem to follow that he represented and held himself out to the public as possessing the necessary knowledge and skill to determine whether the ailment of the person brought to him was such an one as his treatment would probably relieve. . . . To so determine, it was incumbent on him to use reasonable care and skill to ascertain whether the ailments were of the class to which his treatment applied."

The legislature required drugless healers to pursue certain studies in order that they would know enough not to injure patients, and to recognize cases where their limited methods are inefficacious and the services of a doctor are required.

[9] The fourth and last proposition is that 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.

The appellant's theory that a drugless healer is licensed to treat all human maladies, and must be exonerated from all liability on his part, if he resorts only to the particular methods of his cult for determining the nature of diseases and the remedies therefor, no matter how serious the consequences, cannot be entertained. That proposition, if accepted as true, would contravene a sound public policy. 21 R. C. L. 383. It would render the legislature's exercise of the police power meaningless and ineffectual in requiring licenses for the treatment of human maladies. The essence of its purpose is to eliminate incompetent persons from holding themselves out to treats the public. A rule of caveat patiens would defeat such a purpose.

May 1950] KELLY v. CARROLL. 493

[10] Due regard must be had for the advanced state of medical knowledge at the time of the treatment of any human malady, and refuge may not be found in the practices of the medical dark ages. Peterson v. Hunt, 197 Wash. 255, 84 P. (2d) 999; Sinclair v. Haven, 193 Wash. 651, 89 P. (2d)820. It follows that, if there is a reasonable general agreement as to what is the proper medical treatment for a disease or an organic disorder, the question of whether or not the treatment, in a particular case, was correct must be determined by the testimony of expert witnesses from the medical field who alone are qualified to speak.

[11] While it is true that a practitioner such as the appellant, is not, in his limited field, required to be an insurer of results any more than a doctor of medicine, still, if he steps out of his limits and undertakes to treat a disorder for which, in the highest level of medical science, there is a generally recognized treatment, such interloper must be held accountable to the accepted standard of treatment. Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228; Walkenhorst v. Kesler, 92 Utah 312, 67 P. (2d) 654.

Appellant's first assignment of error is directed to a hypothetical question, which the court permitted to be answered. It is as follows:

". . . If a patient presents symptoms of pain in the stomach and throughout the abdomen, nausea and rigidity of muscles in the abdomen, with temperature, and is treated for a reaction for a period of twelve days, and his condition grows much worse, should a sanipractic doctor of average skill and experience as those of the same school of practice in Spokane, Washington, and with the use of ordinary care, be led to suspect that the patient is suffering from appendicitis?"

Appellant's objection that the question contained facts not in evidence is without merit. The question is, in fact, too favorable to appellant, since it offers refuge in his cult without regard to a more reliable science.

Appellant's assignments of error Nos. 2, 3, and 7 are directed to the sufficiency of the evidence.

494 KELLY v. CARROLL. [36 Wn. (2d)

It was incumbent upon the respondent to show that there had been a wrong diagnosis, and that it had been followed by treatment that was injurious. It was amply clear that Kelly had many of the characteristic symptoms of appendicitis, and appellant must have been aware that appendicitis was a probability, if not a certainty. If it was appendicitis, he had no right to treat it; and if there was a possibility that it was appendicitis, he had no right to gamble with Kelly's life, on the theory that it might be something else.

[12, 13] The gist of appellant's argument is that a wrong rule of law was followed with regard to the admission of evidence and the effect allowed to be given to the evidence. He relied heavily upon Fritz v. Horsfall, 24 Wn. (2d) 14, 163 P. (2d) 148, it being his position that the law is that a doctor does not incur liability for his mistakes, if he has used methods recognized and approved by those reasonably schooled in the profession, and that the testimony of other doctors that they would have followed a different course of treatment than that followed by appellant, or a showing of a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence. Pursuant to his theory, the appellant produced witnesses, who were drugless healers, who supported his version of the facts as to the diagnosis and treatment of the deceased. It is appellant's position that a doctor of a particular school may practice according to the tenets of that school, and that the testimony of a doctor of a different school, who disagrees with the treatment, cannot establish negligence. In short, that a drugless healer must be tried upon the expert opinion of drugless healers only, and that they will not be liable if they follow the tenets of their school.

We may grant at once that there has been such a rule applied between doctors. We repeat that appellant is not a doctor, and it might be thought to be presumptuous on his part to attempt to invoke a rule applicable only to doctors. He is a practitioner under the statute providing for drugless healing. He did not attend a medical school

May 1950] KELLY v. CARROLL. 495

for doctors as prescribed by statute. Rem. Supp. 1947, 10008. He may not practice medicine. Drugless healers, with licenses of the kind possessed by appellant, have been repeatedly convicted in this state for the practice of medicine.

The court should not apply such a rule to drugless healers, because it is obvious that their qualifications 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. Should any court so hold, it would bring reproach upon judicial processes by departing from the time-honored rules of evidence devoted to the most trustworthy ways of revealing truth, which has always admitted the best evidence available.

With the advance of medical science, it is apparent that there is less and less occasion to invoke the rule, even between doctors. The history of this rule is found best stated in an old Washington case, Ennis v. Banks, 95 Wash. 513, 164 Pac. 58. In that case an allopathic physician had given a patient, suffering with typhoid fever, milk toast and a poached egg. The patient died. In an action for malpractice, the plaintiff purported to prove that this had caused the patient's death by the testimony of a homeopathic physician. At that time, the best qualified doctors were frequently divided into the allopathic and homeopathic schools of thought, and since they were equally high and equally expert, and since their views could not be reconciled, the court naturally enough felt incompetent to choose between them, and so the rule was promulgated. The court said:

"Each school of medicine is entitled to practice in its own Way, and because one does not use the methods of the other is no reason for holding the one for malpractice. Tn the case of Dahl v. Wagner, 87 Wash. 492, 151 Pac. 1079, we said:

" `It has been the uniform holding of this court that where doctors of equal skill and learning, being in no way impeached or discredited, disagree in opinion upon a given state of facts, that the courts cannot hold a defendant in a

496 KELLY v. CARROLL. [36 Wn. (2d)

malpractice suit to the theory of the one to the exclusion of the other.' " (Italics ours.)

Historically speaking, the war that raged between the homeopaths and allopaths was in the dark age of medicine. Indeed, many modern doctors are not acquainted with the names, and the distinction between the schools has completely disappeared in the light of scientific strides made in recent years. Moreover, it should be remembered, in connection with the promulgation of the rule, that both witnesses were doctors of the highest standing and knowledge, and that they were equal in that there was no higher source of medical knowledge available. In any event, the rule can avail the appellant nothing, because its rationale is applicable only where doctors are concerned who are equal in their qualifications, and where no recourse can be had to higher learning or greater experts.

Appellant's assignments of error Nos. 4, 5, and 6 are directed to instructions given or refused by the court.

[14] Assignment No. 4 is directed to the refusal of the court to give appellant's requested instruction No. 2, which reads as follows:

"You are instructed that to sustain a judgment against a physician the standard of healing practice in the vicinity must be shown and, further, that the doctor failed to follow the methods prescribed by that standard. However, it is not required that the physician guarantee results, nor that the result be what is desired.