This case was decided in August, 1933. The opinion was prepared by Mr. Justice BUFORD, four other members of the Court participating with him.
The substance of the Court's decision is that in an action for damages resulting from an injury caused by negligent treatment of a patient by a doctor of that phase of clinical surgery known as chiropractic, the doctrine of res ipsaloquitur does not apply; that while doctors of clinical medicine and clinical surgery, when consulted by one seeking treatment for a real or imaginary ailment, must determine at their peril whether the ailment, if any, to be dealt with may be properly treated and by what method, error, unskillfulness or negligence in either the diagnosis or treatment is not proven by the fact that the patient continues to suffer, grows worse or dies, because if such rule obtained a physician would in effect be a "warrantor of cures." If the doctrine of resipsa loquitur were applicable few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the "ills that flesh is heir to," as said by Judge Taft in Ewing v. Goode, 78 Fed. Rep. 442. *Page 608
Having announced that doctrine, the opinion then holds that the negligence of which the plaintiff complained and with which he charged the defendant in the application or administering of the treatment had not been established, because the "adjustment to which the injury causing death may be attributed" was not shown by the evidence to have been done in an "unskillful, careless or negligent manner."
A petition for a rehearing was granted on the application of Mr. Thornton and the case came on for oral argument on November 7th.
We do not agree with counsel who ably argued the case in behalf of the defendant in error, the plaintiff below, that the opinion holds that negligence in a case like the one at bar may not be inferred from circumstances. Nor do we announce any such doctrine now, but we do hold that when circumstantial evidence is relied upon in a case like the one at bar to establish negligence on the part of a physician or surgeon in the administration of treatment to a patient, whom the physician or surgeon has decided should be subjected to the particular treatment administered, the circumstances should raise a fair presumption of negligence.
The case of Cobb v. Twitchell,
Whether the circumstances raise a fair presumption of negligence involves a consideration of the very principle underlying the probative force and admissibility of such evidence, and that is the logical connection between the circumstances and the result as to which the inquiry is directed. For the circumstances therefore to have any probative value as evidence of the principal question they must of necessity be not only consistent with the theory that the result inquired into flowed therefrom, but inconsistent *Page 609 with any other result which might just as reasonably and logically be established by such circumstances.
Now the jury in the case decided that the treatment administered by the doctor produced the patient's death, which was caused by a ruptured blood vessel in the brain. This conclusion was evidently arrived at from the evidence of physicians and surgeons who said that the rupture was caused by violence, and from the testimony of the defendant himself that the "adjustment" to which he submitted the patient, if properly made, could not have caused the rupture. That the rupture was caused by the adjustment was evidenced by the fact that the patient went to the doctor's rooms for a treatment like that which she had before received and while under the treatment suddenly suffered the shock which resulted in severe pain and subsequent unconsciousness.
Upon reconsideration of the case we hold that the Court should recede from its former conclusion and affirm the judgment.
It is so ordered.
DAVIS, C. J., and WHITFIELD and BROWN, J. J., concur.
TERRELL and BUFORD, J. J., dissent.
