which it rests; that the purpose of the treatment is to permit the bones to anchylose, that is, the head of the femur and the acetabulum to grow together, and to cause them to grow together straight so that the person may be able to use the leg, notwithstanding it may be stiff at the hip; that the disease usually results in a shortening of the leg of an average of 3 or 4 inches, and that in consequence there is a "compensatory curvature of the spine;" that when a patient has hip disease it is improper treatment to "rotate" or move the leg or hip joint; that from their examination of the plaintiff and from the history of the case in evidence they were of opinion that she was in the first stages of hip disease, and did not have partial dislocation of the hip; that her present condition is not the result of hip disease, but of traumatism,—that is, an injury resulting from accident or violence to the hip; that she is unable to walk; and that, while the hip disease seems to be arrested, or cured, as it is generally called her leg is turned out at an angle of 45 degrees, instead of being straight, as it should be.

For the purposes of this case this is a sufficient statement of the facts and of the medical expert testimony.

At the close of the plaintiff's case the defendant demurred to the evidence. Before the court passed on the demurrer, the plaintiff asked leave to introduce evidence to show that the text-books used in the American School of Osteopathy are the same as used in the other medical schools in Missouri and other medical institutions, and that the osteopaths have no fixed rule of practice for the treatment of hip disease. The court treated the offer as proved, and sustained the demurrer to the evidence. The plaintiff saved an exception and appealed.

The case stated in the petition is a diagnosis by the defendant that the plaintiff had partial dislocation of the hip, and not hip disease, treatment by the defendant for partial dislocation, and negligence and unskilfulness in both respects; and the defense is a general denial, an admission that he treated the plaintiff, and an affirmative plea that the plaintiff was afflicted with hip disease and a partial dislocation of the hip. The plaintiff tried the case upon the theory that the defendant's diagnosis was incorrect, and that she had hip disease in its primary stage, and did not have partial dislocation of the hip, and that the defendant treated her for partial dislocation, and that such treatment was improper in view of her having hip disease, and that the defendant's treatment was further negligent because it left the leg turned out at an angle of 45

degrees, instead of straight, as it should have been whether treated for dislocation or hip disease. The defendant tried the case upon the theory, first, that the plaintiff had hip disease and partial dislocation; and, second, that she showed no damage, because the same results would have ensued from hip disease, and that the treatment for partial dislocation did no injury. The defendant's chief contention, however, is that he is an osteopath, and that the expert witnesses introduced by the plaintiff belong to different and hostile schools or systems from his, and therefore are not competent to give an opinion in the case, but that he must be judged only by the persons of his own school or system; and, while the record does not show that the court acted upon this theory in sustaining the demurrer to the evidence, counsel seem to agree that this was the chief reason for the ruling.

1. The contention of the defendant that the plaintiff showed no damage, because she had hip disease, and the same results would have ensued therefrom, and that the treatment for partial dislocation did no injury, is untenable. If plaintiff had hip disease, it was in the primary stage. There was no inflammation, or pus, or sensitiveness to pressure, and hence no dislocation attributable to that disease, for dislocation resulting from hip disease could not occur until the ravages of the disease had destroyed the head of the femur or the rim of the acetabulum to such an extent that the femur would slip out of its socket, and there is nothing in this case which affords any countenance to any such theory of the case. But whether this was so or not, it needs no expert opinion to show to the common sense of mankind that it could not do hip disease any good to be treated as the testimony of the lay witnesses shows that the defendant subjected the plaintiff to. A diseased hip could not possibly be benefited by giving the ligaments of the hip "an awful stretch," and forcing the femur into the socket whether it wanted to go or not, as the lay witnesses say the defendant said he did to the plaintiff's leg. It stands to reason that inflammation is not cured or bettered by irritation or by rotating the parts so suddenly and violently as to result in fever and great soreness. If the plaintiff had hip disease, it was in the first stages, and therefore she stood a better chance of having the disease arrested or cured by proper treatment than she would stand after her hip had been subjected to the violent treatment that the defendant subjected it to. It is too plain to admit of argument or serious question that it does not lie in the defendant's mouth to say that the same results would have ensued from hip disease even if he had not treated

her as he did. It could as well be argued that where a patient is improperly treated for a fracture of a limb, and gangrene sets in and the patient dies, that the physician is not liable because the patient had consumption, and would have died anyway. A patient, however afflicted, is entitled to let nature take its course, and not have even natural consequences precipitated by the improper treatment of the physician, or by an improper diagnosis, and hence the improper treatment applied.

2. The defendant also pleaded that the plaintiff had both hip disease and partial dislocation of the hip joint. Of course, it is possible that one may have both hip disease and partial dislocation of the hip joint at the same time, and it is also possible that the dislocation may be the result of the advanced stage of the hip disease, or from an accidental cause. But it is perfectly manifest to common sense that, if the dislocation was the result of the ravages of the hip disease which had so destroyed the head| of the femur, or the rim of the acetabulum, that the femur would slip out of its socket, it could as easily be slipped back into place without any violence, and that it would be necessary to use some kind of an appliance to keep it in place until the bones anchy losed; and as the defendant did nothing of this kind it must be assumed that he did not intend by his pleading to say that the partial dislocation was the result of the hip disease, but that it was traumatic. If it was traumatic, it was necessary and proper to reduce the dislocation, whether the patient had hip disease or not; for, if it was not done, the bones would not grow together straight, and hence the usefulness of the limb would be greatly impaired after the hip disease was arrested or cured. Upon this assumption, the defendant would not have been guilty of any negligence, for the manner of the doing of it is not an unusual way of reducing such a dislocation, and in fact is, in effect, the only way of doing so. The only practical difference between the way in which defendant did so and the use of the pulleys and the Jarvis adjuster, spoken of in Vanhooser v. Berghoff, 90 Mo., loc. cit. 492, 3 S. W. 72, is that the defendant used his hands, while the pulleys and the Jarvis adjuster are mechanical appliances. The purpose of both is the same, to wit, to draw the head of the femur away from the hip socket, so that it will "slip" or "snap" back into place.

But the gravamen of the plaintiff's case is that the defendant was guilty of malpractice, in that he diagnosed her case as a partial dislocation, and said she did not have hip disease, and that he treated her for a dislocation when there was no dislocation,

and hence no necessity or excuse for such treatment. In support of her case, the plaintiff introduced lay witnesses, who testified to the child's condition before the operation, which was such as would appear not to be even a partial dislocation, and to the diagnosis made by the defendant, and his statements and assurances to her parents that she had a partial dislocation, and did not have hip disease, and also the testimony of Drs. McDaniel and Aiken, who examined her before the operation, as well as afterwards, which was admitted without objection, so far as the record shows, and who said she did not have any dislocation of the hip whatever. This testimony made out a prima facie case, which entitled the plaintiff to go to the jury, and cast upon the defendant the necessity of overcoming it and making out his defense. This results without taking into consideration at all the testimony of the plaintiff's expert medical witnesses, whose testimony the defendant objected to.

3. The defendant objected to the testimony of Drs. Clapp, Goben, Quinn, and Grimm, the medical experts called by the plaintiff, "because it was not shown that they had any knowledge or information as to the method prescribed, taught, or practised by osteopaths for the treatment of hip-joint disease, and because the question as to whether the treatment administered by the defendant was correct or incorrect must be determined by the rules and methods of osteopaths, and not by the methods or mode of treatment taught and practised by allopathic physicians." The court overruled the defendant's objection and admitted the testimony, but the court afterwards sustained the demurrer to the evidence, and counsel concede that it was for the reason expressed in this objection that the court so ruled; and it must have been for this reason, as there is none other perceivable in the record. The duty and liability of a physician or surgeon to a patient, and what constitutes malpractice, is thus stated in 22 Am. & Eng. Enc. Law, 2d ed. pp. 798 et seq.: "Malpractice is the bad professional treatment of disease, pregnancy, or bodily injury, from reprehensible ignorance or carelessness, or with criminal intent. A physician, surgeon, dentist, or other medical practitioner offering his services to the public as such impliedly contracts that he possesses and will use in the treatment of his patients a reasonable degree of skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about a good result. A failure to perform this contract renders him liable for injuries caused to the patient thereby. The standard by which the degree of care, skill, and diligence

required by physicians and surgeons is to be determined is not the highest order of qualification obtainable, but is the care, skill, and diligence which are ordinarily possessed by the average of the members of the profession in good standing in similar localities, regard also being had to the state medical science at the time. Unless it is so provided by an express contract, the physician or surgeon does not warrant that he will effect a cure, or that he will restore the patient to the same condition in which he was before the necessity for the treatment arose, or that the result of the treatment will be successful." The same work, at page 801, then says: "The law, in the absence of a special statute, does not give exclusive recognition to any particular school or system of medicine, and the question whether or not a prac titioner in his treatment of the case exercised the requisite degree of care, skill, and diligence is to be tested by the general rules and principles of the particular school of medicine which he follows, not by those of other schools. A school of medicine, to be entitled to recognition under this rule, must have rules and principles of practice for the guidance of all its members as respects principles, diagnosis, and remedies, which each member is supposed to observe in any given case. A class of practitioners who have no fixed principles or formulated rules for the treatment of diseases must be held to the duty of treating patients with the ordinary skill and knowledge of physicians in good standing." In support of the doctrine of the text the following cases are cited: Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116; Bowman v. Woods, 1 G. Greene, 441; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Hesse v. Knippel, 1 Mich. N. P. 109; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; Corsi v. Maretzek, 4 E. D. Smith, 1; Williams v. Poppleton, 3 Or. 139; and Nelson v. Harrington, 72 Wis. 591, 1 L. R .A. 719, 7 Am. St. Rep. 900, 40 N. W. 228.

A short review of those cases is both pertinent and interesting. Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116, was a suit for damages for malpractice in treating plaintiff for ophthalmia. The defendant was a homeopathic physician, and treated the plaintiff according to the system of that school. There was no question as to the diagnosis of the case. It was simply as to the treatment. The defendant asked the court to instruct the jury "that treatment by a physician of one particular school is to be tested by the general doctrines of his school, and not by those of other schools." The trial court refused to so instruct, but, instead, instructed the jury as follows: "In regard

to that matter, I will say that the defendant's negligence or want of skill in the treatment of the plaintiff's eye must be determined by all of the evidence in the case; and if the defendant adopted the treatment laid down by one particular school of medicine, and the medical testimony offered by the plaintiff related to treatment prescribed by a different school, you will weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school from that of the defendant. You should also take into consideration the training and education of the defendant for his profession, the experience which he has had, and the degree of skill with which he handled the case, all bearing upon the question whether the defendant used ordinary care and skill in the treatment of the plaintiff."

The supreme court of Connecticut quoted with approval the cases of Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593, and Bowman v. Woods, 1 G. Greene, 441, and held that the trial court erred in not instructing as the defendant asked and in instructing as it did; and said that "the jury are not to judge by determining which school, in their own view, is the best," and that the bias and prejudice of one school against the other is the very thing that defendant stood in danger of, and that, as it appeared that the homeopathic school prescribed certain rules and principles of practice for the guidance of its members in such cases, and as the defendant belonged to that school, he could only be judged by the doctrines of his school, and not by those of other schools; and accordingly reversed the judgment of the lower court, which was in plaintiff's favor.

Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593, was a suit for professional services. The defense was malpractice. The report of the case does not show to what school of medicine the plaintiff belonged, or whether physicians of any other school testified, nor what the disease of the defendant was, nor whether the malpractice consisted of an improper diagnosis or an improper treatment. It simply shows that the defendant claimed that the plaintiff was guilty of malpractice "in the treatment, and such ignorance, want of skill and judgment on the part of the plaintiff in managing professionally the case that the patient was more injured than benefited by his treatment." The trial court instructed the jury in regard to the general duty and liability of a physician substantially as hereinbefore quoted from the American & English Encyclopedia of Law, and then added: "If the case is such that no physician of ordinary knowledge or skill would doubt or hesitate,

..

and but one course of treatment would, by such professional men, be suggested, then any other course of treatment might be evidence of a want of ordinary knowledge or skill, or care and attention, or exercise of his best judgment; and a physician might be held liable, however high his former reputation. If there are distinct and differing schools of practice, as allopathic, or old school, homeopthic, Thompsonian, hydropathic, or water cure, and a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, and not by those of other schools. It is to be presumed that both parties so understood it. The jury are not to judge by determining which school, in their own view, is best." The court also instructed the jury "that in cases where authorities differ, or 'doctors disagree,' the competent physician is only bound to exercise his best judgment in determining which course is, on the whole, best." The supreme court said, "The instructions given were in accordance with the well-settled principles of law," and affirmed the judgment in favor of the plaintiff. Bowman v. Woods, 1 G. Greene, 441, was a suit for damages for malpractice in a case of accouchement, in that the defendant failed to remove the placenta or relieve the bladder for thirty-six hours after parturition. The plaintiff showed by the testimony of allopathic physicians that such treatment was improper, and liable to result in puerperal fever. The defendant then offered to prove that he was a botanical physician, and that according to the botanic system of practice and medicine it is considered improper to remove the placenta, and that it should be permitted to remain until expelled by the efforts of nature. The trial court excluded the testimony so offered. The supreme court held that no particular system of medicine is established or favored by the laws of Iowa, “and, as no system is upheld, none is prohibited;" that "the regular, the botanic, the homeopathic, the hydropathic, and other modes of treating diseases, are alike unprohibited;" and that "a person professing to follow one system of medical treatment cannot be expected by his employer to practise any other. Therefore, if in this case the defendant below could show that he was employed as a botanic physician, and that he performed the accouchement with ordinary skill and care in accordance with the system he professed to follow, we should regard it as a legal defense." Accordingly a judgment in favor of the plaintiff was re

versed.

Martin v. Courtney, 75 Minn. 255, 77 N. W. 813, was a suit for malpractice against an allopathic physician and surgeon in the amputation and subsequent treatment of

the plaintiff's husband's toes, which had been crushed by accident. A second amputation was found necessary, and the sole point was whether it should have been of an additional quarter of an inch of the foot or of the whole foot at the ankle. Another allopathic physician testified that the defendant had acted properly. But the plaintiff called a homeopathic physician, and asked his opinion as to whether the treatment was proper. Upon objection being made to this, the witness testified that there is a decided difference between the rules and principles of the two schools as respects "the practice of medicine," but not as respects surgery; that there was no difference between the two schools as to the treatment of sepsis connected with surgery, but there was a difference where the sepsis has produced a diseased condition, for then it became a question of disease, and not of surgery, and the treatment of the two schools would be entirely different. The defendant offered to prove that the two schools are hostile to each other in their rules of treatment of sepsis, even in cases connected with surgery. The trial court excluded the evidence offered by the defendant, and permitted the homeopathic physician to testify. The supreme court held this to be error, and that a physician must be judged by the rules and principles of medicine of the school to which he belongs, and not by those of any other school, and accordingly reversed a judgment in favor of the plaintiff.

Corsi v. Maretzek, 4 E. D. Smith, 1, was a suit by an opera singer against the director of the opera for two weeks' salary. The defense was that the plaintiff failed to appear at an entertainment, and that his contract provided that in such event he should forfeit a month's salary, unless he was prevented by sickness, which had to be proved by a doctor appointed by the director, and that the director had appointed such doctor. but that the plaintiff did not prove his sickness by him. The defendant proved by an allopathic doctor that he was sick, and claimed that the doctor appointed by the director was a homeopath, and contended that a homeopath was no doctor at all. The plaintiff recovered in the lower court, and the defendant appealed to the court of common pleas of the city and county of New York. The decision of the latter court is quite interesting as a review of the origin and development of the science of medicine, and holds that a homeopath is a doctor, but the decision does not throw any light upon the case at bar.

Williams v. Poppleton, 3 Or. 139, was a suit for damages for malpractice in the treatment of plaintiff's fractured ankle. The only point in the case which at all bears

on this case is that the court held that, "if the treatment is according to a recognized system of surgery, it is not for the court or jury to undertake to determine whether that system is the best among the many that may be adopted by different branches of the medical profession. It is sufficient if the practitioner follow any of the known and recognized systems."

Hesse v. Knippel, 1 Mich. N. P. 109, was an action for damages for malpractice. It is a charge to the jury by a nisi prius judge, and contains nothing that is pertinent to the question here under discussion.

Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W. 228, was a suit for malpractice. The defendant was a clairvoyant, and claimed to diagnose and treat diseases by going into a trance, and while in that state to receive information as to the character and proper mode of treating the disease. The court held that allopathic physicians were competent, in such case, to give an opinion as to the correctness of the diagnosis and treatment. The decision also holds, as the rule is hereinbefore stated, that to constitute a school of medicine it must have rules and principles of practice for the guidance of all its members as respects principles, diagnosis, and remedies, which each member is supposed to observe. That case is cited and quoted from approvingly by Burgess, J., in Longan v. Weltmer, 180 Mo. 322, 64 L. R. A. 969, 103 Am. St. Rep. 573, 79 S. W., loc. cit. 658, to which reference will hereafter be made.

This is the state of adjudication in other jurisdictions. It is to the credit of the gentlemen of the medical profession in this state that very few cases of this character have heretofore reached this court. The first case reported is West v. Martin, 31 Mo. 375, 80 Am. Dec. 107. It was a suit for damages for malpractice. This court, per Ewing, J., said: "Whether errors of judgment will or will not make a surgeon liable in a given case depends not merely upon the fact that he may be ordinarily skilful as such, but whether he has treated the case skilfully or has exercised in its [ordinary] treatment such reasonable skill and diligence as is ordinarily exercised in his profession, for there may be responsibility where there is no neglect, if the error of judgment be so gross as to be inconsistent with the use of that degree of skill that it is the duty of every surgeon to bring to the treatment of a case according to the standard indicated." That case did not involve the question now under consideration.

Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72, was a suit for damages for malpractice in not using proper appliances to hold 70 L. R. A.

the limb in place, after a dislocation of the hip had been reduced. Prior to the treatment by the defendant, the plaintiff had been treated by other doctors of the same school of medicine with the defendant, who had tried to reduce the dislocation by "manipulation," and had failed. The defendant also tried to reduce it by "manipulation” and failed, and then he used pulleys and the Jarvis adjuster to extend the limb so as to permit the head of the femur to "snap" into the socket. There was no question about the diagnosis being correct, nor as to the use of the pulley and Jarvis adjuster, but the whole question was as to whether the defendant used proper appliances to keep it in place. It slipped out of place after the first operation, and a second operation was necessary. There was no question as to the different schools of medicine, as all the experts belonged to the same school of medicine with the defendant.

Wheeler v. Bowles, 163 Mo. 398, 63 S. W. 675, was an action for malpractice in reducing a dislocation of the shoulder. The instructions given stated the general rule as to the duty and liability of physicians and surgeons, which this court quoted and approved. The case did not involve any difference of schools of medicine, as the experts all belonged to the same school with defendant.

Longan v. Weltmer, 180 Mo. 322, 64 L. R. A. 969, 103 Am. St. Rep. 573, 79 S. W. 655, was a suit for damages for malpractice. The defendant claimed to be a "magnetic healer," who healed by a power which he alone possessed. He did not belong to any school of medicine. He objected to the competency of physicians of the allopathic school. He treated the plaintiff for some derangement of the stomach by placing the plaintiff on her back on a padded table, and then put one hand on her stomach, and the other hand under her knees, and bent her so that her knees touched her breast. He then placed her on her stomach on the padded table, and put his left hand on the small of her back over her spine, and his right hand under her knees, and bent her legs up until she screamed with pain. This treatment resulted in the ligaments connecting the backbone and hipbone being ruptured and torn, and the back and spine and pelvic organs being permanently injured. This court quoted approvingly the decision of the supreme court of Wisconsin in Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W. 228, and in speaking of the medical expert testimony said: "While it is true that the physicians who testified on the part of plaintiff did not claim or pretend to know anything about the practice of magnetic healing, they were nevertheless