EST OF TERESA MARIE MOORE BRAFORD V O'CONNOR CHIROPRACTIC CLINICAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF TERESA MARIE MOORE
BRAFORD, by THOMAS BRAFORD, Personal
Representative of the Estate of TERESA MARIE
MOORE BRAFORD, Deceased,
December 12, 2000
Wayne Circuit Court
LC No. 97-718088-NH
O'CONNOR CHIROPRACTIC CLINIC and
JOHN R. O'CONNOR, D.C.,
February 2, 2001
Before: Collins, P.J., and Jansen and Whitbeck, JJ.
Defendants O'Connor Chiropractic Clinic and John R. O'Connor, D.C., appeal by leave
granted the trial court's order denying their motion for summary disposition pursuant to MCR
2.116(C)(8). Plaintiff Thomas Braford, personal representative of the estate of Teresa Braford,
brought a wrongful death action against defendants, alleging that O'Connor committed medical
malpractice when he failed to detect symptoms of Teresa Braford's cardiac problems. We
I. Basic Facts And Procedural History
Teresa Braford first sought chiropractic care from O'Connor in April 1994. Her chief
complaints were recurring headaches as well as numbness in her arms and hands. After listening
to Braford describe her problems and reviewing x-rays, O'Connor concluded that she was
suffering pain due to an injury she sustained in 1975. He then treated her accordingly throughout
April and May 1994.
In July 1994, however, Braford visited the emergency room at Botsford General Hospital
in Farmington Hills because she was experiencing severe pain. The record does not reveal if the
emergency room staff diagnosed her problem. However, she was released with instructions to
consult her chiropractor and a neurologist and to return to the hospital if her symptoms worsened.
Later that same month, Braford visited O'Connor and told him that she had pain in her left
thoracic (chest) area and both arms. She said that she had used ice to quell the pain. O'Connor
concluded that her condition related to her prior cervical spine injury and noted that as soon as he
adjusted her back, her pain subsided. O'Connor last treated Braford in early September 1994, at
which time she voluntarily released herself from his care.
On February 3, 1995, Braford complained to her husband that she was in pain. At her
request, he left work early to go home to be with her. After arriving at home, he went to the
grocery store for a short time. When he returned, he found his wife slumped on the couch. She
was rushed to the hospital where she was pronounced dead. The cause of death was later
determined to be a myocardial infarction.
Plaintiff filed this wrongful death action alleging medical malpractice in June 1997.
After discovery, defendants moved for summary disposition, arguing that they did not have a
duty to diagnose Braford's nonchiropractic ailments and refer her to a medical doctor. The trial
court denied the motion1 and granted plaintiff permission to amend the complaint.2 Defendants
subsequently moved for summary disposition again on the same legal ground and also argued
that a genuine issue of material fact did not exist with regard to whether O'Connor suspected that
Braford suffered from cardiac symptoms. The trial court again denied defendants' motion. It
appears that the trial court found that a genuine issue of material fact existed with regard to
whether O'Connor was aware of Braford's cardiac symptoms and, reiterating its prior ruling,3 that
defendants did have a duty to diagnose Braford's nonchiropractic ailments and refer her to a
medical practitioner.4 We granted leave to appeal and stayed the matter pending resolution of the
II. The Issue On Appeal
This case presents an issue of first impression in Michigan. Even though the Michigan
Supreme Court and this Court have considered the scope of chiropractic practice in a variety of
factual contexts, our research has not revealed a published decision by the appellate courts of this
state setting out the parameters of a chiropractor's duty to refer a patient to another medical
profession. Simply put, we must decide not only whether O'Connor had a duty to recognize and
diagnose Braford's symptoms as a medical, nonchirorpractic problem, but whether he also had to
refer her to a medical practitioner.
III. Standard Of Review
We review de novo whether a trial court properly denied a motion for summary
IV. Legal Standard For Summary Disposition
A trial court must grant a motion for summary disposition when "[t]he opposing party has
failed to state a claim on which relief can be granted."6 A motion for summary disposition
pursuant to MCR 2.116(C)(8) tests whether a claim is sufficient as a matter of law.7 In other
words, the court deciding the motion "determines whether the plaintiff 's pleadings allege a prima
facie case."8 Pursuant to MCR 2.116(G)(5), a court may only consider the pleadings, accepting
all well pleaded facts as true.9 In its analysis, the Court may make reasonable inferences from the
allegations in the pleadings.10
V. The Prima Facie Case And The Standard Of Care
As with any negligence action, to sustain a claim of medical malpractice, a plaintiff must
demonstrate four elements: (1) the standard of care that applies, (2) that the defendant breached
that standard of care, (3) that the plaintiff sustained an injury, and (4) that the defendant's breach
of the standard of care proximately caused the alleged injury.11 Defendants in this case challenge
the first two elements, focusing on the standard of care. Plaintiff 's amended complaint attempted
to define this standard of care by listing twenty-six alleged breaches relating to a chiropractor's
duty to recognize the symptoms of a myocardial infarction and to recommend that a patient
experiencing those symptoms seek medical help with an appropriate medical professional.
The standard of care is not the same in every case, but varies according to the level of
technology and general expertise in the medical community.12 Ordinarily, the standard of care
for general practitioners derives from practice standards in the local community, while the
standard of care for specialists derives from the standards practiced across the nation.13 Also
relevant to the standard of care is the legal scope of a practitioner's ability to care for patients at
MCL 333.16401; MSA 14.15(16401) defines this scope of care for chiropractors by
providing in relevant part:
(b) "Practice of chiropractic" means that discipline within the healing arts
which deals with the nervous system and its relationship to the spinal column and
its interrelationship with other body systems. Practice of chiropractic includes:
(i) Diagnosis, including spinal analysis, to determine the existence of
spinal subluxations or misalignments that produce nerve interference, indicating
the necessity for chiropractic care.
(ii) The adjustment of spinal subluxations or misalignments and related
bones and tissues for the establishment of neural integrity utilizing the inherent
recuperative powers of the body for restoration and maintenance of health.
(iii) The use of analytical instruments, nutritional advice, rehabilitative
exercise and adjustment apparatus regulated by rules promulgated by the board
pursuant to section 16423 and the use of x-ray machines in the examination of
patients for the purpose of locating spinal subluxations or misaligned vertebrae of
the human spine. The practice of chiropractic does not include the performance of
incisive surgical procedures, the performance of an invasive procedure requiring
instrumentation, or the dispensing or prescription of drugs or medicine.
While relevant, this statute does not specifically define the standard of care for chiropractors.14
VI. Early Case Law
Case law serves as a useful starting point in our effort to define the scope of a
chiropractor's standard of care in order to determine whether O'Connor violated that standard of
care with Braford. As early as 1925, which was before the Legislature enacted MCL 333.16401;
MSA 14.15(16401), the Michigan Supreme Court held in Janssen v Mulder15 that when a
chiropractor treats a patient, the chiropractor has a duty "to use reasonable care and skill" to
determine if the patient's ailments can be treated with chiropractic therapy at all. If the patient's
problems cannot be treated with chiropractic techniques, the chiropractor's duty is to advise the
patient that chiropractic treatment was not available so that the patient could consult a medical
practitioner with appropriate expertise.16 The Court's decision in Janssen stopped short of saying
that a chiropractor had a duty to recognize the nature of the problem that was outside the scope of
ordinary chiropractic practice and to refer the patient to an appropriate practitioner in another
field of medicine. Rather, the implication in Janssen was that a chiropractor would satisfy the
standard of care by recognizing that the patient's problem was not a chiropractic problem and
then informing the patient of that narrow fact so that the patient could choose what step to take
Fifty years later, in Tschirhart v Pethtel,17 this Court held that a chiropractor could be
held liable for malpractice for failing to diagnose a condition that could not be treated with
chiropractic care and to refer the patient to a medical doctor. The Tschirhart Court concluded
that there was sufficient evidence to sustain the jury's verdict in favor of the plaintiff because the
evidence suggested that the defendant knew that a herniated disk might be causing the plaintiff 's
symptoms, the defendant knew this was a condition that chiropractic techniques could not treat,
and the defendant still failed to refer the plaintiff to a medical doctor.18 Although defining the
scope of chiropractic care beyond the standard set in Janssen, the facts of Tschirhart justified
liability because the defendant actually knew that the problem should be treated by a physician
and withheld that information to his patient's detriment.
This Court in Attorney General v Recorder's Court Judge,19 a case decided under the
statute20 that preceded MCL 333.16401; MSA 14.15(16401), reached a decision that gave a more
substantive, albeit narrow, definition to the standard of care for chiropractors. This Court
determined that the Legislature intended to prohibit chiropractors from engaging in general
diagnostic techniques such as throat cultures and urine samples.21 Rather, chiropractors could
only use methods that would reveal the existence of misaligned or displaced vertebrae.22 While
the Attorney General opinion focused on the tests the chiropractor administered, the implication
is that the Court concurrently limited the duty to diagnose various ailments by reducing
chiropractors' ability to detect those ailments using various tests. Essentially, the Court began to
distinguish between medicine and chiropractic care in a more detailed manner.
This Court revisited the question of a chiropractor's duty of care in Cotter v Blue Cross &
Blue Shield of Michigan,23 where it again endorsed a narrow interpretation of the statute24
defining a chiropractor's ability to treat patients. The Court held that general diagnostic x-rays,
examinations, and other services unrelated to diagnosing spinal ailments were not within the
lawful scope of chiropractic practice.25
VII. Beno And Its Progeny
More recently, the Michigan Supreme Court examined the scope of chiropractic practice
in Attorney General v Beno.26 The dividing line between medical and chiropractic care was at
the heart of the legal issue in Beno, in which the Court had to determine whether a chiropractor
was unlawfully practicing medicine by performing, among other practices, general physical
examinations and related diagnostic tests.27 The defendant in Beno argued that the section of the
Public Health Code dealing with chiropractors28 permitted him to examine areas of the body
other than the spine in order to determine whether spinal subluxations or misalignments were
producing nerve interference—a process defined as "differential diagnosis."29 Once again, the
Court narrowly construed the scope of chiropractic practice by examining the language in the
statute and observing that the Legislature used precise terms to define chiropractic care while
using expansive language to delimit medical practice.30 For the first time, however, the Court
also added a public policy element to its approach to defining the scope of chiropractic practice,
Where there are hazy lines between the jurisdiction of health-care
professions, we think the public health and safety is best protected by more strictly
construing the jurisdiction of the more specialized and limited health profession in
favor of the more comprehensively trained and licensed profession. It would
seem more in keeping with public protection to have the broader discipline
making diagnostic observations about those things within the specialties of the
narrower discipline, rather than vice versa.
Ultimately, the Court concluded that the ability to perform a differential diagnosis would be
beneficial to some patients; however, the Public Health Code did not permit chiropractors to
perform a differential diagnosis because "to allow this kind of diagnosis would require the
chiropractor to recognize other maladies that are possible in many other parts of the anatomy and,
in such case, lead the patient to believe that a definitive diagnosis relating to those other maladies
that may be causing symptoms has been received."32
This Court adhered to the reasoning in Beno in Wengel v Herfert33 when it addressed the
plaintiff 's argument that the defendant chiropractor negligently failed to examine him to rule out
a variety of health conditions.34 The Wengel Court held that the chiropractor could not be held
liable for failing to do something that the chiropractic statute prohibited.35 Nothing in Wengel
addressed the existence or nonexistence of an affirmative duty on the part of chiropractors to
warn their patients of the limits of the practice of chiropractic. Further, in Hofmann v Auto Club
Ins Ass'n,36 this Court noted that a chiropractor's authority to analyze and monitor the body's
physiology is necessarily limited to the spinal area; to hold otherwise would allow the defendant
to perform a differential diagnosis, which Beno barred.
VIII. Applying Beno And Wengel
In our view, the Michigan Supreme Court's reasoning in Beno applies here.
gravamen of plaintiff 's complaint is that defendants should be held liable for O'Connor's failure
to recognize and diagnose Braford's nonspinal ailments and refer her to another health-care
professional. Beno dealt with the scope of chiropractic practice in a different factual context and
did not involve a malpractice claim. Instead, it dealt with the proper, i.e., legal, scope of
chiropractic care. However, in many ways, the scope of chiropractic care and the standard of
care are two sides of the same coin; the former identifies what a chiropractor may or may not do
and the latter establishes what the chiropractor must do. The Beno Court's reasoning on the
scope of chiropractic care is sound and guides our inquiry in the present case, even with respect
to the standard of care.
Plaintiff specifically argues that one part of O'Connor's negligence stems from his failure
to realize that Braford's symptoms were not related to a subluxation or misalignment of her spine.
In other words, he claims O'Connor had an obligation to perform a differential diagnosis to find
the reason why Braford was in pain so that he could then conclude whether the problem could be
treated with chiropractic techniques. Because Beno rejected the notion that chiropractors should
be able to examine and diagnose nonspinal ailments during the course of chiropractic treatment,
this Court in Wengel, supra, concluded that they cannot be held accountable for failing to
perform this service. We reaffirm this conclusion.
O'Connor's ability to refer Braford to a physician for treatment of her cardiac symptoms
directly depended on his ability to determine that she had those symptoms and that they signaled
an illness that could not be treated with chiropractic care. This is not merely a question whether
O'Connor, as an individual, had the skills to recognize symptoms of an impending heart attack.
As a matter of law, O'Connor could not perform the diagnostic tests and other examinations
necessary to reach this conclusion. Thus, it would be illogical to conclude that he not only had to
come to the conclusion on the basis of the symptoms he observed in Braford, but that he had to
know enough about the underlying medical problem to refer her to an appropriate practitioner in
another field of medicine. 37 Therefore, we conclude that O'Connor did not have a duty to refer
Braford for treatment of her underlying heart problem. Further, we conclude that, because he
could not perform the diagnostic tests and other examinations necessary to diagnose an
impending heart attack, he did not have a duty to recognize and diagnose Braford's cardiac
Presuming all factual allegations pleaded by plaintiff to be true, plaintiff failed to state a
claim on which relief can be granted. We conclude that (1) O'Connor did not have a duty to refer
Braford to a qualified medical practitioner for treatment of her underlying heart problem and (2)
O'Connor did not have a duty to recognize and diagnose Braford's cardiac symptoms. Such
conduct would require a chiropractor to undertake a medical analysis—specifically a differential
diagnosis—and make medical determinations that the licensing statute does not permit.
Therefore, the trial court erred in denying defendants' motion for summary disposition.
/s/ Jeffrey G. Collins
/s/ Kathleen Jansen
/s/ William C. Whitbeck
When the trial court rendered its opinion denying defendants' motion from the bench, it first
discussed Attorney General v Beno, 422 Mich 293; 373 NW2d 544 (1985). The trial court then
moved to an extensive discussion of this Court's recent unpublished opinion in Cobb v Beatty
Chiropractic Clinic (On Rehearing), unpublished opinion of the Court of Appeals, issued
February 6, 1998 (Docket No. 187421). In that case, this Court found that a chiropractor did not
have a duty to (1) "suspect" that a patient was suffering from a serious medical condition or (2) to
refer the patient to a qualified medical practitioner. The trial court found a "problem" with the
Cobb decision and stated that "if Cobb stands for the proposition that a chiropractor doesn't even
have to worry about suspecting something far short of diagnosing, well I wouldn't follow that
opinion. That doesn't promote the public safety." The trial court went on to say that Cobb was
"not only bad law, it's bad policy." The trial court, although apparently meaning to draw some
distinctions between "suspecting" a cardiovascular issue and "referring" the patient for medical
treatment, declined to follow this Court's decision in Cobb. Instead, the trial court, while
apparently believing that a plaintiff need not even allege a duty to refer to make out a cause of
action, stated that when a chiropractor makes a chiropractic diagnosis, "he'd better be right" and
found that the complaint stated a cause of action.
The parties appear to disagree about the substance, and the extent, of the amended complaint.
Defendants note that paragraph 18 of the amended complaint averred that O'Connor "never
referred Plaintiff to a medical doctor, an internist, or a cardiologist or advised her these
symptoms may not have been related to a subluxation or spinal misalignment." Plaintiff notes
that paragraph 21(t) of the amended complaint asserted that defendants provided "unnecessary
and contraindicated chiropractic treatment for a condition that was not a chiropractic problem but
was in fact of a cardiovascular nature" and that paragraph 21(e) of the amended complaint
alleged a breach of duty for the failure to refer Braford to a "licensed physician." While we grant
that there is a considerable variation from the language of the complaint to the language of the
amended complaint, we think it fair to conclude that, despite this variation, both complaints
present the issues whether O'Connor had a duty to recognize and diagnose Braford's symptoms as
a medical, nonchiropractic problem and whether he had to refer her to a medical practitioner.
The trial court stated, "There are two parts to your Motion and I have already ruled on one of
The trial court again rendered its opinion denying defendants' motion from the bench and was
again less than clear in its basis for its second ruling. The trial court again appeared to take issue
with this Court's decision in Cobb, supra. When plaintiff's attorney argued that there was
evidence that Braford "presented with [a] cardiovascular complaint," the trial court commented
that "the two lines converge into the next one." We are at a loss to understand the meaning of
this comment within the context of this case. However, there is no question that the trial court
denied defendants' motion for summary disposition and we think it fair to conclude that it did so
basically on the same grounds as it denied defendants' original motion for summary disposition.
We also grant that, as we have noted above, those grounds were less than crystal clear on the
record. It is clear, however, that the trial court disagreed with this Court's decision in Cobb,
supra. In the trial court's defense, according to MCR 7.215(C)(1), because our decision in Cobb
was an unpublished opinion, it was not binding precedent under the rule of stare decisis.
Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999).
Stott v Wayne Co, 224 Mich App 422, 426; 569 NW2d 633 (1997), aff'd on other grounds 459
Mich 999 (1999).
Garvelink v Detroit News, 206 Mich App 604, 608; 522 NW2d 883 (1994).
New Hampshire Ins Group v Labombard, 155 Mich App 369, 372; 399 NW2d 527 (1986).
Harrison v Director of Dep't of Corrections, 194 Mich App 446, 449-450; 487 NW2d 799
Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994).
Cudnik v William Beaumont Hosp, 207 Mich App 378, 383; 525 NW2d 891 (1994).
Wengel v Herfert, 189 Mich App 427, 430; 473 NW2d 741 (1991).
Janssen v Mulder, 232 Mich 183, 192-193; 205 NW 159 (1925).
Tschirhart v Pethtel, 61 Mich App 581, 584-585; 233 NW2d 93 (1975).
Attorney General v Recorder's Court Judge, 92 Mich App 42, 55-56; 285 NW2d 53 (1979).
MCL 338.156; MSA 14.596, repealed by 1978 PA 368, § 25101.
Attorney General, supra.
Cotter v Blue Cross & Blue Shield of Michigan, 94 Mich App 129, 136; 288 NW2d 594
MCL 338.156; MSA 14.596, repealed by 1978 PA 368, § 25101.
Attorney General v Beno, 422 Mich 293; 373 NW2d 544 (1985).
Id. at 297-300.
MCL 333.16401; MSA 14.15(16401).
Beno, supra at 306, 311-312.
Id. at 311-312.
Id. at 312 (citations omitted).
Id. at 313.
Wengel v Herfert, 189 Mich App 427, 429-432; 473 NW2d 741 (1991).
Id. at 430.
Id. at 431-432.
Hofmann v Auto Club Ins Ass'n, 211 Mich App 55, 87; 535 NW2d 529 (1995).
Plaintiff directs us to foreign authority in support of his argument that O'Connor owed Teresa
Braford a duty to recognize the nature of her nonchiropractic ailments, cease treatment, and refer
her to a doctor accordingly. See Roberson v Counselman, 235 Kan 1006, 1010; 686 P2d 149
(1984); Mostrom v Pettibon, 25 Wash App 158, 161; 607 P2d 864 (1980); Ison v McFall, 55
Tenn App 326, 359-360; 400 SW2d 243 (1964); Rosenberg v Cahill, 99 NJ 318; 492 A2d 371
(1985); see also anno: Liability of chiropractors and other drugless practitioners for medical
malpractice, 77 ALR4th 273; anno: Chiropractors liability for failure to refer patient to medical
practitioner, 58 ALR3d 590; anno: Scope of practice of chiropractic, 16 ALR4th 58. We have
reviewed these authorities and find them unpersuasive in light of the Michigan Supreme Court's
narrow interpretation of the scope of chiropractic practice in Beno.