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Klimko v. Rose

Decided: November 20, 1980.

GEORGE KLIMKO AND THERESA KLIMKO, PLAINTIFFS-APPELLANTS,
v.
ANGELO C. ROSE, DEFENDANT-RESPONDENT



On appeal from Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Wilentz, C.J.

Wilentz

[84 NJ Page 497] Plaintiffs, George and Theresa Klimko, brought this action against Dr. Rose, a chiropractor, for injuries to Mr. Klimko including a stroke and temporary paralysis, which allegedly resulted from chiropractic adjustments performed upon him by defendant. Plaintiff's only expert witness was a medical doctor. For reasons discussed below he was unavailable for cross-examination, and his direct testimony was therefore

stricken. Believing that he had no case without the stricken testimony, Klimko moved for a mistrial. The trial court denied the motion, and after some additional direct testimony, granted defendant's motion for involuntary dismissal. The Appellate Division's affirmance of that dismissal is now before us for review.

In September 1973, George Klimko sought treatment from defendant for back and neck pains that developed after he had spent Labor Day weekend working around his back yard.*fn1 Both he and his wife had seen Dr. Rose for back pains on prior occasions. Dr. Rose, as he had before, manipulated Klimko's spine while Klimko lay face down on a table. On a second visit, in addition to the manipulation familiar to Klimko, Dr. Rose performed a different treatment. He instructed Klimko to lie on his left side. Dr. Rose then placed one hand under the left side of plaintiff's neck and with the other hand thrust down on the right side of plaintiff's neck. After this treatment Dr. Rose told the plaintiff to sit up, which he did. He felt dizzy and sweaty, and so told the doctor, who told him to ". . . sit there a while because some people are affected this way, it will wear off." Dr. Rose then told him to go out to the waiting room. Plaintiff remained several minutes; although he still felt dizzy, he decided to go home.

When he arrived home his wife noticed that his skin was "sort of a gray color and his eyes didn't look very clear." Klimko was still dizzy, had no appetite, refused lunch and went to sleep immediately. When he awoke he still did not feel quite right. Mrs. Klimko, concerned about the continued dizziness, called Dr. Rose and advised him of her husband's condition. Dr. Rose told her that plaintiff should come back to see him that night. During that evening visit, on September 13, Dr. Rose performed

the regular back adjustment. At this point the dizziness had disappeared, but Klimko was still suffering the pain and tightness in his back.

The symptoms of tightness and pain in his back persisted, and Klimko visited Dr. Rose again. Dr. Rose performed the regular adjustment, moving the vertebrae with his hands starting in Klimko's lower back and continuing up to the shoulder blades. Klimko suffered no dizziness or sweatiness during this treatment or when he sat up after it.

During the next and last visit, the regular adjustment was performed. In addition, Dr. Rose again thrust against the right side of Klimko's neck precisely as he had on the second visit. When plaintiff sat up, he felt not only dizzy and sweaty but nauseated as well. After sitting in the waiting room for a few minutes, he collapsed. Dr. Rose loosened Klimko's clothing, ordered his nurse to take Klimko's blood pressure, and summoned an ambulance. He concluded that Klimko had suffered a stroke.

Klimko was hospitalized for 16 days. He was paralyzed on his left side and unable to speak. He lost the use of his left arm completely for a period of time and was out of work for 27 weeks. Although the severe symptoms had receded, plaintiff continued to suffer some permanent residual effects.

At trial Klimko's expert witness, Dr. Gruber, a physician, testified that the cause of the stroke was the pressure applied by Dr. Rose to Klimko's neck. He explained that the brain is supplied with oxygen by two arteries, one on each side of the neck running up to the brain, and that these arteries are often of different sizes. In Klimko's case, the one on the right side was much larger than normal, the one on the left much smaller. Thus when Dr. Rose applied the pressure or thrust to the right side of the neck the flow of blood to the brain from this larger artery was completely stopped. Since the artery on the left side was so much smaller, the ...


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