August 24, 1935


JAMA. 1935;105(8):624. doi:10.1001/jama.1935.02760340070043

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Assault and Battery: Unlawful Practice of Medicine as Constituting.—  Lexchin consulted the defendant osteopath relative to a swelling on his right leg near the ankle. The osteopath punctured the swelling. Later the patient consulted other physicians and was taken to a hospital, where his ailment was diagnosed as leukemia, myelogenous type. The patient ultimately died. The plaintiff as administratrix of his estate sued the osteopath. The declaration, in one count, charged the defendant with malpractice, and, in a second count, with assault and battery, based on the contention that the osteopath, in puncturing the swelling, unlawfully practiced surgery. The trial court gave judgment for the osteopath on both counts and the plaintiff appealed to the Supreme Court of Michigan.There was no evidence of negligence or unskilful treatment, hence the charge of malpractice was not established. With respect to the charge of assault and battery, said the court, the act

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