
    GLOVKA v. FORTUN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    745a. MALPRACTICE — 920. Physicians and Surgeons.
    Where defendant, holding herfeelf out as physician, does not use ordinary still of physician, and injuries result from wrong diagnosis and unskilled treatment of case, she is liable in damages for such injuries.
    Error to Common Pleas.
    Judgment aifirmed.
    C. V. Hull, Cleveland, for Glovka.
    Harry F. Glick, Cleveland, for Fortun.
   FULL TEXT

VICKERY, J.

This action comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.

In the court below, the defendant in error recovered a judgment as plaintiff against the plaintiff in error, who was defendant, in the sum of One Thousand Dollars in an action for pialpractice.

It seems from the record that the defendant held herself out as a physician and had an office equipped like that of a physician and that she had, I think, her name as a physician on the door. The plaintiff being afflicted with a tumor had been told that this woman was a physician and that she could cure her, and so plaintiff presented herself at this so-called Doctor’s office and became a patient and submitted to a diagnosis and treatment. This so-called physician — and the words are used advisedly, because in the record, although she studiously kept away from court, she was finally brought in and admitted that she did not have a license to practice medicine in Ohio; I believe it is claimed now in argument that she "did have a license in some foreign country, but the probabilities are that she had no license anywhere, and was a mere midwife and was engaged perhaps in a practice that is not recognized in Ohio — at any event she diagnosed the plaintiff’s condition as that of pregnancy and resorted to the use of tools to produce an abortion and the injuries were occasioned to the plaintiff by this false diagnosis and wrongful use of the instruments.

Of course, if the record would show that plaintiff went ta this midwife or doctor, or whatever she might be, for the purpose of having an abortion produced, she would be a party to the wrong and would be estopped from claiming damages, but the record shows the opposite of this.

Now it is claimed that the court erred- in his charge to the jury. It seems that there was something said in the charge about this woman holding herself out as a physician when she was not, but whatevef might have been the notion of the court upon that subject, if she undertook as a midwife, as a doctor, or in any way, to diagnose this' woman’s case, if she was negligent and diagnosed it wrong, and used a wrong method of treatment, she would be liable. The record in this case shows that she diagnosed the case wrong. It cannot be possible, that physicians who are skillful in their profession could not tell the difference between a state of pregnancy and a tumor. Failing to diagnose properly such a case would be negligence and in treating this as pregnancy, when as a matter of fact it was a tumor and using methods of procuring an abortion, would constitute negligence for which an action in malpractice would lie. If, of course, there was a state of pregnancy here and the plaintiff below knew it, she would not be entitled to recover. If plaintiff went to the defendant for the purpose of having the defendant cause a miscarriage, she would not be entitled to recover, and in that event the defendant would be guilty of a crime under the laws of the State of Ohio, but that is not the state of the record.

We think this record shows beyond any question that this woman holding herself out as a physician did not use the ordinary skill of r> physician and that the injuries rfesulted from a wrong diagnosis and a wrong unskillful treatment of this case, and there is nothing in the record to show errors which would warrant a reversal of this judgment.

The judgment will, therefore, he affirmed.

(Sullivan PJ. and Levine, J. concur.)  