
    Henry H. DuBois, Resp’t, v. William M. Decker, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 15, 1891.)
    
    1. Physician—Malpractice.
    While a physician and surgeon will not be held liable for mere errors in judgment, his judgment must be founded upon his intelligence. He engages to bring to toe treatment of his patient care, skill and knowledge, and should know the probable consequence following from the crushing of toe bones and tissues of the foot, and where he waits ten days before amputating, and then after six days gangrene having set in amputates again and neglects to save flap enough to cover the end of the bone, the question of his liability is one for the jury.
    2. Same—Failure to obey physician’s instructions.
    Whilst the removing of the limb from the position in which it was placed may have produced the bleeding and thus to some extent impeded the healing, and his leaving the hospital at the time had aggravated the difficulty, these facts would only tend to mitigate the damages and would not relieve defendant from the consequences of previous neglect or unskillful treatment.
    3. Same.
    The fact that a surgeon is employed by the city as one of the physicians to attend and treat toe patients that should be sent to the alms-house, and that he is paid by the city instead of the patient, does not relieve him from the duty of exercising ordinary care and skill.
    Appeal from a judgment of the general term of the supreme court, third department, affirming a judgment entered upon a verdict at the Ulster circuit
    
      A. T. Clearwater, for app’lt; William D. Brinnier and S. T. Hull, for resp’t
    
      
       Affirming 22 St. Rep., 274.
    
   Haight, J.

This action was brought to recover damages of the defendant, a physician and surgeon, for alleged malpractice suffered by the plaintiff whilst undergoing treatment as a patient.

On the first day of December, 1889, the plaintiff undertook to jump onto an engine of the Ulster & Delaware railroad in the city of Kingston, and in doing so slipped, and his left foot was caught by the tender and a portion thereof crushed. Being destitute he was taken to the city almshouse, where he was treated by the defendant, who was one of the city physicians, having the care of the patients therein and who was employed for that purpose. Thereafter, and on the 10th day of December, he amputated the plaintiff's leg above the ankle joint, and six or seven days thereafter, gangrene having set in, he again amputated the leg at the knee joint. After the second amputation the leg did not properly heal, but became a running sore, and at the time of the trial the bone protruded some three or four inches.

Evidence was given upon the trial from which the jury might find that the bones of the foot were so crushed that immediate amputation of the injured portions was necessary, and that the appearance of gangrene was in consequence of the delay of ten days in the operation; and that in the second operation the defendant neglected to save flap enough to cover the end of the limb and bone, and that the subsequent protrusion of the bone was owing to„ this neglect

The question of the defendant’s liability consequently became-one for the jury. We are aware that he claimed to have waited ten days before operating for the purpose of seeing whether the foot could not be saved, and that a physician and surgeon will not be held liable for mere errors in judgment. But his judgment must be founded upon his intelligence. He engages tabling to the treatment of his patient care, skill and knowledge, and he should have known the probable consequences that would follow from the crushing of the bones and tissues of the foot.

In submitting the case to the jury, the defendant asked the court to charge that “ if the plaintiff did not obey the defendant’s-instructions, and this contributed to an aggravation of the injury, the plaintiff cannot recover.” The court declined to charge “ in the-form in which the request was put,” and an exception was taken by the defendant.

It appears from the testimony of the defendant that after the second amputation he dressed the stump and put the plaintiff in position by elevating the limb so as to prevent hemorrhage and too much pressure upon the arteries; that the plaintiff did not keep in the position m which he was placed and got his leg to bleeding, and that he presumed that this bleeding interfered with the healing of the limb. It also appears that sometime after the second amputation the plaintiff refused and neglected to take the medicine that was left for him by the defendant, and that subsequently, after the defendant had ordered him to be removed-to another room so as to avoid liability of contracting erysipelas from a patient that had been brought to the alms-house afflicted: with that disease, he left and went away.

Whilst the removing of the limb from the position in which it. was placed may have produced the bleeding, and thus, to some extent, impeding the healing, and his going away at the time that he did may also have further aggravated the difficulty, these facts would only tend to mitigate the damages and would not relieve the defendant from the consequence of previous neglect or unskillful treatment. As to the prescription, we are not told what it was or what it was for, and the jury was, therefore, unable to determine whether or not the condition of the patient would have been materially changed by its use.

The request to charge, as we have seen, was to the effect that if the plaintiff did not obey the instructions, and this contributed' in aggravation of the injury, the plaintiff cannot recover. This was too broad if the jury found that the defendant was guilty of malpractice prior to the disobedience complained of.

In the case of Carpenter v. Blake, 75 N. Y., 12, the court was requested to charge that if the plaintiff was guilty of any negligence in the management of the arm through or without the fault of the attending surgeon, after the defendant ceased to have charge of the case, and such negligence contributed in any material degree to produce the present bad condition of the arm, the defendant was not responsible. This request was refused, and it was held properly, for the reason that the request was too broad ; that if there had been subsequent negligence, the cause of action for defendant’s negligence would simply go in mitigation of damages.

In the case of McCandless v. McWha, 22 Pa. St., 261-272, Lewis, J., in delivering the opinion of the court, says: “ A piatient is bound to submit to such treatment as his surgeon prescribes, provided the treatment be such as a surgeon of ordinary slcill would adopt or sanction ; but if it be painful, injurious and unskillful, he is not bound to peril his health, and perhaps his life, by submission to it. It follows that before the surgeon can shift the responsibility from himself to the patient, on the ground that the latter” did not submit to the course recommended, it must be shown that the prescriptions were proper and adapted to the end in view. It is incumbent on the surgeon to satisfy the jury on this point, and in doing so he has the right to call to his aid the science and experience of his professional brethren. It will not do to cover his own want of skill by raising a mist out of the refractory disposition of the patient.”

The defendant moved todismissthe complaint upon the ground that it failed to show a contract relation between the parties whereby the defendant was employed to attend the plaintiff, and that no facts were alleged showing it to be the duty of the defendant to treat him in a skillful manner. This motion being denied, the defendant asked the court to charge that as the defendant treated the plaintiff gratuitously he is liable, if at all, only for gross negligence ; which was refused.

It has been held that the fact that a physician or surgeon renders services gratuitously does not affect his duty to exercise reasonable and ordinary care, skill and diligence. McCandless v. McWha, 22 Pa. St., 261-269; McNevins v. Lowe, 40 Ill., 209; Gladwell v. Steggall, 5 Bing. N. C., 733.

But we do not deem it necessary to consider or determine this question, for it appears that the plaintiff’s services were not gratuitously rendered. He was employed by the city as one of t the physicians to attend and treat the patients that should be sent to the almshouse. The fact that he was paid by the city instead of the plaintiff did not relieve him from the duty to exercise ordinary care and skill.

Exceptions were taken to the admission and rejection of evidence. We have examined them and find none that require a new trial.

The judgment should be affirmed, with costs.

All concur, except Parker, J., not sitting.  