
    BECKER v. JANINSKI.
    
      N. Y. Common Pleas, Trial Term;
    
    
      April, 1891.
    1. Negligence ; physician''s liability for malpractice.] A physician does not contract to cure a patient, but only undertakes to exercise due skill and care in treating him.
    2. The same.] The due skill and care required by law of a physician is that reasonable degree of skill and care which is ordinarily exercised by the profession.
    3. The samel] A physician is not responsible for an error of judgment, unless it is so gross as to imply a want of due care and skill.
    4. The same ; withdrawing attendancel] When a physician engages to attend a patient without limitation of time, he cannot cease his visits, except with the patient’s consent, unless he give the patient timely notice so that he may employ another doctor, or the patient’s condition is such as to require medical treatment no longer. Of the latter condition the physician must judge at his peril.
    5. Thesa?ne; gratuitous services.] The same degree of skill and care is required of a physician, whether he serve gratuitously or for compensation.
    
    6. The same; contributory 'negligence.] Disobedience of the patient to the orders of his physician will defeat an action for malpractice, if the injury complained of was the effect of the disobedience alone, or . n combination with the physician’s want of care and skill.
    
      7. The same; damages.] A patient, whose injury is attributable to the physician’s maltreatment alone, can recover for such injury, but not for the consequences of the maltreatment that may have been aggravated by his own neglect and carelessness.
    
      Husband and •wife.] In an action for personal injuries, a married woman may recover for inability to labor on her own account occasioned by.the injury; but not for loss of earnings, unless she was actually engaged in business or performing services on her sole and separate account.
    
    Action by Rosa Becker, a married woman, against Janinski for malpractice in treating plaintiff for a miscarriage. The defendant’s services were gratuitous. He was retained for no definite period, and when he ceased to visit plaintiff she was not cured of her malady. The injury was alleged to have been occasioned by defendant’s abandonment of plaintiff and his unskillful treatment of her.
    
      M. Bayersdorfer, for plaintiff.
    
      Woodward & Buckley, for defendant.
    
      
       See note at the end of this case.
    
    
      
       See L. 1890, c. 51, Code Civ. Pro. § 450, as am’d thereby, Bennett v. Bennett, 116 N. Y. 584; Hook v. Kenyon, 55 Hun, 598 ; Campbell v. Perry, 9 N. Y. Supp. 330; s. c., less fully, 29 State Rep. 670; Blaechinska v. Howard Mission, etc., 56 Hun, 322 ; s. c., 31 State Rep. 159 ; 9 N. Y. Supp. 679; Miníck v. City of Troy, 83 N. Y. 514 ; aff’g 19 Hun, 253 ; Burnham v. Webster, 3 State Rep. 530 . s. c., 54 Super. Ct. (J. & S.), 30; Brooks v. Schwerin, 54 N. Y. 343 ; Filer v. N. Y. Central R. Co., 49 Id. 47. And as to concurrent actions for the same wrong see note in 21 Abb. N. C. 7.
    
   Pryor, J.,

instructed the jury as follows : The plaintiff, formerly a patient of the defendant physician, sues him for malpractice ; that is to recover damages for alleged negligence and unskillfulness in his treatment of her. The employment of defendant by the plaintiff is not disputed; and the issues which you are to determine are : whether the defendant treated the plaintiff unskillfully or negligently; and if he did so treat her, to what amount of damages she is entitled as compensation for any injuries she has sustained from such unskillful or negligent treatment.

In order to entitle plaintiff to a verdict in her favor she must prove her cause of action to your satisfaction ; in other words, you pust be convinced by the evidence in the case, that the defendant did treat the plaintiff unskillfully or negligently, to her injury. The law presumes of the defendant as of every other person, that he faithfully and fully discharged his duty; and before you can find a verdict against him this presumption must be overcome, by satisfactory proof that he failed to perform his .duty in the particulars imputed to him by the complaint.

Before you can find that the defendant failed to discharge his duty to the plaintiff, you must know, of course, what that duty was ; and what that duty was, it is for the court to instruct you. The law has fixed and prescribed the duty of a physician to his patient; and the standard of a physician’s duty to his patient being a rule of law, you . must, in determining your verdict, accept and act upon the definition of that duty as propounded to you by the court.

In the first place, then, gentlemen, a physician does not contract to cure a patient—he is not an insurer— but his undertaking is only, and the duty which the law imposes upon him is only, to exercise due skill and due care in the treatment of his patient. But, as he cannot exercise due skill unless he possess it, and the law requires that a physician shall have and shall exert due skill in the treatment of his patient. So that as, on the one hand, he cannot exercise the skill which he does not possess, on the other, no matter how consummate his skill, if in the particular case he fail to apply the degree of skill which the law exacts of him.

But, the law requires of a physician not only due skill but due care also in the treatment of his patient ; and he is as responsible for the want of due care as of due skill.

What then are that due skill and that due care,which the law requires of a physician in the treatment of a patient ?

As a physician is not bound in law to cure his patient, so neither is he required to treat him with the greatest skill or the greatest care. On the other hand, a physician does not discharge his legal duty to a patient, by treating him merely with little skill or with slight care. Between these extremes lies the duty which the law requires of a physician in the treatment of a patient; and it is this: the law exacts of a physician, in the treatment of a patient, that reasonable degree of skill and that reasonable degree of care, which are ordinarily possessed and exercised by the profession; and he is liable in damages only for injuries resulting to the patient from the lack of either of these requisites. Your knowledge of the limitations upon the human faculties will enable you readily to understand and accept what I now say to you, namely:—that, as the best instructed and the most vigilant intellect is not beyond the possibility of mistake, so a physician is not responsible for an error of judgment in the treatment of a patient, unless it be so gross as to imply a want of that skill or that care which I have just defined to you as constituting the legal duty of a physician. It is enough if a competent physician exercise his best judgment in the case.

Applying the legal standard of a physician’s obligation to the evidence in the case, it is for you to determine whether the defendant failed in the discharge of his duty to the plaintiff.

The complaint imputes to the defendant a violation. of that duty in two particulars, namely, neglect of the plaintiff, and unskillful treatment of her.

The defendant was called to treat the plaintiff for a miscarriage. He visited her the day of her misfortune and the two succeeding days ; but he never came after-wards. It is not denied that when he ceased his visits she was not cured of her malady. His retainer was for no definite period. Upon this state of fact the question is. did the defendant violate his duty to the plaintiff by his abandonment of her ? When a physician engages, as here, to attend a patient without limitation of time, he cannot cease his visits except, first, with the consent of the patient, or secondly upon giving the patient timely notice so that he may employ another doctor; or thirdly, when the condition of the patient is such as no longer to require medical treatment—and of that condition the physician must judge-at his peril. Here it is not shown that the plaintiff was no longer in need of medical attention ; so that the-defendant had no right to discontinue his attendance, unless either the plaintiff consented or he gave her-proper notice ; and if he left her without such consent, or such notice he was guilty of grave professional negligence. The defendant swears that, at h-is last visit,, he notified the plaintiff that he was going out of town,, and indicated to her a physician who would attend her.in his stead. If this statement'be true, the defendant’s absence is excused, and you must exonerate him from this imputation of neglect. But, the defendant’s story is denied by the plaintiff’s witnesses, and their testimony tends to prove that he abandoned her without, leave and without notice. It is for you, gentlemen, to say what the fact is ; and according as you find the-fact in favor of the plaintiff or of the defendant, youiverdict, on this question of negligence, will be for the-; plaintiff or for the defendant.

Independently of the defendant’s alleged wrongful! abandonment of her, the plaintiff charges that during his three days’ attendance upon her he treated her unskillfully. It is conceded that when he ceased his visits to her, she had not been delivered of the “ afterbirth,” and that he was aware of the fact. It is further conceded that he made no attempt, by mechanical means, to relieve her of the “ after-birth.” You remember the reasons he gave for not making such an attempt. But you will also recollect the testimony of the plaintiff and her witness to the effect that the defendant made no examination of the plaintiff, that he said there was no after-birth ” in the case, and that the plaintiff was “ all right.” In fact the plaintiff was subsequently delivered of the “ after-birth.” It is for you to say which of the contradictory stories is the fact; whether he was ignorant of the existence of the after-birth and whether in the exercise of the skill with which the law required him to treat the plaintiff, he should have made an effort to relieve her of the “ after-birth.” In a word, it is for you to say whether the defendant’s treatment of the plaintiff was skillful or unskillful, and according as you find the treatment skillful or unskillful must your verdict upon this question be for the plaintiff or for the defendant.

It appears that the plaintiff was a charity patient; that the defendant was treating her gratuitously. But I charge you that this fact in no respect qualifies the liability of the defendant. Whether the patient be a pauper or a millionaire, whether he be treated gratuitously or for reward, the physician owes him precisely the same measure of duty, and the same degree of skill and care. He may decline to respond to the call of a patient unable to compensate him; but if he undertake the treatment of such a patient, he cannot defeat a suit for malpractice, nor mitigate a recovery against him, upon the' principle that the skill and care required of a physician are proportioned to his expectation of pecuniary recompense. Such a rule would be of the most mischievous consequence; would make the health and life of the indigent the sport of reckless experiment and cruel indifference. Even though, therefore, the defendant was not to be paid for his attendance, he was still bound in law to treat the plaintiff with the requisite skill and the requisite care.

Evidence has been given tending to show that the plaintiff disregarded and disobeyed an injunction imposed upon her by the defendant to “ keep quiet in bed ”—that notwithstanding such admonition she got out of her bed, went into another room and subjected herself to some exertion.

Gentlemen, in a case such as this, all the obligation is not upon the physician ; but the patient also has duties to discharge. In particular, the patient must obey the orders and follow the directions of the physician ; and if he disobey such orders or neglect such directions, he cannot hold the physician responsible for the consequences of such disobedience or neglect. Accordingly, I charge you, that if you find that the injury of which the plaintiff complains was the effect of her own carelessness or .neglect alone, or was the effect of the defendant’s negligence or want of skill in combination and co-operation with her own carelessness or neglect, she cannot recover. Her contributory negligence would defeat the action.

If, then, you find that the defendant did not treat the plaintiff with the requisite "skill or the requisite care, and that no neglect or carelessness on the part of the plaintiff contributed to cause the injury of which she complains, your verdict must be for the plaintiff. But, on the other hand, if you find that the defendant did treat the plaintiff both with the requisite skill and the requisite care, or that the plaintiff’s own neglect or carelessness concurred in causing her injury, your verdict must be for the defendant.

At this point I must direct your attention to a phase of the case not yet adverted to. The plaintiff suffered a miscarriage ; but it is not pretended that the defendant is in any way responsible for that miscarriage. Now, it is for you to determine whether the injuries of which the plaintiff complains, were due to the miscarriage, or to maltreatment by the defendant. If you find that the sole cause of the plaintiff’s injuries was the miscarriage, your verdict must be for the defendant.

If your verdict be for the plaintiff, you must award her such an amount of damages—not exceeding $50,000-—as you believe will be a fair and just compensation for all the injuries, past, present and prospective, which you find to be the consequences of the defendant’s, maltreatment of her. Whatever expense she has incurred—whatever suffering she has undergone or will undergo—whatever inability to labor on her own account has been inflicted upon her, all those things, in so far as they are the consequences of the defendant’s maltreatment of the plaintiff, you may consider and include in your estimate of the compensation to be. allowed her.

But here I must caution you against three possible-errors in the computation of the damages, should you render a verdict for the plaintiff. The first is, the including in the damages the injuries and suffering which the plaintiff sustains solely and exclusively from the miscarriage. The defendant not being responsible-for the miscarriage, he is not to be made liable for any of its consequences. If liable at all, he is liable only for the effects of his maltreatment of the plaintiff. So that, should you find it impossible to distinguish between the consequences of the miscarriage and the consequences of the maltreatment—should you be unable to find upon the evidence, that the plaintiff has suffered any injury distinctively due to maltreatment,. you will award only nominal damages against the defendant.

In the second place, it may be that although the plaintiff’s injury was due solely and exclusively to the defendant’s maltreatment, yet the consequences of that maltreatment may have been aggravated by the neglect or carelessness of the plaintiff. If you find this to be the fact—if you find that her own neglect or carelessness protracted her recovery, or increased her suffering, or impaired her strength or health, or prevented her complete cure—for none of these consequences is the defendant liable, and for none of them is he bound to compensate the plaintiff.

Thirdly, plaintiff has given evidence tending to show a temporary inability to labor, and a permanent impairment of her capacity to labor. She is a married woman ; and it does not appear that she was engaged, at the time of her treatment by the defendant, in any trade or business, or performing labor or services, on her sole and separate account. She took boarders; but whether for herself alone, or for her husband, is not clearly apparent on the evidence. Now, notwithstanding the supposed complete emancipation of married women in this State, and their exaltation to an equality with, if not to a superiority over, their husbands, it is still the law in New York that, unless a married woman be carrying on business or performing labor on her sole and separate account, her services and earnings belong to her husband ; and he, not she, is entitled to recover for their loss. Hence, unless you find that the plaintiff was keeping boarders on her own sole and separate account, you cannot award her anything for the loss of services and earnings.

Gentlemen, the case you have to determine is not only of consequence to the parties, but, as involving the duties and liabilities of physicians, is of interest to that noble and beneficent profession; and, as affecting the safeguards of human health and life, is of moment to the entire community. It is because of the importance of the case in these various aspects, and of the many delicate and difficult questions it involves, that I have detained you so long in expounding to you the principles of law governing your determination. It is because of the great importance of the case, that I am pleased to commit it to a jury so capable of deciding it intelligently and justly.

Note on the responsibility of Physicians and Surgeons FOR SKILL AND CARE, IN CHARITABLE OR GRATUITOUS SERVICE.

The importance of the case in the text is in the distinction it makes between ordinary services, and those of medical men. The notes of cases which are appended below will indicate that this distinction has not always been observed. It is not perhaps strange that, when it was customary to determine questions of negligence by the somewhat rough classification in degrees, of slight, ordinary and gross, several courts held that medical men serving gratuitously were not liable in damages, except for gross negligence. But, now that the customary legal analysis of negligence has been carried further by inquiring for the duty and care which the situation in question involved, and treating any violation of that duty, with damage, as actionable negligence, the anomaly of regarding the duty of physicians as measured by their compensation has become apparent. It is clear enough that a mere ordinary bailee has a higher duty when he engages for hire than when he engages gratuitously. It is clearly held in the text that one who holds himself out as skilled in medicine, and engages in what may be matter of life and death, undertakes the same duty whether he engages for hire or .gratuitously. Whether this uniformity of duty rests on a public policy peculiar to medical and surgical treatment of human beings; or whether it rests on the qualifications required by law for license and practice ; or whether it is common to all skilled employments, is not perhaps decisively determined. .Upon these questions may depend the inquiry whether the rule of the case in the text extends to veterinaries, to the legal profession, and to other professional vocations.

The rule itself in respect to medical men may perhaps be subject to some qualification. Is. the duty of possessing skill uniform for all who hold themselves out as qualified physicians or may the young beginners be judged by a junior standard ? Granting that the proper degree of skill is possessed, is a physician bound to use all his skill whatever it may be, or is his duty performed by the exercise of the skill common to the profession at large ? The case in the text it will be seen sanctions the very reasonable rule, that he is not bound to go on indefinitely with a case requiring further treatment ; but must before withdrawing without his patient’s consent, give sufficient notice to enable the patient to employ another physician.

Notes of Cases.

1. Evidence that service ¡was gratuitous—harmless to plaint if.] Jones v. Angell, 95 Ind. 376. In an action for malpractice, the admission of evidence by the defendant that he had neither received nor charged any fee for his services is harmless to the plaintiff.

2. Employment by infant.] Gladwell v. Staggall, 5 Bing, N. C. Eng. 733, a declaration in case stated that plaintiff, an infant, had employed the defendant, a surgeon, and then claimed damages for misfeasance. The plea denied the employment. There was evidence to show that defendant had been called in by plaintiff’s father. Held, the action being ex delicto, defendant’s responsibility as to plaintiff was not affected by the question by whom he was employed.

3. Employment not alleged.] Pippen v. Sheppard, 11 Price, 400, on demurrer in an action for malpractice where negligence and improper treatment was charged,—Held, it was immaterial that the declaration did not allege by whom the defendant was employed.

4. Nelson v. Herrington (Wis. 1888.) 1 Lawyers’ Rep. Ann. 719. An action for malpractice is not necessarily to be regarded as on contract. The contract may be stated merely by the way of inducement, and the gravamen of the action be founded upon the physician’s breach of legal duty as such.

5. Thomas v. Winchester, 6 N. Y. 397. A dealer in drugs and medicine who carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into market, is liable to all persons who without fault on their part are injured by using it as medicine in consequence of the false label. The liability of the dealer in such case arises not out of any contract or direct privity between him and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others. S. P. George v, Skivington, L. R. 5 Exch. 1. Haiv wash sold husband. Action by wife for ill effects caused by its use because of its negligent preparation, maintainable.

7. Ordinary skill necessary.] McNevins v. Lowe, 40 Ill. 210. If a ■person holds himself out to the public as a physician, he must be beld to ordinary care and skill in every case of which he assumes the charge, whether in the particular case he has received fees or mot. The court adds that the case of Richey v. West, 23 Ill. 385, is to be understood in this sense.

8. Gross negligence renders liable.] Shiels v. Blackburn, 1 H. Bl. 161. Action against a general merchant who without reward undertook to enter goods at a custom house but did it so improperly that the goods were in consequence seized. Heath, J. says: “ The -defendant in this case was not guilty of gross negligence or fraud, he acted bona fide. If a man applies to a surgeon to attend him in a ■disorder for a reward and the surgeon treat him improperly there is gross negligence, and the surgeon is liable to an action; the surgeon would also be liable for such negligence, if he undertook gratis to attend a sick person because his situation implies skill of surgery.”

9. Conner v. Winton, 8 Ind. 315. Action for damages for malpractice by a veterinary surgeon. The operation was performed as an act of friendship. Held, that the act thus done gratis was a mandcite" in which the defendant was bound to exercise at least slight care, and was responsible for gross negligence. What would be gross negligence in such case would be dependent on the value of the property and delicacy of the operation.

10. Degree of skill.] R. Vashon Rogers, Jr., in Law and Medical Men, after saying that the professional duty is to be up to the improvements of the day, says: (p. 61) inasmuch as gratuitous services are more generally rendered by young and inexperienced physicians than by those who are well established in their business, a presumption naturally arises that one who renders such services is not possessed of great skill, and was not supposed to be by the patient. This presumption may be overcome by proof to the contrary ; and the physician must be judged by the standard to which he led the patient to believe he had attained; or if he has done nothing to mislead his patient upon this point, his responsibility will be measured by the degree of skill which he is proved actually to possess. Citing Shearm. & R. on Negl. § 432.

11. Degree of negligencel\ In Doyle v. N. Y. Eye & Ear Inf. tried at circuit before Van Brunt, J. and a jury, (affd. in 80 N. Y. 631 ); it was objected in support of a motion to dismiss the complaint, that the services were given freely, without fee, and there was therefore no basis of contract; that no gross neglect had been shown. The presiding judge denied the motion in view of the analogy drawn from the liability of railroad companies to passengers on free passes, for injury by the negligence of the company’s servants. (McClelland on Civ. Malpr. 269.)

12. Gross negligence must be shownl] Ritchy v. West, 23 Ill. 385. Action for malpractice. The court, after laying down the general rule that a physician must employ and possess a reasonable amount of care and skill, say: “ This the law implies whenever a retainer is shown; but when the services are rendered as a gratuity, gross negligence will alone create liability.” But see case 7.

13. Perionowsky v. Freeman, 4 F. & F. 66 Eng. 977. A patient in a hospital in an action against two surgeons, who served the hospital gratuitously, charged maltreatment in the administration of hot baths which defendant had ordered. It was no part of the defendant’s ordinary duty to personally direct and superintend the baths, nor were they present at the actual administration. Held, that plaintiff was not entitled to expect more than the usual and ordinary degree of care and attention at the hands of the surgeons, and that if they were not personally cognizant of the alleged ill-usage they were not liable.

14. Error of Judgment.] In Courtney v. Henderson (N. Y. Marine Ct. reported in McClelland on Civ. Malpr. 273). Defendant relied on the maxim that an error in judgment is not malpractice. But the court held that this could not avail one who assumed to practice, as defendant had done, without diploma, and without knowledge or skill. But compare McCandless v. McWha, 22 Penn. St. 261, 268, where it is said that if one wounded applies for assistance to a man of different occupation or employment than physician or surgeon, “who either does not exert his skill, or administers improper remedies to the best of his ability, such person is not liable in damages.”

15. Certifying insanity.] Ayers v. Russell, 50 Hun, 282, s. c. 20 State Rep. 323. A physician signing a certificate in the commitment of an insane person is not clothed with judicial immunity, but is chargable for that neglect which in the case of a professional expert renders him liable for the failure to use the care and skill which his profession fier se implies that he will bring to his professional work. So held in an action for false imprisonment.

16. Public policy.] Nelson v. Harrington (Wis. 1888). 1 Lawyers’ Rep. Ann. 719. The law holds a physician liable for injuries occasioned by the reason of his want of ordinary skill upon the ground that the public must be protected from incompetent practitioners.

17. Sherman & Redfield say: A physician and surgeon attending gratuitously is liable for gross negligence only. Yet his duties relate more or less directly to the preservation of human life, it follows , . . that it may often be gross negligence in a physician to fail in giving such attention to his patient as would be expected ( from a well paid person in respect to matters of mere pecuniary value. 2 Sherman Redfield ■ on Negligence, § 604. [Citing Richy v. West, 23 Ill. 385, but compare McNevins v. Lowe, .40 Id. 210.]

18. Gratuitous atte7ídant C077ipete7it as a witness.] Edington v. Mutual Life Ins. Co., 5 Hun, 1. Against the objection that a physician’s testimony was inadmissible it was held that .a physician who merely makes a casual prescription for a friend when meeting him in the street, cannot be called a medical attendant, who is properly a person to whom the care of a sick person has been intrusted.  