125 N.Y.S. 458 | N.Y. App. Div. | 1910
The defendant appeals from a judgment entered upon a verdict, and from an order denying a motion for a new trial. The action is against a surgeon for “ carelessness, negligence and unslrillfulness * * * in conducting and performing ” certain surgical operations upon the plaintiff, and the recovery is a large one. It would serve no useful purpose to review in detail the conditions which necessitated the operations and the nature of the operations themselves. It is sufficient to say that the principal operation involved the removal of certain organs which had become diseased and that the subsequent operations were of a minor character performed for the purpose of drainage, and with a view to the restoration of certain parts and tissues which had become infected. The plaintiff,,a young woman of about twenty-five years of age, employed as a waitress in a restaurant, had been troubled for some months with a persistent disorder, which failed to respond to such simple remedies as she had resorted to herself. Upon the advice of a friend she applied for treatment to the clinic of St. Bartholomew Hospital. Here she came under the care of a Dr. Jaques, one of the attending physicians, who, after examining and re-examining her, concluded that she required surgical treatment, and advised her to go to the Polyclinic Hospital and permit the defendant to treat her. She went to the hospital, engaged a room, and the next morning after her arrival saw the defendant for the first time. Pie at once examined her, concluded that an operatiqn was necessary, and did operate. Later in the same day a condition arose which required a second minor operation, mainly for the purpose of drainage, and some time later a second incision was made for the same purpose. Still later, after plaintiff had sufficiently regained her strength, a fourth operation was performed, consisting of opening one of the incisions already made and securing so far as possible some of the spots found to have been weakened by the infection found upon the occasion of the first operation.
The law relating to malpractice is, as stated by Judge Vann in Pike v. Honsinger (155 N. Y. 201), “ simple and well settled,
In addition to possessing the requisite skill and knowledge, it becomes the duty of a physician or surgeon, upon undertaking to treat a patient, “ to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge.” (Pike v. Honsinger, supra.) The gravamen of the complaint is that defendant, while possessing the requisite skill and learning, did not use reasonable care in the exercise of 1ns skill and the application of his knowledge.
The complaint, after alleging that the defendant performed an operation upon plaintiff, goes on to aver “ that by reason of the carelessness, negligence and unskillfulness of defendant in conducting and performing said principal operation, and other operations, which he performed on plaintiff’s body at different times thereafter, occasioned and necessitated by defendant’s negligence, carelessness and unskillr fulness aforesaid, she was made sick, sore”’ etc. Although the complaint was limited to a charge of negligence, carelessness and unskill-' fulness in conducting and performing the operations, the case was tried and submitted to the jury upon the theory that the defendant might be held liable either because he had been negligent and unskillful in conducting and performing the operation, or because he had been negligent and careless with respect to the treatment of plaintiff after the operations, which, as the court charged, involved separate lines of inquiry. An examination of the whole case shows very clearly either that the verdict was against the evidence or that it rested entirely upon the charge of negligence and carelessness in
The necessities of the case required that the defendant should leave, in large measure, to the hospital staff the care of the patient after the operations, and it was shown that this was the usual and proper practice in hospital cases. Much stress was laid by plaintiff upon the defendant’s supposed carelessness in giving instructions to the members of the staff. It, therefore, became very material and necessary for defendant to show what instructions he did give, and
The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, P. J., Clarke and Miller, JJ., concurred; Dowling, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.