Burroughs v. Crichton
48 App. D.C. 596
D.C. Cir.
1919
Check Treatment
Mr. Justice Bobb

delivered the opinion of the Court:

Appeal from a judgment in the supreme court of the District sustaining a demurrer to appellant’s (James E. Burroughs) amended declaration.

In the first of the two counts of the declaration it is averred that the defendant, MacPherson Crichton, appellee here, with intent to deceive the plaintiff and obtain from the plaintiff certain fees, informed plaintiff, “as a fact and not as an opinion,” that plaintiff’s wife “whs affected with an ordinary benign tumor. * * * That the defendant well knew, as a skilled and experienced physician and surgeon, that the plaintiff’s wife was afflicted with cancer, and that the operation therefor would be a major operation, putting in jeopardy the life of the plaintiff’s wife;” that plaintiff, being in ignorance of the ailment of his wife and relying upon the good faith of the defendant, consented to the performance of an operation by the defendant upon plaintiff’s wife; “that said operation was performed for cancer, and not for a benign tumor;” that the patent remained in the hospital for a month and a half, when she returned home in a dangerous condition resulting from the operation, and suffered pain until her death a few months thereafter; that “by reason of the aforementioned faults, deceitful and fraudulent representations, and assurances of the defendant, the plaintiff was deceived and fraudulently induced, by the defendant, to submit his wife to a dangerous and fatal surgical operation, which he would not have done had defendant told plaintiff the truth,” etc.

The theory underlying this count is that a husband has absolute control over the person of his wife; that it is for him, and him only, to determine whether an operation shall be performed upon her, and, if so, upon what conditions. In other words, the theory is that in this respect the husband exercises the same control over his wife as is exercised by the owner of a chattel. This position is untenable. In Bronson v. Brady, 28 App. D. C. 250, 256, we said “that the tendency of the times is to emancipate married women from the harshness and disabili*602ties of the common law, and place them upon an equal footing with men.” A wife, in the full possession of her faculties, is as much entitled, both morally and legally, to determine whether she shall submit herself to an operation as is the husband in respect to an operation on himself. And where a wife, in such circumstances, consents to an operation which is skilfully performed, the surgeon is not liable to the husband in damages. Pratt v. Davis, 224 Ill. 300, 7 L.R.A.(N.S.) 609, 79 N. E. 562, 8 Ann. Cas. 197; State, Use of Janney v. Housekeeper, 70 Md. 162, 2 L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. 382; 21 R. C. L. 392, 393. The following from the opinion in the latter ease is pertinent here: “Surely the law does not authorize the husband to say to his wife: You shall die of the cancer; you cannot be cured; and a surgical operation affording only temporary relief will result in useless expense. The husband had no power to withhold from his wife the medical assistance' which her case might require. * * * The consent of the wife, not that of the husband was necessary.” In the present case, it is alleged that the defendant was “a skilled and experienced physician and surgeon;” that plaintiff’s wife was afflicted with cancer and that defendant performed an operation therefor. It is not averred that the operation was unnecessary or that it was unskilfully performed. Neither is it averred that plaintiff’s wife did not appreciate her true condition and consent to the operation. Such averments being lacking, it must be assumed that the facts did not warrant them. The count, therefore, is fatally defective.

In the second count it is alleged that the defendant, for the sum of $200, agreed to perform an operation on plaintiff’s wife “and thereafter to give his professional attendance, care, and treatment” to her during her stay at the hospital and upon her return home until her recovery; that plaintiff performed his part of the contract; that after the operation plaintiff’s wife ■was brought home “in a dangerous condition resulting from said operation;” that plaintiff called upon defendant to continue his professional attendance, care, and treatment of plaintiff’s wife in accordance with the agreement, but that defendant n sg*603lected, failed, and refused to do so; that, “after several days, during which the plaintiff’s wife was languishing in intense suffering, awaiting defendant’s attendance, the plaintiff was compelled to call in another physician at additional expense,” and that by reason of the failure and refusal of the defendant to perforin his contract plaintiff suffered damage, etc.

Treating the averments of this count as true, as we must, a cause of action is stated. A contract and its clear breach is set out, and, if the plaintiff should sustain these averments by proof, he would bo entitled to recover. The defendant, contends that there is no sufficient averment in this count “that the defendant’s services as a physician and surgeon at the time (complained of) were required and necessary.” It is in effect averred that when plaintiff unsuccessfully requested the defendant “'to continue his professional attendance, care, and treatment of plaintiff’s wife, in accordance with the agreement,” she “was languishing in intense suffering, awaiting defendant’s attendance,” and that it was necessary to call another physician. While this averment is somewhat inartificial, we think it sufficient. The inference is irresistible that the patient needed medical attention, which the defendant, according to the pleader, neglected and refused to render.

It results that the judgment must be affirmed as to the first count and reversed, with costs, as to the second count.

A ffirmed in part and reversed, in part.