187 P. 282 | Mont. | 1920
delivered the opinion of the court.
Action by Rasmus Hansen to recover damages alleged to have been suffered by him through negligent and careless treatment
For some twenty years prior to August 16, 1913, Hansen had been suffering from pulmonary tuberculosis, so that the disease had become chronic. From time to time he had been under the care of various regular physicians at Deer Lodge, near which place he resided on a farm, and of specialists who resided in St. Louis and Kansas City, Missouri, to whom he had gone hoping to be cured. These had all pursued substantially the same course of treatment, prescribing creosote and cod liver oil in varying proportions, but none of them held out to Hansen hope of complete recovery, advising him that their treatment would serve only to check the progress of the disease and perhaps prolong his life. In 1910 he was under the care of Dr. Dye, of Deer Lodge, but concluding that he was not being benefited by Dr. Dye’s treatment, he ceased to employ him and was not thereafter under the care of any physician until August 16, 1913, when he employed the defendant. Gradually he had grown weaker from the ravages of the disease, until he had ceased active work on his farm. He had at times expectorated some blood, but had not suffered from hemorrhage until August 15, when he had one of some violence. He was much discouraged by this and determined to consult the defendant. He was induced to do this by having his attention accidentally called to the following advertisement, published in the “Butte Evening News, ’ ’ of that date:
“Dr. Huie Pock. Professional services to the public, and a guaranty of a sure cure for all kinds of diseases, including chronic cases of long standing. Also all complaints and weaknesses entirely cured. No. 227, S. Main St., Ind. Phone. 5152.”'
On August 16 he went to Butte in company with his wife, and to defendant’s place of business, where the latter conducted a store as well as gave treatment to those who went there for
The complaint charges: That defendant, having entered upon the employment, “did not use due and proper care or skill in endeavoring to cure plaintiff from the said disease or malady, to-wit, tuberculosis or consumption, in this: that, whereas, the plaintiff was then and there suffering with what is commonly known and designated by physicians as a chronic disease or malady of tuberculosis or consumption, the defendant treated the plaintiff for a kidney disease or disorder, and continuously so treated the plaintiff for said kidney disease or disorder from the sixteenth day of August, 19IS, to on or about the sixth day of March, 1914, inclusive; that except as a result of tuberculosis or consumption, the plaintiff was not at any of the time above mentioned suffering with any * * * disease or disorder; that * * * through lack of care and attention to the disease or malady with which plaintiff was then suffering, this plaintiff well-nigh died, and the ravages of consumption or tuberculosis, having gone on unchecked in plaintiff’s body, made the plaintiff so weak that he was unable to stand or walk without assistance.”
In his reply, plaintiff admitted that he solicited the services of the defendant, with knowledge that he was a Chinese physician; that he entered into a contract with him for his services
The principal contention made by counsel is that the evidence does not justify the verdict. They contend that testimony of physicians of recognized American schools, introduced by plaintiff, that defendant’s diagnosis and treatment could not be justified from any point of view, was not sufficient to convict him of a lack of ordinary care and skill, and that if this be conceded, the evidence otherwise fails to show that plaintiff was injured. This contention must be overruled. The evidence is voluminous. It will not be necessary to set it forth and subject it to a critical analysis, however, for the reason that the salient facts are not seriously controverted. It will suffice for present purposes to state generally the inferences which it warrants and determine whether, under the rales of law applicable, the contention of counsel is maintainable.
It is admitted by the pleadings that the plaintiff employed the defendant as a Chinese physician. Defendant alleged that the plaintiff was at that time suffering from a kidney disease, and thus tendered an issue upon the question whether he was suffering from chronic tuberculosis; but it is not seriously controverted in the evidence that plaintiff was suffering from this disease nor was there any evidence, other than that of defendant, that he was affected with any other disease. There is no controversy but that after the superficial examination described above, the defendant directed the plaintiff to discard entirely the use of eggs, chicken and milk as food, which had theretofore been his diet, and also to refrain from drinking cold water; that he prescribed a concoction of herbs which he said had been brought from China, requiring plaintiff to take it daily and to visit him as above stated; that the plaintiff remained under his treatment for seven months; that as a result he lost flesh, until his weight had decreased twenty-five pounds; that he gradually grew weaker, until he walked with difficulty and was confined
It is the rule, recognized by the courts generally, that when one holds himself out as a physician or surgeon, whether licensed or not, and accepts employment as such to treat a patient, he assumes toward the patient the obligation to exercise such rea
The rule was recognized by this court, though not stated as fully as above, in the case of Stevenson v. Gelsthorpe, 10 Mont. 563, 27 Pac. 404. It will be observed that under it the liability of a physician or surgeon in any particular case is to be determined by an answer to the inquiry whether he has pursued the rules and regulations of the system or school to which he belongs. The law, however, is not concerned so much about the
In the case of Nelson v. Harrington, supra, the court was called on to decide the question whether one who holds himself out as a clairvoyant physician, there being no recognized school designated as a clairvoyant school, having fixed principles or formulated rules for the treatment of diseases, should be held to the standard which is applicable to ordinary physicians. On this subject the court said: “To constitute a school of medicine, under this rule, it must have rules and principles for the guidance of all its members, as respects principles, diagnosis and remedies, which each member is supposed to observe in any given ease. Thus, any competent practitioner of any given school would treat a given case substantially the same as any other competent practitioner of the same school would treat it. One school may believe in the potency of drugs and bloodletting, and another may believe in the principle similia similibus owrantur; still others may believe in the potency of water, or of roots and herbs; yet each school has its own peculiar principles and rules for the government of its practitioners in the treatment of diseases. Not so, however, with clairvoyant practice. True, the practice has but one mode of ascertaining what the disease is and the remedy therefor. This mode has already been stated. But the mode in which a physician acquires a knowledge of his profession has nothing to do with his- school or system of practice. One person may acquire such knowledge from certain books; another from certain other boobs, which perhaps teach different principles; still another from oral communications, as lectures, etc., or from experience alone; and still another from his intuitions when in an abnormal mental
In the case of Musser’s Exr. v. Chase, 29 Ohio, 577, the supreme court of Ohio held that a farmer who held himself out as a cancer doctor having skill and experience in the treatment and cure of cancer, came within the rule which “requires the exercise of such skill and care as are usually possessed and employed by the general physician in the treatment of such maladies.”
Counsel cite the case of Spead v. Tomlinson, 73 N. H. 46, 68 L. R. A. 432, 59 Atl. 376, as conclusive of their contention. In that case the facts were that the plaintiff, through her interest in the doctrines of Christian Science and the cures which defendant professed to be able to perfect through the agency of prayer; was induced to employ him to cure her of an attack of appendicitis. He undertook the cure for a reward, but, the
The evidence tending to show that the plaintiff was injured axxd the amount of damages he is entitled to recover is not very satisfactory; it does furnish a basis, however, for the inference that he suffered some injury. In our opinion, the amount of the verdict — $2,500—is excessive; but as no complaint is made of it on this ground, we do not think we should disturb it.
It is contended that the court erred in refusing to submit instruction referred to as 15B, requested by the defendant. It is xxot pointed out by counsel in what respect there was error in refusing this instruction, nor wherein defendant suffered prejudice. Upon examination of the charge as a. whole, we
The judgment and order are affirmed.
Affirmed.