120 N.Y.S. 387 | N.Y. App. Div. | 1909
This is an action' in the nature of an action for malpractice brought against the defendants on the theory that they hold themselves out to practice medicine and that they assumed to prescribe for and treat plaintiff and were guilty of malpractice in so doing.
The defendant corporation was incorporated under the laws of the State of Hew York on or about the 3d day of March, 1902, for the purpose, among other things, of manufacturing “ boots, shoes and general foot wear and external mechanical appliances for the restoration o'f health to the human body,” and to erect,, equip, conduct and maintain such “ buildings, and establishment as may be suitable for the needs and purposes of the corporation and for the accommodation and comfort of its patrons and customers.” The defendant Hilgert is the president and general manager of the corporation. Its place of business is at Ho. 31 West Twenty-sixth street, borough of Manhattan, Hew York. On its letter heads are printed “ Locomotor-Ataxia,” “ Paralysis,” “ Hlieumatism ” and “ Gout,” in a manner to indicate that it manufactures or sells foot gear or other external mechanical appliances for the treatment or alleviation of those diseases. Of - course the corporation cannot practice medicine, and it appears that the' defendant Hilgert is not a licensed physician. Ho question, however,- with respect to the correct theory of the liability of the defendants is presented by the appeal, for upon the trial the plaintiff elected to proceed against them upon the rule of liability applicable in an action, against a physician for malpractice, and that course was followed without objection.
The action as developed by the evidence adduced upon tlie trial is brought to recover damages alleged to have been sustained by the plaintiff in consequence of advice received from the defendant Hilgert, representing the defendant corporation, and acted upon, which resulted in the abandonment of the use for the time being of a brace for his right hip which had been-prescribed for a disease of. the hip 5from which he- was suffering, it being claimed that the abandonment of the use of the brace resulted in aggravating and spreading the disease. The plaintiff has recovered a verdict of $3,000. It was alleged that the defendants were also guilty of malpractice in prescribing certain shoes and massage treatment for plaintiff, but there was no evidence .that his condition was materially
When the plaintiff was seven or eight years of age — neither time nor age is stated "with accuracy — a wagon on which he was riding with his father collided with an elevated pillar, precipitating him to the street, which immediately caused soreness and lameness, and later on he suffered pain in his right knee, which appears to have been attributable to the accident, and sometime in the year 1901 — probably a year and a half after the accident — he was taken to the Roosevelt Hospital where a plaster cast was put on his “ back and all over,” and after a time — the period is not given — he was taken to the Hew York Orthopedic Hospital, where the' plaster cast was removed and a brace was applied to the spine and the right hip, and he was treated there'for a period of eight months, and during six weeks of it he was in bed. He was then taken home, but went to the dispensary from time to time during the years 1902, 1903 and 1904 for treatment, and during that time was able to be about with the use of the braces, but walked lame, and he testified that he suffered no pain, and in the latter part of the year 1904 and forepart of 1905 he attended a school for crippled children and a public school, and was so attending school in the month of March, 1905. On or about the Ith day of March, 1905, his mother brought him to the defendants for treatment. He was then suffering from tubercular hip joint disease, which originated in his right knee and was caused by or resulted directly or indirectly from the accident. According to the testimony of the medical experts, there are three stages of what is known as tubercular hip joint disease, and when the patient reaches the third stage it is incurable. According to the testimony of the mother of the boy, ah abscess appeared on his right liip about five months before she took him to the defendants, and it remained and was there at that time.' Thé evidence is uncontroverted that the third or final stage of this disease is manifested by abscesses. They are caused by the decay of the bone. The uncontroverted evidence is that this disease had progressed to its third stage sometime before the defendants were
There was no evidence'to show that the .shoes or massage pré
In the main charge the court failed to instruct the jury with respect to the effect to be given to the medical evidence, but after ruling on various requests to charge, the court again addressed the ■ jury as follows: “ Gentlemen, there is one matter that escaped my attention which I should have instructed you upon, and it will talce but a few minutes. In considering the testimony of doctors it is proper that you should, look at the testimony in one or two aspects, or both, as the case may be. A doctor may testify to things within his knowledge, and the result of his own observations in treating a patient, to what he has seen, to- what he has heard; in other words, a knowledge which he has acquired through the senses in his treatment ; that would be what is called testimony as to facts. A doctor may also testify as to matters of opinion; these are answers to hypothetical questions; that'is, a doctor may have a question put to him that assumes a certain thing to be- true, and the doctor may give his opinion. That is what is called opinion evidence for lack of a better term. So you will be careful to distinguish between the two classes of testimony —-that is, between the class, of testimony where a doctor testifies to a thing that he himself has seen or heard or observed in the treatment of this boy, and to the expressions of opinions from doctors who have not treated the boy or have not seen him: Because the law recognizes that a medical man may give his opinion to the jury; those opinions, however, do not control; they are merely for your guidance, and yon can reject them or accept them just as you think proper. They do not in anyway conclude you, because it is only an opinion and not evidence as to facts. Now, gentlemen, I think that is all.”
■Counsel for the defendants duly excepted to these.instructions, and requested the court to instruct the jury in that connection “ that the testimony of Dr. Soule in part was as to tubercular cases generall)r, and not as to this boy individually,” to which the court replied, “ I decline to distinguish among any of the doctors. My instruction has reference to every doctor who has testified before,” whereupon counsel- for defendants duly excepted to the refusal of the court to so charge and to the statement made by the court. We
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, P. J., Ingraham, Clarke and Soott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.