147 Mo. App. 478 | Mo. Ct. App. | 1910
(after stating the facts). — Though the petition avers defendant advertised he could cure hernia in thirty minutes without cutting and plaintiff employed him to treat and cure plaintiff and defendant undertook to do so, it does not declare on the alleged promise, say the hernia was not cured nor ask damages for failure to cure it. The gravamen of the case presented is “defendant so negligently and unskillfully conducted himself in and about treating said hernia, that through and by reason of his negligence and unskillfulness, plaintiff was made exceedingly ill and his life placed in danger, so that it became necessary for him to go to a hospital and undergo a painful and dangerous surgical operation to preserve his life and restore him to health;. . . that defendant in his attempt to cure plaintiff, negligently and carelessly injected- into the parts affected a preparation which formed a waxy substance and resulted in an inflammation of the intestines, necessitating an operation for the saving of the life of plaintiff.”
Eirror is assigned for the court’s refusal to direct a verdict for defendant, the contention being there was no proof his treatment of plaintiff was improper, or, if it was, that it induced the peritonitis plaintiff suffered from months afterward. The affirmative of those
In one aspect tbe instructions were too favorable to defendant and in another were likely to mislead tbe jury to bis detriment. Because .defendant held himself out as an expert in tbe treatment of bernia, tbe law required-him to treat plaintiff with tbe skill and care commonly shown by physicians and surgeons in St. Louis and cities in advance or abreast of it in tbe practice of medicine and surgery, who devote special study to tbe treatment of tbe disease; that is to say, tbe proficiency and skill of hernia specialists; not meaning by this designation only physicians who treat that disease exclusively, but also those who by special study and experience probably have acquired more accurate knowledge of tbe right methods of treatment than is possessed by general practitioners of medicine. [5 Thompson, Negligence, section 6714; McMurdock v.
What we are dubious about is whether the evidence for defendant conduced to prove the treatment he used was recognized by the experts of his school as proper for the relief of hernia. That it was of comparatively recent origin ought not, ipso facto, to put it in the class of innovating experiments, so as to lay the defendant liable for a bad result, even though he displayed reasonable skill and care in the manner of applying it. This is true because some of the most approved systems of treatment, like antitoxin for
The theory carried through the instructions was that defendant was only required to possess and exercise the skill and care exercised by physicians of ordinary skill and ability in localities like St. Louis, whereas we think he was bound to exercise ¿±e care of a specialist, and that the propriety of his treatment was to he determined with reference to the practice and approval of specialists. It may he the system was recognized, approved and used by physicians who had kept pace with scientific progress in relieving hernia, hut “was a method or manner of treatment not used by physicians and surgeons of ordinary care and skill,” as the first instruction reads.
We have not found any proof in the record plaintiff was permanently injured by defendant’s treatment and unless on another trial there is such evidence, it would be well to omit in the instruction on the measure of damages, reference to permanent injury.
The judgment is reversed and the cause remanded.