Medlin v. Bloom

230 Mass. 201 | Mass. | 1918

Crosby, J.

This is an action of tort for the alleged negligence of the defendant, a physician, in the care of the plaintiff, an infant, by reason of which he became blind.

The defendant signed a birth certificate which stated that he personally attended the birth of the plaintiff, although he admitted he did not deliver the child, but attended him between five and six hours after he was born. He testified that when he first was called he put a solution of nitrate of silver in the plaintiff’s eyes; this was denied by the plaintiff who offered evidence to the contrary. That such treatment was proper “and is a part of the technique of child birth,” was admitted by the defendant; and there was also evidence that the administering of the solution of nitrate of silver at birth “would make the likelihood of the development of the disease of ophthalmia, which caused the blindness, very much less.” The defendant offered evidence that, even if no solution of nitrate of silver was administered at birth, it was shown that the disease was due to a secondary infection, as the symptoms did not develop until eight days afterwards, and that the failure to give the treatment made no difference. The questions, whether the defendant failed to administer the treatment or not, and, if it was not administered, whether the plaintiff’s blindness was due to such omission as a proximate cause, were rightly submitted to the jury.

There was nothing to show that the plaintiff’s eyes were affected with ophthalmia until April 22, 1916, when the right eye became swollen apd red and had an unnatural discharge, ■— the. left eye was not as badly affected. There was evidence that the defendant was called on April 24, 1916, and, after being solicited to come on several occasions, appeared at the house of the plaintiff’s father on April 25, 1916, between five and six o’clock in the afternoon; that at that time the plaintiff’s eyes were swollen, red and closed, with pus coming from each eye when opened, and that the defendant administered treatment; that the next afternoon between five and six o’clock the defendant came again and took a smear from the plaintiff’s eyes, which were in a worse condition than on the day before. The records of the health department of the city of Boston showed that written notice of the case, bearing a postmark “12:30 A. M. April 27, 1916,” was received.

The case is before us upon the plaintiff’s exceptions to the exclusion of testimony, the giving of rulings requested by the defendant, the refusal of the trial judge to give a ruling requested by the plaintiff, and to certain parts of the judge’s charge.

The defendant’s first and third requests, which related to the treatment of the plaintiff by the defendant on his first visit, could not have been given, because, if on that occasion he administered a solution of nitrate of silver and then gave to the plaintiff proper treatment, still there was evidence of negligence of the defendant afterwards. Accordingly these exceptions must be sustained.

The second exception is overruled. The failure of the defendant to attend the plaintiff promptly could not have been found to be negligence under the circumstances.

The fourth exception cannot be sustained. While it may be that the plaintiff would have received better medical treatment if he had been removed to a hospital, yet the defendant’s failure to order such removal did not upon this record of itself constitute evidence of negligence sufficient to justify a verdict for the plaintiff. While a physician may advise the removal of a patient to a hospital in an ordinary case, he has no authority to order such removal.

The testimony relating to the plaintiff’s home, and whether treatment there would have been proper or would have been more efficient and desirable in a hospital, was excluded properly.

The presiding judge instructed the jury in substance that the failure of the defendant to report the case to the board of health as promptly as he should have done under It. L. c. 75, § 50, as amended by St. 1905, c. 251, § 2, was immaterial, and was not to be considered as evidence of negligence. We are of opinion that this was error, and that the plaintiff was entitled to the ruling asked for by him— “If you find that the defendant violated the provisions of St. 1905, c. 251, that is evidence of negligence on the part of the defendant.” Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580, 582. Doherty v. Ayer, 197 Mass. 241. McCarthy v. Morse, 197 Mass. 332, 336, 337. It could have been found that the defendant on the afternoon of April 25, 1916, knew that the plaintiff’s eyes had become inflamed, swollen and red, and showed an unnatural discharge within two weeks after birth. In these circumstances, it was the defendant’s duty, under the statute, immediately to give notice thereof in writing over his own signature to the board of health. A penalty is prescribed for violation of the statute. The evidence shows that the notice mailed by him was postmarked “12:30 A. M .April 27.” The evident purpose of this statute is that the board of health may be informed without delay of the existence of a most serious' disease with which very young children may be affected, so that immediate and scientific treatment may be received and blindness prevented. St. 1905, c. 251, § 1. Upon this record it could not properly have been ruled as matter of law that the delay of the defendant in notifying the board of health of the plaintiff’s condition was not evidence of negligence. It was for the jury to determine whether the defendant immediately gave the notice required by the statute. If he failed in this respect, such failure was evidence of negligence, which could have been found to have resulted as a proximate cause of the plaintiff’s blindness. The exception to the instructions given upon this branch of the case, and the failure to give the ruling asked for by the plaintiff, must be sustained.

The other exceptions need not be considered, as the same questions may not arise at another trial.

Exceptions sustained.