delivered the opinion of the court.
Appellant sued appellee for malpractice. He charged negligence in general terms but failed to aver due care on his part or such a state of facts and circumstances from which due care could be reasonably inferred. A demurrer to the declaration was interposed and sustained. By leave of court appellant filed an amended declaration in which he averred that he received an injury whereby the flesh was crushed and torn from the first joint of the forefinger of his right hand; that appellee was employed and undertook to treat said injury; that the proper treatment therefor was to amputate a part of said finger and to treat and dress the same; that appellee negligently failed to amputate said finger or any part thereof; that he so negligently dressed and treated the same that it became infected; that by reason thereof appellant suffered great pain and has lost, permanently, the use of his right hand and arm. Appellant also averred that he was at all times in the exercise of due care and caution and that the results aforesaid were not due to his fault or negligence. Appellee filed the general issue and three special pleas. The court overruled a demurrer to the special pleas and appellant elected to abide by his demurrer. Judgment was rendered in bar of the action and for costs.
One of the special pleas set up the two-year-statute of limitations. If the original declaration did not state a cause of action, or if it stated a different cause from that averred in the amended declaration, the court did not err in its ruling thereon. If a patient is guilty of negligence which is an active and efficient contributing cause of the injury occasioned by the malpractice of his physician he is not entitled to recover. In other words, contributory negligence simultaneous and co-operating with the fault of the physician and entering into creation of the cause of action and forming an element in the transaction which constitutes the cause of action will bar a recovery. 21 R. C. L. 402; Sauers v. Smits,
Where the negligence of the patient is subsequent to the malpractice and merely aggravates the injury inflicted by the physician it only affects the amount of the damages recoverable by the patient. Such negligence will simply prevent a recovery to the extent that the damages were thereby enhanced or increased. 21 E. O. L. 402. There was a conflict in the decisions of our Supreme Court on the question as to whether it was necessary for a plaintiff seeking to recover for personal injuries resulting from negligence to aver and prove that he was in the exercise of due care. That question was set at rest in Walters v. City of Ottawa,
Tested by the rule the original declaration in the case at bar did not state a cause of action. So far as its averments are concerned appellant may have been guilty of negligence which was an active and efficient contributing cause of the injury due to the alleged malpractice. To state a cause of action it was necessary to aver that appellant was in the exercise of due care in that regard. It has been held that a plaintiff, in an action for malpractice, must allege in his declaration his freedom from negligence of that character. Peters v. Howard,
The other special pleas are to the effect that appellant received an injury while in the employ of the Ohio Oil Company; that he and his employer were subject to the provisions of the Workmen’s Compensation Act [Cahill’s Ill. St. ch. 48, [¶] 201 et seq.]; that he applied for compensation under said Act for the total and permanent loss and use of his index finger of his right hand, and the total and permanent loss and use of his right hand, arm and shoulder; that the Industrial Commission awarded him $2,856 therefor and said award is in full force and effect; that the Ohio Oil Company had paid him under said award the sum of $2,402.36 on February 29, 1924, and that the balance was payable in weekly payments and would be paid; that after appellant received his injury the Ohio Oil Company furnished him the medical services of appellee and had paid appellee therefor. The pleas further aver that on the hearing before the Industrial Commission appellant and certain physicians testified as to the nature and extent of his injury and the permanence thereof and that as a result of the said injury and the treatment thereof by appellee, appellant had suffered a complete, total and permanent loss of the use of his right arm and shoulder but that otherwise he was uninjured. It is also averred that the payments already made and being made by the Ohio Oil Company to the plaintiff were received and are being received and accepted by him in full satisfaction of all compensation, injuries and disabilities growing out of and as a result of his said accident, and in full satisfaction of all injuries and damages complained of against this defendant herein.
Appellant contends that a settlement with the employer in full under the Workmen’s Compensation Act will not bar the employee of his action against a physician for malpractice which occurred in the treatment of his injury and before compensation was awarded. He relies upon Viita v. Fleming,
The question suggested is interesting but its determination is not necessary to a decision in this case.
The pleas expressly aver that the payments made and being made by the Ohio Oil Company to appellant were and are being accepted by him “in full satisfaction of all injuries and damages complained of against this defendant herein.” Appellant, by his demurrer, admits that such is the fact. Assuming the fact to be true, as we must, we know of no rule of law that would permit him to maintain his action.
The court did not err in its rulings on the demurrer and the judgment is affirmed.
Affirmed.