Bois v. Decker

• Decision Date: 15 December 1891
• Citation: 29 N.E. 313,130 N.Y. 325
• Parties: DU BOIS v. DECKER.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 325

29 N.E. 313

DU BOIS

v.DECKER.

Court of Appeals of New York, Second Division.

Dec. 15, 1891.

Appeal from supreme court, general term, third department.

Action by Henry Du Bois against William M. Decker, a physician, to recover damages for alleged malpractice. Plaintiff obtained judgment, which was affirmed by the general term. Defendant appeals. Affirmed.

A. T. Clearwater, for appellant.

William D. Brinnier and S. T. Hull, for respondent.

HAIGHT, J.

This action was brought to recover damages of the defendant, a physician and surgeon, for alleged malpractice suffered by the plaintiff while undergoing treatment as a patient. On the 1st day of December, 1889, the plaintiff undertook to jump onto an engine of the Ulster & Delaware Railroad, in the city of Kingston, and in doing so slipped, and his left foot was caught by the tender, and a portion thereof crushed. Being destitute, he was taken to the city almshouse, where he was treated by the defendant, who was one of the city physicians having the care of the patients therein, and who was employed for that purpose. Thereafter, and on the 10th day of December, he am putated the plaintiff's leg above the anklejoint, and six or seven days thereafter, gangrene having set in, he again amputated the leg, at the knee-joint. After the second amputation the leg did not properly heal, but became a running sore, and at the time of the trial the bone protruded some three or four inches. Evidence was given upon the trial from which the jury might find that the bones of the foot were so crushed that immediate amputation of the injured portions was necessary, and that the appearance of gangrene was in consequence of the delay of 10 days in the operation; and that in the second operation the defendant neglected to save flap enough to cover the end of the limb and bone, and that the subsequent protrusion of the bone was owing to this neglect. The question of the defendant's liability consequently became one for the jury. We are aware that he claimed to have waited 10 days before operating for the purpose of seeing whether the foot could not be saved, and that a physician and surgeon will not be held liable for mere errors in judgment. But his judgment must be founded upon his intelligence. He engages to bring to the treatment of his patient care, skill, and knowledge, and he should have known the probable consequences that would follow from the crushing of the bones and tissues of the foot.

In submitting the case to the jury, the defendant asked the court to charge that, ‘if the plaintiff did not obey the defendant's instructions, and this contributed to an aggravation of the injury, the plaintiff cannot recover.’ The court declined to charge in the form in which the request was put, and an exception was taken by the defendant. It appears from the testimony of the defendant that after the second amputation he dressed the stump, and put the plaintiff in position by elevating the limb so as to prevent hemorrhage, and too much pressure upon the arteries; that the plaintiff did not keep in the position in which he was placed, and got his leg to bleeding; and that he presumed that this bleeding interfered with the healing of the limb. It also appears that some time after the second amputation the plaintiff refused and neglected to take the medicine that was left for him by the defendant, and that subsequently, after the defendant had ordered him to be removed to another room, so as to avoid liability of contracting erysipelas from a patient that had been brought to the almshouse afflicted with that disease, he left and went away. While the removing of the limb...