Carey v. Mercer

Citation239 Mass. 599,132 N.E. 353
PartiesCAREY v. MERCER.
Decision Date14 October 1921
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Berkshire County; Nelson P. Brown, Judge.

Action by James P. Carey against William J. Mercer. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained.J. Arthur Baker, of Pittsfield, and Herbert C. Joyner, of Great Barrington, for plaintiff.

Walter F. Hawkins, of Pittsfield, for defendant

CARROLL, J.

The plaintiff suffered a ‘fracture of the bone of the upper tibia at the knee joint.’ The defendant, a physician, was called to attend him, and, it is alleged, failed to treat the patient with proper care and skill. The jury found for the plaintiff.

The evidence was conflicting on the question of the defendant's negligence. The plaintiff's evidence tended to show, ‘among other acts of negligence,’ that the defendant was negligent in failing to have an X-ray photograph of the plaintiff's leg taken, which photograph, it was claimed, would have disclosed a fracture at the knee joint. There was evidence that the defendant advised the plaintiff to have the photograph taken, but that he declined because of the expense connected therewith. The plaintiff offered evidence that no such suggestion or advice was given and that he never declined to have such photograph taken on account of the expense, or for any other reason.

The defendant requested the court to rule:

‘If the jury find that the X-ray photograph was required to determine whether any bone of the plaintiff's leg was broken, and [he] was so informed by the defendant and declined to have such photograph taken, then the defendant is not responsible for not discovering the broken bone.’

This request was refused. The jury were instructed:

‘Where a manual examination or an ordinary examination is made by a physician called in a case in which a suspicion of fracture may be present, it may be possible to determine the fracture without it, and if the examination discloses no fracture but there are symptoms present which to the ordinary and average physician would, in your opinion, require the further verification by an X-ray machine, and the doctor fails to have such an X-ray taken or at least to urge its being taken upon his patient, he would be negligent. Now you observe perhaps in that last statement a qualification. Ordinarily those of us who become ill or injured are quite willing to place ourselves entirely at the disposition of the doctor we call and follow their advice carefully. Others possibly at times decline the doctor's advice. It is no part of a doctor's duty, who has advised and urged what, in his opinion, and what would in your opinion according to the standard of ordinary skill in the community, be necessary for the proper treatment of the case, to insist upon it against objection upon the part of the patient, but you would have to find that the patient fully understood and was informed of the reasonableness of the requirement and refused to follow the doctor's advice with a full knowledge of the consequences he was bringing upon himself, in order to justify the failure of a physician to take an X-ray, or to treat the patient in any other manner solely because the patient refused to submit to the treatment or to follow the...

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14 cases
  • Smith v. Beard
    • United States
    • Wyoming Supreme Court
    • 18 Febrero 1941
    ... ... from some other source ( O'Brien v. Chicago ... (Ill.) 137 N.E. 214), and there may be a double ... recovery. Mercer v. Ott (W. Va.) 89 S.E. 952; ... Merrill v. Marietta (W. Va.) 92 S.E. 112; ... Jacowicz v. Delaware (N. J.) 92 A. 946; Newar v ... Klatz ... Hanson v. Thelan, 173 N.W. 457. He is also obligated ... to submit to medical treatment. Carey v. Mercer ... (Mass.) 132 N.E. 353; Peterson v. Branton ... (Minn.) 162 N.W. 895; Schultz v. Tasche (Wisc.) ... 165 N.W. 292; Summers v ... ...
  • Barnes v. Berkshire St. Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 7 Noviembre 1932
    ...see Mason v. Winthrop, 196 Mass. 18, 81 N. E. 644;Jaglenaski v. Andersen Coal Mining Co., 214 Mass. 573, 102 N. E. 62;Carey v. Mercer, 239 Mass. 599, 132 N. E. 353;Simoneau v. Keene Electric Railway, 78 N. H. 363, 100 A. 551, L. R. A. 1918A, 620. The present case falls within the rule, not ......
  • Taylor v. Shuffield
    • United States
    • Texas Court of Appeals
    • 25 Mayo 1932
    ...Christie, 180 Ill. App. 334; Bennan v. Parsonnet, 83 N. J. Law 20, 83 A. 948; De Long v. Delaney, 206 Pa. 226, 55 A. 965; Carey v. Mercer, 239 Mass. 599, 132 N. E. 353; Angulo v. Hallar, 137 Md. 227, 112 A. 179; Carraway v. Graham, 218 Ala. 453, 118 So. 807; Patterson v. Marcus, 203 Cal. 55......
  • Chubb v. Holmes
    • United States
    • Connecticut Supreme Court
    • 2 Junio 1930
    ... ... materially contributes to his injury, will prevent a recovery ... in an action for malpractice. Carey v. Mercer, 239 ... Mass. 599, 132 N.E. 353; Merrill v. Odiorne, 113 Me ... 424, 94 A. 753; 48 Corpus Juris, p. 1134. The charge given ... ...
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