Champs v. Stone

• Decision Date: 27 March 1944
• Citation: 74 Ohio App. 344,58 N.E.2d 803
• Parties: CHAMPS v. STONE.
• Court: Ohio Court of Appeals

58 N.E.2d 803

74 Ohio App. 344

CHAMPS v. STONE.

Court of Appeals of Ohio, First District, Hamilton.

March 27, 1944

See also 73 Ohio App. 319, 56 N.E.2d 251.

Louis R. Schear, of Cincinnati, for appellant.

Walter W. Harris, of Cincinnati, for appellee.

ROSS Presiding Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, in favor of the defendant entered upon a verdict which such court instructed after the opening statement of counsel for plaintiff and his stipulation as to what his evidence would show.

'Mr Schear: If the court please and ladies and gentlemen of the jury, the action here is one for personal injuries. We make in our case no claim of any damages that resulted as a loss of time. Our action, as I stated to you Before, is one based upon a socalled malpractice action, a case of a patient against a physician.

'Our case sets forth that the defendant in the case represented himself as a duly qualified physician in this vicinity by signs and other means, and that the plaintiff as a partient accepted the invitation extended to the public by the defendant, the doctor in the case, and called upon him for treatment.

'And that this was somewhat around the latter part of 1941 or the early part of 1942, and that a treatment was administered with a needle, that is, I refer to it as a needle, the needle the doctor or physicians use. That at that time the defendant doctor advised the plaintiff that it was necessary to return to take a series of injections, constituting a series of ten injections. That at that time the plaintiff in this case was contemplating, or it was around the time he was to be married, or was married. The evidence will disclose that his purpose of the call was originally for the blood test and that the doctor advised him it was necessary to follow through with a series of injections.

'I believe the evidence will show to you ladies and gentlemen of the jury that the plaintiff did return to the doctor; that the doctor was so grossly intoxicated and under the influence of alcohol that he could (not) comprehend to carry through a proper treatment. In other words, he was physically unfit to administer any aid to a patient.

'I believe the evidence, ladies and gentlemen, will show you that the plaintiff protested about the doctor going forward, but nevertheless, he did go forward and he was unable to make a proper injection, and that he did inject the needle into the skin and flesh and that blood then came profusely from the arm of the plaintiff and that a swelling and a growth continued upon his right arm where the needle was inserted just about between the hand and the forearm, and that growth was quite large in size; that it lasted for some period of time and that thereafter the plaintiff returned to the defendant and that the defendant advised him that he could do nothing for him, and that thereafter the plaintiff was treated by another physician, and that still later another physician treated him.'

It is also stated in the bill of exceptions:

'That is what we are here for today and asking you ladies and gentlemen to determine.

'Mr. Harris: If the court please, I move for judgment on the opening statement of counsel.

'(Thereupon the jury was excused from the court room and counsel for plaintiff and counsel for defendant argued the motion to the court, after which the jury was returned to the court room and resumed their seats in the jury box, and the following proceedings were had:)

'The Court: Ladies and gentlemen of the jury, this is going to be a very short case and you are going to have nothing to do. Some of you were before me yesterday and I said I hoped the next time you were before me you would have to do the work and I would not have it all to do.

'It is agreed in this case as follows: That the plaintiff went to the defendant for the purpose of having a blood test made by the defendant physician; that the defendant at said time was grossly intoxicated; that the plaintiff saw that the defendant was grossly intoxicated and refused to be treated by him; that the defendant insisted upon treating the plaintiff and the plaintiff submitted to being treated by him, and that the plaintiff claims that as a result of the treatment, which was improper and not according to what an ordinary physician--that by reason of not exercising the skill a physician should exercise he was damaged.

'Mr. Harris: We agree that would be the plaintiff's testimony.

'The Court: Yes, of course.

'On the opening statement, the defendant moves for a directed verdict and I grant that motion on the ground that if I myself take the chance of being treated by someone whom I ought not to take the chance of being treated by. In other words, if I go to a doctor who is drunk and I know he is drunk and let him treat me because he insists on treatment (treating) me I take the consequences thereof and that is my own fault, in plain language, and I am guilty of negligence in law which...