Force v. Gregory

CourtSupreme Court of Connecticut
Citation27 A. 1116,63 Conn. 167
PartiesFORCE v. GREGORY.
Decision Date22 May 1893

Appeal from district court of Waterbury; Bradstreet, Judge.

Action by Mabel Force, by her next friend, against Edward P. Gregory. Judgment for plaintiff. Defendant appeals. Reversed.

J. W. Webster, for appellant.

C. G. Root, for appellee.

FENN, J. This is an action by a minor child to recover damages against the defendant, who is a homeopathic physician, for alleged malpractice in treating her for ophthalmia. The jury returned a verdict for the plaintiff, and from the judgment rendered thereon the defendant appealed to this court.

The only questions presented, which are necessary to consider, relate to the charge of the court to the jury. Evidence was offered to show that the defendant, in treating the plaintiff, adopted the remedies prescribed by the homeopathic practitioners. It appeared that the allopathic school of medicine would treat such a case differently, and in the latter way the plaintiff claimed that she ought to have been treated. The defendant asked the court to charge the jury "that treatment by a physician of one particular school is to be tested by the general doctrines of his school, and not by those of other schools." The court refused to so charge, and charged as follows: "In regard to that matter, I will say that the defendant's negligence or want of skill in the treatment of the plaintiff's eye must be determined by all of the evidence in the case, and if the defendant adopted the treatment laid down by one particular school of medicine, and the medical testimony offered by the plaintiff related to treatment prescribed by a different school, you will weigh the testimony, having regard to any bias or prejudice that might influence the testimony of those who belonged to a different school from that of the defendant You should also take into consideration the training and education of the defendant for his profession, the experience which he has had, and the degree of skill with which he handled the case, all bearing upon the question whether the defendant used ordinary care and skill in the treatment of the plaintiff." The defendant claims that the court erred, both in refusing to charge as requested, and in charging as it did.

In the absence of special contract physicians and surgeons, by holding themselves out to the world as such, impliedly contract that they possess the reasonable and ordinary qualifications of their profession, and are under a duty to exercise reasonable and ordinary care, skill, and diligence. Landon v. Humphrey, 9 Conn. 209; Kendall v. Brown, 74 Ill. 232; Small v. Howard, 128 Mass. 131; Baikal v. Prescott, 64 Me. 305; Leighton v. Sargent, 31 N. H. 119; Ely v. Wilbur, 49 N. J. Law, 685,10 Atl. 385, 441; Potter v. Warner, 91 Pa. St. 362; Hathorn v. Richmond, 48 Vt. 557; Gates v. Fleischer, 67 Wis. 504, 30 Ni W. 674. In determining what constitutes reasonable and ordinary care, skill, and diligence, the test is that which physicians and surgeons in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases. Hathorn v. Richmond, supra; Utley v. Burns, 70 Ill. 162; Almond v. Nugent, 34 Iowa, 300; Small v. Howard, supra; Leighton v. Sargent supra. In addition to this, however, regard must be had to the advanced state of the profession at the time of the treatment. Small v. Howard, supra; Gates v. Fleischer, supra; Smother v. Hauks, 34 Iowa, 286; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228.

Premising these general principles, we come to the precise question presented by the appeal: Ought the defendant's request to charge to have been complied with? And was the charge, as given, correct and sufficient? The language of the request may be found in Patten v. Wiggin, 51 Me. 594, where the following charge was held to be correct: "If there are distinct and different schools of practice, and a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, and not by those of other schools. It is to be presumed that the parties so understood it. The jury are not to judge by determining which school, in their own view, is best" And the same principle was clearly stated, in an able opinion, in Bowman v. Woods, 1 Greene, 441, and we are aware of no authority to the contrary. But, notwithstanding this, it seems to us that the inherent difficulty in an endeavor to vindicate the action of the court below is not because the court failed to charge in the identical language of the request, nor because of the language actually used by the court, which appears correct so far as it goes, but rather because the court, in refusing to charge as requested, and only charging as it did, omitted to bring to the attention of...

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34 cases
  • State v. Smith
    • United States
    • Idaho Supreme Court
    • 7 Febrero 1914
    ... ... practicing in the same vicinity or vicinities of the same ... kind in similar localities. (Force v. Gregory, 63 ... Conn. 167, 38 Am. St. 371, 27 A. 1116, 22 L. R. A. 343; ... Bowman v. Woods, 1 Greene (Iowa), 441; Patten v ... Wiggin, 51 Me ... ...
  • Morrison v. MacNamara
    • United States
    • D.C. Court of Appeals
    • 2 Octubre 1979
    ...means of transportation and communication, could not be expected to exhibit the skill and care of urban doctors. See Force v. Gregory, 63 Conn. 67, 27 A. 1116 (1893); Smothers v. Hanks, 34 Iowa 286 (1872); Tefft v. Wilcox, 6 Kan. 46 (1870); Small v. Howard, 128 Mass. 131 (1880). See general......
  • Katsetos v. Nolan
    • United States
    • Connecticut Supreme Court
    • 20 Abril 1976
    ...of different schools of thought in the medical profession. See Geraty v. Kaufman, 115 Conn. 563, 571, 162 A. 33, and Force v. Gregory, 63 Conn. 167, 170, 27 A. 1116, holding that where there are distinct and different schools of thought a physician is to be judged only by the practice of hi......
  • Siirila v. Barrios
    • United States
    • Michigan Supreme Court
    • 21 Diciembre 1976
    ...the physician to adhere to that standard characteristic of the Same community in which he or she practices. E.g., Force v. Gregory, 63 Conn. 167, 27 A. 1116 (1893) cited at 60 Ky.L.J. 210, fn. 3. This approach was rejected in our state in Pelky v. Palmer, 109 Mich. 561, 564, 67 N.W. 561 (18......
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