Hardy v. Dahl
| Decision Date | 14 October 1936 |
| Docket Number | 170. |
| Citation | 187 S.E. 788,210 N.C. 530 |
| Parties | HARDY v. DAHL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Henderson County; F. D. Phillips, Judge.
Action by C. A. Hardy, administrator of Paul C. Hardy, deceased against Dr. Oliver Dahl. From an adverse judgment, defendant appeals.
New trial.
That defendant, a doctor of naturopathy, was engaged in treatment of patients without having obtained license, was not evidence of negligence in treatment of patient, and in malpractice action defendant's instruction presenting that view was improperly refused (C.S. §§ 6704, 6708).
Action for damages for wrongful death alleged to have been caused by negligence and want of skill on the part of the defendant in the treatment of a disease with which plaintiff's intestate was suffering, resulting in the death of said intestate.
It was alleged that the defendant held himself out as a doctor of naturopathy, as one possessing the requisite skill and learning to diagnose and treat diseases by natural methods without the administration of drugs or surgery; that without having been licensed or qualified under the statute as a nondrug-giving practitioner and without possessing the requisite knowledge, learning, and skill in the subjects of anatomy, physiology, and diagnosis, he undertook to treat plaintiff's infant son, the intestate, with the result that the child died as a result of the negligence and want of skill of the defendant; that the child had diphtheria, which the defendant negligently and unskillfully diagnosed and improperly treated as tonsilitis, permitting the child to have only fruit juices for the space of two weeks and failing to give proper care and attention until the child was almost in extremis, when regular medical practitioners were called in, diphtheritic antitoxin administered, but too late to save the child's life.
Defendant denied the allegations of negligence and want of skill in the treatment of plaintiff's intestate and alleged that the treatment given was in accord with the teachings and methods of naturopathy, which he held himself out as and was qualified to practice, and denied that the death of the child was due to any act or neglect on his part.
In apt time the defendant requested the court to charge the jury as follows:
The following issues were submitted to the jury:
"1. Did the defendant, unlawfully, hold himself out to the public as being one qualified to diagnose, operate prescribe for and treat diseases, pain, injury, deformity or physical conditions of the human body, as alleged in the complaint?
2. Did the defendant unlawfully diagnose, prescribe for and treat plaintiff's intestate, as alleged in the complaint?
3. Was the death of plaintiff's intestate caused by the negligence and unskillful treatment of the defendant, as alleged in the complaint?
4. What amount of damages, if any, is plaintiff entitled to recover of the defendant?"
Upon each of the first two issues the court charged the jury to answer, "Yes," if they found the facts to be as the evidence tended to show.
The jury for their verdict answered the first, second, and third issues, "Yes," and fixed the damages under the fourth issue at $1,400.
From judgment on the verdict, the defendant appealed.
Redden & Redden and J. E. Shipman, all of Hendersonville, for appellant.
O. B Crowell and R. L. Whitmire, both of Hendersonville, for appellee.
The defendant held himself out as a nondrug-giving practitioner of that system or school for the healing of human diseases known as "naturopathy." By virtue of section 6704 of the Consolidated Statutes, the statutory provisions for the examination of applicants and the issuance of certificates for the practice of osteopathy were made to apply
It appeared in evidence that the defendant had graduated from and held a diploma from the American School of Naturopathy, had practiced in New York and in Florida, and had, upon examination in the latter state, been granted a certificate to practice there, but had not stood the examination or received the certificate required by C.S. § 6704 in North Carolina.
It further appeared that the plaintiff, the father and administrator of the estate of the intestate, was himself "a believer in the profession of naturopathy the same as Dr. Dahl"; that he knew the defendant well and had previously employed him to treat other members of his family on several occasions; that plaintiff's brother was a practitioner of naturopathy; that plaintiff did not believe in the treatment prescribed by physicians for diphtheria in the administration of antitoxin "unless absolutely necessary."
But plaintiff's adherence to the same school of thought as the defendant would not prevent his recovering damages for the death of his intestate if he can show that the death of the child proximately resulted from the negligence and unskillful treatment of the defendant according to the method he held himself out to know and practice. "In calling a physician, a person is presumed to elect that the treatment shall be according to the system or school of medicine to which such physician belongs." Van Sickle v. Doolittle, 184 Iowa, 885, 169 N.W. 141, 142. "When a doctor accepts professional employment, he is only required to exercise such reasonable care and skill as is usually exercised by doctors in good standing of the same school of practice." Nelson v. Dahl, 174 Minn. 574, 219 N.W. 941, 942.
In determining liability in a civil action for damages on the ground of negligence, the defendant was not required to possess the highest technical skill nor the wide scientific knowledge and learning of the well-recognized schools of medicine and surgery, nor to exercise the utmost degree of care,...
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