Hendrickson v. Hodkin

• Decision Date: 07 December 1937
• Citation: 11 N.E.2d 899,276 N.Y. 252
• Parties: HENDRICKSON v. HODKIN et al.
• Court: New York Court of Appeals Court of Appeals

276 N.Y. 252

11 N.E.2d 899

HENDRICKSON

v.HODKIN et al.

Court of Appeals of New York.

Dec. 7, 1937.

Action by John Hendrickson against Samuel J. Hodkin, the Park East Operating Corporation, and another. From a judgment of the Appellate Division, Second Department (250 App.Div. 619, 294 N.Y.S. 982) reversing upon the law a judgment of the Supreme Court, Trial Term, for $40,000, entered upon the verdict of the jury in favor of the plaintiff, and dismissing the complaint, the plaintiff appeals.

Judgment of the Appellate Division and that of the Trial Term reversed and remanded.

LEHMAN and FINCH, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second department.

Eugene L. Bondy, of New York City, for appellant.

Leo Fixler, of New York City, for respondent.

HUBBS, Judge.

The respondent Park East Operating Corporation is a private hospital operated for profit. The question involved relates to the duty which it owed to appellant, a patient. Appellant, a truck driver, had a sore on his lower lip for which he had received treatment at various hospitals, but it continued to trouble him. He heard of the defendant Rigley, who had been a chauffeur and also sold ointments to cure skin diseases. In 1933, Rigley returned to Ireland, his native country. On his return to New York he brought back an old remedy for the cure of cancer which had been used in his family for 200 years; also Irish newspaper accounts of cures made by the use of the salve. Rigley arranged a meeting with appellant at the home of a man named Smith. He showed appellant Irish newspapers containing accounts of cures made by the use of the salve. He stated that he had cured a cancer on Smith's face and showed him a bottle which he said contained the cancer removed from Smith's face. He told appellant that the sore on his lip was just a crab, and said he could sure it in thirty-one days. It does not appear that Smith ever suffered from a cancer. Two other meetings took place at which Rigley tried to persuade appellant to try the cure. At the third meeting, appellant's brother, who was expected to furnish the money to pay for the treatment, was present, and he told appellant he would not be a party to the matter unless a doctor approved and supervised the treatment. Appellant then told Rigley that he insisted upon having a doctor. A doctor, who was a relative of appellant, was called in, but he advised against any treatment except at a hospital and under a physician's supervision. Later Rigley telephoned appellant that he had secured a doctor and thereafter he took appellant to the office of the defendant, Dr. Hodkin, whom appellant had never met before. The doctor, after giving appellant a superficial examination, told him that it was a very serious case and that a cure would cost $10,000. Later, he reduced the amount to $3,000. The doctor and appellant's wife talked over the telephone with appellant's brother. Some kind of an arrangement was made, and on March 22, 1933, appellant was taken to respondent's hospital. There is expert testimony from hospital physicians that at the time the small superficial cancer on appellant's lip had been cured by the treatment which he had received at the other hospitals where he had been treated and that he was only suffering from the after effect of the radium treatment which he had received. Appellant expected to be taken to Wyckoff Hospital, but while on the way in an automobile was told by Rigley that Dr. Hodkin had made arrangements at Park East Hospital. Rigley at the same time told him certain papers would have to be signed as a mere formality. Upon entering the hospital appellant found Dr. Hodkin there, who introduced Rigley to Sidney Goodwin, the superintendent and executive manager of the hospital, as ‘the man who has the cure.’ Appellant signed, without reading, certain papers which he was assured were mere formalities to relieve Rigley in case of any unusual accident and had nothing to do with the treatment. Appellant was placed in bed, and Rigley, in the presence of Dr. Hodkin, proceeded to grind an arsenic compound and make a paste. He said, ‘The quicker I get that plaster on the better.’ Dr. Hodkin lined out on appellant's chin where the plaster should be placed and told Rigley, ‘This is where you want to put the stuff on.’ Rigley said, ‘No, I don't want it that way. I want it my way.’ The doctor said, ‘All right, go ahead,’ and left the room. He did not return for over two weeks.

After he left, Rigley scratched appellant's chin until the blood came and then applied the paste and fastened it on with a bandage. During the time the hospital nurse was in the room, Rigley told her he was not a doctor. Referring to the paste, Rigley told her that it contained white arsenic and herbs; that it was the most powerful poison in the world, but that his herbs controlled it. When Rigley left he gave the nurse his telephone number and told her to call him if it began to hurt. Rigley's name and telephone number were written on a hospital record. In two or three days appellant commenced to suffer pain and his face commenced to swell. Rigley put new skin on the lip where the abrasion was in an effort to stop the flow of saliva. He told the nurses to administer aspirin and whisky in case of pain, and they did so. Rigley was present most of the time, ‘in and out all day long.’ He told the nurse how to put the bandage back on if it fell off. Every day Rigley brought as many as eight or ten people into the room, took off the bandage and demonstrated his treatment, gave a talk on his cure exhibited pictures of Smith, and clippings from the papers in the presence of the nurse. After appellant had been in the hospital two or three weeks, Dr. Hodkin came into his room with Mr. Goodwin and a hospital doctor. He said, ‘I will show you this * * * and see how he is progressing.’ He took the outer bandage off and pulled down a part of the bandage with the paste on. He said, ‘I don't know a darn thing about this * * * this is all new to me.’ The hospital physician asked him, ‘Didn't you have that analyzed or looked into?’ He replied, ‘No. It is his secret. The only one that knows anything about it is him [Rigley].’ He said he could not have it analyzed because there are herbs in it and you could not find out what the herbs are. ‘The herbs nobody can find out. He is the only one that can get it.’ Mr. Goodwin, the superintendent, said: ‘We will have to play along with him [Rigley]. If everything comes out all right, we will be all taken care of.’ One right appellant suffered a hemorrhage and the nurse telephoned Rigley. On one occasion when appellant had a hemorrhage a house physician was called in to stop it. The paste was...