Hunter v. Burroughs.*

• Decision Date: 13 June 1918
• Citation: 96 S.E. 360
• Parties: HUNTER. v. BURROUGHS.*
• Court: Virginia Supreme Court

96 S.E. 360

HUNTER.

v.BURROUGHS.^*

Supreme Court of Appeals of Virginia.

June 13, 1918.

Error to Law and Chancery Court of City of Norfolk.

Action by Benjamin B. Burroughs against James W. Hunter, Jr. Judgment for plaintiff, and defendant brings error. Affirmed.

This is an action of trespass on the case by the defendant in error, plaintiff in the court below, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, for damages alleged to have been occasioned to the plaintiff by malpractice of the defendant, a physican, in and about the diagnosis of the disease of eczema with which the legs and ankles of the plaintiff were affected; the treatment thereofwith X-rays by means of a certain electrical instrument or appliance; the lack of proper treatment; and the treatment thereof with salves, etc.

The amended declaration, which alone need be considered, contains six counts. The malpractice alleged in the several counts, briefly stated, was as follows:

(a) In the first count it is alleged that the defendant "did not possess and use reasonably sufficient knowledge and experience as to the nature and character of the said eczema to enable him to prescribe and apply the treatment and remedies which the same reasonably required; and by reason thereof did prescribe and empoly an X-ray or X-ray treatment therefor, which was wholly improper, inappropriate, and hurtful in the treatment of the said eczema with which his, the said plaintiffs, legs and ankles were affected, in that, in so treating the same for the plaintiff, he, the defendant, subjected them to the influence of certain rays of light, so produced by an electric current, which was too powerful for proper use on that occasion, and did place and apply such electrical instrument or appliance too close to the plaintiff's said legs and ankles, and did subject the plaintiff's said legs and ankles to the influence of said X-rays produced by said instrument or appliance for an unreasonably long time, and did subject the plaintiff's said legs and ankles to the influence of said X-rays too often, in each of which particulars the said X-rays or X-ray treatment, which the said defendant used and employed, was wholly improper, inappropriate, and hurtful for the treatment of the eczema with which the plaintiff's said legs and ankles were affected." (Italics supplied.)

(b) In the second count it is alleged that the defendant carelessly and negligently failed to exercise due and reasonable care and skill, such as the nature of the plaintiff's disease and the character and nature of the instrument and appliance which was used by the defendant in administering the said X-ray or X-ray treatment to the plaintiff's said legs and ankles reasonably required, in this, to wit: That he did carelessly and negligently subject them to the influence of certain rays of light so produced by an electric current which was too powerful for proper use on that occasion, and "did carelessly and negligently place and apply such * * * X-rays * * * so produced * * *" and "by reason of each of the said acts and conduct on the part of the defendant, the said treatment so administered became and was dangerous when used and applied to the plaintiff's said legs and ankles * * * and * * * was wholly improper, inappropriate, and hurtful for the treatment of the eczema with which the plaintiff's said legs and ankles were affected." (Italics supplied.)

(c) In the third count it is alleged that the defendant "did not possess and apply reasonably sufficient knowledge and experience, care, and skill to anticipate and foresee the probable effect which the application of the said X-ray or X-ray treatment as used by him upon the plaintiff's legs and ankles would produce, and to apply reasonably proper and appropriate prescriptions, medicines, and remedies thereto, after using the same as aforesaid, in order to prevent them from being burned, and the flesh and skin to which said X-ray was so applied from being destroyed, and in order to prevent ulcers, sores, and other injuries from resulting therefrom; but, on the contrary, by "reason thereof, did fail to reasonably anticipate and foresee the probable effect which the said X-ray or X-ray treatment as used and employed by him upon the plaintiff's legs and ankles would produce, and by reason thereof did fail to apply reasonably proper and appropriate medicines, preventatives, and remedies thereto, after the same had been used and employed by him, to prevent the skin and flesh to which the said X-ray or X-ray treatment was so applied by the defendant from being destroyed, and to prevent ulcers, sores and other injuries resulting therefrom." (Italics supplied.)

(d) In the fourth count, in addition to the charges that the defendant did not possess and use reasonable knowledge, experience, care and skill in recognizing and understanding the effect which the said X-ray or X-ray treatment had produced, and by reason thereof failed to prescribe and use such reasonably proper and appropriate medicines and remedies as from time to time their condition required, the allegation is added that, by reason of such lack of possession and use of such knowledge, experience, care, and skill, the defendant "did prescribe from time to time wholly improper, inappropriate, and hurtful medicines and so-called remedies, being two certain salves, which were prescribed by and are known to him, each of which were wholly unsuited to the condition of the plaintiff's said legs and ankles, but, on the contrary, were calculated to produce and did produce further injuries thereto." (Italics supplied.)

(e) In the fifth count it is alleged "that the blood, skin, and flesh of some persons are more susceptible to the influence of the X-ray than are the blood, skin, and flesh of other persons, and the same treatment for the same disease will affect some persons beneficially, while other persons will be greatly burned and injured thereby. Wherefore, in the use and application of the said X-ray treatment, there are required special and peculiar knowledge and experience as to when such treatment is proper, and as to the manner of using the said instrument or appliance when the same is used, and that special and peculiar care and skill are required in applying and using it, in order to successfully operate and apply the same, and peculiar and special knowledge as to the effect of the application and use of the saidelectrical treatment or appliance and as to the proper treatment of the plaintiff after the application thereof are required, and to that end in the exercise of ordinary care it became the defendant's duty to make careful preliminary tests and examination of the physical condition of the patient, and the parts to be treated before applying the X-ray treatment thereto, in order to ascertain their susceptibility to its influence, and to determine the correct treatment therefor, and to successfully prevent injurious, instead of beneficial results from its use; and, unless such knowledge and experience, care and skill, are employed in the use and application thereof, and unless the physician using the same has made such preliminary tests and examination and acquired such peculiar and special knowledge and experience as to the effect which said treatment will probably produce upon the patient, and unless such peculiar knowledge and experience, care and skill, are employed in applying said treatment, there is great danger and strong probability that the parts of the patient's body to which the same is applied will become so burned and affected that the skin and flesh will be destroyed, and great sores, ulcers, and disease will result therefrom, all of which by the exercise of ordinary care and skill on his part, was known, or should have been known, to the defendant, and that the defendant "did carelessly and negligently fail and neglect to make such a test or examination as in the exercise of ordinary care it was his duty to make of his said legs and ankles before applying the said X-ray treatment thereto, in order to ascertain their susceptibility to its influence and to determine the correct treatment thereof, and to successfully prevent injurious instead of beneficial results from its use, but did carelessly and negligently subject them to the influence of certain rays of light so produced by an electric current, which were unsuited and inappropriate as a remedy for the plaintiff's said legs and ankles in their then condition, and did, in view of the condition of the plaintiff's skin, flesh, and blood at that time, and their susceptibility to the influence of said X-ray treatment, carelessly and negligently place and apply said electrical instrument or appliance so close to the said plaintiff's said legs and ankles, and did subject them to the influence of said X-ray so produced by said instrument or appliance for an unreasonably long time, and did subject them to the influence of said X-rays too long." (Italics supplied.)

(f) In the sixth count it is alleged that the plaintiff consulted the said defendant "as a physician regarding said eczema and as to the proper treatment therefor; * * * that thereupon it became and was the duty of the defendant to possess and use reasonable knowledge, experience, care, and skill in recognizing and understanding the effect which the remedies and treatment prescribed and used by him would probably produce." This count then makes the same allegation as the fifth count as to some persons being more susceptible to the influence of X-rays than others, and alleges that by reason of which "there is great danger that as a result of the use of the X-ray treatment unforeseen injuries will be sustained thereby, and that the parts of the patient's body to which the same are applied will become so burned and affected that the skin and flesh will be destroyed, and great sores, ulcers, and disease will result therefrom, all of...