Jones v. Stanko

• Decision Date: 28 January 1928
• Docket Number: 20541
• Citation: 160 N.E. 456,118 Ohio St. 147
• Parties: Jones v. Stanko, Admx.
• Court: Ohio Supreme Court

160 N.E. 456

118 Ohio St. 147

Jones v. Stanko, Admx.

No. 20541

Supreme Court of Ohio

January 28, 1928

Physician and patient - Physician to report contagious disease to health officer - Section 4427, General Code - Duty to notify persons in dangerous proximity to smallpox patient - Physician liable in damages for failure to discharge duty when - Charge to jury.

1. Section 4427, General Code, requires every physician to report to the health officer within whose jurisdiction such person is found, any case of contagious disease such as smallpox, which he knows exists or has reason to suspect exists in any patient to whom he renders medical treatment.

2. It is the duty of a physician who is treating a patient afflicted with smallpox to exercise ordinary care in giving notice of the existence of such contagious disease to other persons who are known by the physician to be in dangerous proximity to such patient; and a failure to discharge this duty will constitute negligence on the part of the physician available to any person in the recovery of damages resulting directly and proximately from such neglect on the part of the physician.

3. In a case where the evidence tends to prove that a contagious disease such as smallpox was present in the doctor's patient, and that the symptoms and conditions attending were such as to challenge the doctor's attention thereto, it is the duty of the trial court, when so requested, to properly charge the jury as to the doctor's obligations in that respect, and a refusal so to charge will constitute prejudicial error.

The facts are stated in the opinion.

Messrs Wilson, Hahn & Wilson and Mr. A. M. Henderson, for plaintiff in error.

Mr Hollis E. Grosshans and Mr. Charles Koonce, Jr., for defendant in error.

KINKADE J.

Elizabeth Stanko is the widow and the administratrix of the estate of her deceased husband, Stephen Stanko. This is an action to recover damages resulting from his wrongful death, alleged to have been caused by the negligence of the plaintiff in error Dr. Washington L. Jones. The death of one Alexander Thompson, a neighbor of Stanko, was caused by black smallpox. Dr. Jones was the sole attending physician. He was called on Tuesday and saw the patient, Thompson, every day, and sometimes oftener than once a day, until Saturday of the same week, upon which day the patient died. It is alleged, and the evidence tends to sustain the allegation, that Mr. Stanko inquired of Dr. Jones whether Mr. Thompson was suffering from any contagious disease, and Dr. Jones assured him, that Thompson was not suff- ering from any contagious disease and that he (Stanko) took no risk from contagion by waiting upon Mr. Thompson in his illness. By reason of these assurances from Dr. Jones, Mr. Stanko not only waited upon Thompson prior to his death, but performed certain services with reference to his preparation for burial after death. The neighbors were in and out, doing what little they could in a friendly way to relieve the suffering of Mr. Thompson, and none of them were conscious of the fact that he was suffering from a disease that was extremely contagious, as well as infectious, to wit, black smallpox. There is no doubt that Thompson had black smallpox, and that he died as a result of that disease. It is not at all in dispute that Dr. Jones failed entirely to announce to any one during the period mentioned that Thompson was suffering from black smallpox or any other contagious disease. It is admitted in the record that Dr. Jones failed entirely to notify the health authorities, as required by statute, of the fact that he was then treating Mr. Thompson for a contagious disease.

Mrs. Stanko brought the action for damages, alleging in detail the facts here briefly stated. As a result of that trial, the jury brought in a verdict in favor of the defendant, Dr. Jones. Mrs. Stanko prosecuted error to the Court of Appeals, and assigned, among other errors, the refusal of the trial court to give special requests Nos. 11, 12, and 15 to the jury before argument, when so presented by counsel for Mrs. Stanko. The Court of Appeals reversed the judgment of the trial court solely on the refusal to give these three requests. Dr. Jones prosecutes error here.

Request No. 11 embraced Section 4427 of the Gen- eral Code, which requires a practicing physician,when treating a disease dangerous to the public health or required by the board of health to be reported, to report to the health officer, within whose jurisdiction the person is so found, the name, age, sex and color of the patient, and the house and place in which such person may be found. This request in part was as follows:

"And if you also find from the preponderance of the evidence in this case that said defendant, Washington L. Jones, was the sole...