Milliken v. Heddesheimer

Citation144 N.E. 264,110 Ohio St. 381
Decision Date27 May 1924
Docket NumberNo. 18278.,18278.
PartiesMILLIKEN v. HEDDESHEIMER.
CourtUnited States State Supreme Court of Ohio

110 Ohio St. 381
144 N.E. 264

MILLIKEN
v.
HEDDESHEIMER.

No. 18278.

Supreme Court of Ohio.

May 27, 1924.


Case certified by Court of Appeals, Summit county.

Action by Jacob Heddesheimer, administrator of the estate of Iva J. Triplett, deceased, against C. W. Miliken. Judgment for defendant on the pleadings, leave to amend was refused, and new trial was denied. Judgment reversed, and case certified. Affirmed.-[By Editorial Staff.]

This action was instituted in the court of common pleas of Summit county, Ohio, wherein Jacob Heddesheimer, administrator of the estate of Iva J. Triplett, deceased, on behalf of her surviving husband and children, sought to recover damages for her wrongful death, which it was claimed was caused by one C. W. Milliken. The petition contained two causes of action, the first being as follows:

‘Plaintiff says that the defendant herein, at the time complained of herein, was a practicing physician in the city of Akron, Summit county, Ohio. That on March 1st, 1921, said defendant unlawfully and criminally performed an operation upon the decedent, Iva J. Triplett, for the purpose of procuring an abortion or a miscarriage, said operation not being necessary to preserve the life of the said Iva J. Triplett and said operation being performed without being advised by two physicians to be necessary for that purpose.

‘Plaintiff says that said operation immediately caused the decedent to become extremely ill. That said decedent died on March 9, 1921. That the direct and proximate cause of her death was said criminal operation performed by the defendant as hereinabove stated.’

In the second cause of action it is first averred:

‘For his second cause of action, the plaintiff herein adopts all the allegations contained in his first cause of action, the same as if herein fully rewritten, and says that said operation not only was unlawfully and criminally performed, but was so negligently and carelessly performed that septicemia immediately resulted therefrom.’

The respects in which it is claimed the defendant was negligent in the performance of such operation are then set forth, it being averred that after knowing that septicemia had developed, the defendant concealed that fact so that the family did not know the necessity of the care and attention which her physical condition required, and that if the hospital and medical care and attention which the condition of the deceased demanded had been given at the time death would not have resulted.

The answer of the defendant admitted that on three or four occasions during the month of March, 1921, he professionally attended the said Iva J. Triplett; but otherwise, in substance, the answer was a denial of the material averments of the petition.

A motion for judgment on the pleadings was made by the defendant below, which was granted by the court of common pleas. After the motion was presented, and before the trial court had ruled thereon, the plaintiff asked leave to file an amended petition, the essential parts of which were as follows:

‘Plaintiff says that the defendant, at the time complained of, was a practicing physician in the city of Akron, Summit county, Ohio. That on or about the 1st day of March, 1921, and continuously therefrom until the 9th day of March, 1922, said defendant, in his capacity as such practicing physician, attended and treated said decedent for general peritonitis and septicemia.

‘Plaintiff says that during said period of time the defendant was the only attending physician.

‘Plaintiff says that the defendant was negligent, in that, after becoming aware that said decedent was suffering from septicemia and general peritonitis, he wholly and entirely failed to take any steps or prescribe or give any treatment or treatments to allay or correct said disease, or afect the recovery of said decedent therefrom.

‘Plaintiff alleges that the defendant was further negligent, in that, after knowing said decedent was suffering from septicemia and general peritonitis, and that after knowing that the life of said Iva J. Triplett was endangered thereby, he nevertheless wrongfully concealed said fact, whereby said decedent and her family were prevented from having and from knowing the necessity of the great care and attention which said decedent's physicial condition then demanded and required.

‘Plaintiff alleges the fact...

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