Napier v. Greenzweig

• Decision Date: 15 January 1919
• Docket Number: 90.
• Citation: 256 F. 196
• Parties: NAPIER v. GREENZWEIG.
• Court: U.S. Court of Appeals — Second Circuit

256 F. 196

NAPIER v. GREENZWEIG.

No. 90.

United States Court of Appeals, Second Circuit.

January 15, 1919

Action by George Greenzweig, an infant, by Bernard Greenzweig, his guardian ad litem, against Charles D. Napier. Judgment for plaintiff, and defendant brings error. Affirmed.

The defendant in error, who was plaintiff below, will hereinafter be referred to as plaintiff. The plaintiff and his guardian ad litem are citizens of Russia and residents of the Eastern district of New York. The plaintiff in error, who was defendant below, will be hereinafter referred to as defendant, and is a citizen of the United States and a resident of the Eastern district.

The defendant is a physician and surgeon, and was at the times hereinafter referred to and still is attached to the staff of physicians and surgeons at the Kings County Hospital, in the borough of Brooklyn, city of New York. The plaintiff was admitted to the Kings County Hospital on July 7, 1915, to be treated for a derangement of the bones of his legs, commonly known as bow legs.

The third and fourth paragraphs of the complaint alleged as follows:

'Third. That the ailment for which the plaintiff was treated was not a serious ailment, and a proper course of treatment therefor is not dangerous to the patient, and consists, in part, of the application of a plaster cast to the leg.

'Fourth. That that part of the plaintiff's treatment at the said hospital consisting of the application of such cast to the plaintiff's leg, and the care and treatment of the plaintiff thereafter was intrusted by the said hospital authorities to, and was undertaken by, the defendants. But the defendants, and each of them, in violation of their duty to the plaintiff, undertook to and did apply a plaster cast to the foot and leg of the plaintiff too tightly, and so unskillfully, negligently, and unprofessionally, and thereafter applied medicines to the foot and leg of the plaintiff so unskillfully, negligently, and unprofessionally and were thereafter so careless, negligent, and unprofessional in their treatment of the plaintiff, that the said cast restricted the flow of blood to the foot, and the defendants finally found it necessary to amputate and sever the foot and part of the leg of the plaintiff from his body.'

Damages in the amount of $50,000 were asked.

The original action was brought against defendant and one Dr Benjamin E. Wolfort. The jury found in favor of the defendant Wolfort. But they found against the defendant Napier in the sum of $7,500, and judgment has been entered against him, and in favor of the plaintiff, in the amount of $7,709.57.

Nadal, Jones & Mowton, of New York City (Edward P. Mowton, of New York City, of counsel), for plaintiff in error.

Ellenbogen & Selig, of New York City (Samson Selig and John Vernon Bowvier, Jr., both of New York City, of counsel), for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

This is an action for malpractice. It belongs to a class of cases comparatively rare, at least in appellate courts. But occasionally it happens that an attorney, or a physician, or a surgeon, is called upon in a judicial tribunal to defend himself against a charge of a want of skill or a want of care.

In this case the defendant is a surgeon. A surgeon is one who practices surgery, and in the Century Dictionary surgery is defined as:

'Therapy of a distinctly operative kind, such as cutting operations, the reduction and putting up of fractures and dislocations, and similar manual forms of treatment.'

In Webster's New International Dictionary the term 'malpractice' is defined as:

'The treatment by a surgeon or physician in a manner contrary to accepted rules and with injurious results to the patient; hence, any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties; wrongdoing. A question of professional malpractice or negligence is determined by what might be reasonably required under the circumstances of the case.'

The law is well established that a surgeon or physician attending a patient is bound by his contract to possess and to give the case such reasonable and ordinary skill and diligence as surgeons or physicians in similar localities and in the same general line of practice ordinarily exercise in like cases. Wharton's & Stille's Medical Jurisprudence (5th Ed.) vol. 3, Sec. 473. See also Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760, 63 Am.St.Rep. 655; Carpenter v. Blake, 75 N.Y. 12; Hitchcock v. Burgett, 38 Mich. 501; English v. Free, 205 Pa. 624, 55 A. 777.

We have said that a surgeon or physician is bound by his contract to possess and exercise reasonable skill and diligence. His contract undoubtedly imposes such an obligation. But the law imposes such obligation even if there is no contract. Thus in Styles v. Tyler, 64 Conn. 432, 463, 30 A. 165, 176, the court said:

'The obligation of a physician to exercise ordinary care and skill arises not so directly from the contract of employment as from the duty imposed upon him by law, which requires him in the exercise of a skilled and privileged profession to use at his peril that degree of skill and care which the law says shall be requisite for the practice of such profession. The violation of that duty is a wrong which entitles the person who suffers from that wrong to legal redress. This duty, and the right of action consequent on its violation, existed before the law recognized any contract of employment, and when the only compensation a physician could receive for his services was the honorarium paid at the option of the patient.'

In Savings Bank v. Ward, 100 U.S. 195 (25 L.Ed. 621), the Supreme Court of the United States, discussing to some extent the doctrine of malpractice, points out at page 200 that beyond all doubt the general rule is that the obligation of an attorney grows out of contract, and is to his client, who employs him, and is not, in the absence of fraud or collusion, to a third party, who does not employ him, and at page 203 the court points out that there are exceptional cases in which privity of contract is not essential to the maintenance of an action, as where 'a patient' is 'injured by improper medicines prepared by an apothecary, or one is unskillfully treated by a surgeon.'

The liability of the physician and of the surgeon is in this respect not unlike that of an apothecary or pharmacist. If one who compounds or sells medicines carelessly labels a poison as a harmless medicine, and sends it so labeled into the market, he becomes liable to any one who without fault on his part uses it and is thereby injured. In such a case the liability does not arise from contract, but from the duty, imposed by law upon him who falsely labeled it and sent it forth, to avoid acts which in their nature are dangerous to the lives of others. See Thomas v. Winchester, 6 N.Y. 397, 410, 57 Am.Dec. 455, which is the leading case in this country. We recognized the doctrine in a recent case involving the liability of a vendor of unwholesome food products. Ketterer v. Armour & Co., 247 F. 921, 160 C.C.A. 111, L.R.A. 1918D, 798.

Inasmuch as the surgeon's obligation is imposed by the law, the law requires the same degree of care and diligence of the surgeon, or of the physician, when his services are rendered gratuitously as when he receives compensation. Wharton & Stille's Medical Jurisprudence (5th Ed.) vol. 3, Sec. 478; Edwards v. Lamb, 69 N.H. 599, 45 A. 480, 50 L.R.A. 160; Peck v. Hutchinson, 88 Iowa, 320, 55 N.W. 511; Becker v. Janinski (N.Y.) 27 Abb.N.C. 45. So that no question is raised in this case as to whether the child or the child's father (the guardian ad litem) was under agreement to compensate or had compensated this defendant for his services. No such question was presented to us.

In cases of alleged malpractice the burden is upon the plaintiff to establish that the defendant failed to exercise the skill which the law demanded, or that in his treatment of the case he was guilty of negligence. Brown v. Goffe, 140 A.D. 353, 125 N.Y.Supp. 458. The plaintiff must establish this by a preponderance of the evidence.

Wood v. Wyeth, 106 A.D. 21, 94 N.Y.Supp. 360. And in the case at bar the jury were properly instructed in these respects. The court was asked to charge, and did charge, as follows:

'The burden is upon the plaintiff to establish negligence on the part of Dr. Napier by a fair preponderance of the credible evidence, and in the event that he fails to sustain the burden, or in the event that the evidence on the question of negligence on Dr. Napier's part is evenly balanced, the verdict must be for Dr. Napier.'

The law relating to malpractice is well settled. Whatever difficulty there is arises from the fact that its simple and well-settled principles are sometimes difficult in their application. The complaint is that, when it was apparent on July 12th that the cast or the bandages were too tight and interfered with the proper circulation of the blood, as disclosed by the swelling of the toes and their cyanosed condition, the defendant prevented the opening of the cast and the bandages and their removal until July 16th, when gangrenous conditions had set in which made amputation necessary. It is not claimed that on August 21st, when the amputation occurred, it was not necessary, or that it was not skillfully done. The defendant did not perform the operation. All the testimony agrees that from July 16th to August 21st everybody did all they could to make amputation unnecessary. And no fault is found, so far as this defendant is concerned with what happened prior to July 12th, when the defendant first...