Nelson v. Harrington

• Decision Date: 08 November 1888
• Citation: 40 N.W. 228,72 Wis. 591
• Parties: NELSON v. HARRINGTON.
• Court: Wisconsin Supreme Court

72 Wis. 591

40 N.W. 228

NELSON

v.HARRINGTON.

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Dane county.

This is an action brought by Thomas Nelson, by guardian ad litem, against Charles F. Harrington, to recover damages for the alleged malpractice of the defendant as a physician. The substance of the complaint is that for several years before September, 1885, the defendant had been engaged in the practice of medicine and surgery in the city of Madison, and during all that time advertised and held himself out to the public as a physician, and attended to all such diseases and ailments of the human body as a physician is usually called upon to treat, and such as are ordinarily treated by physicians of good standing and repute in said city of Madison; that he also gave out that he possessed some mysterious power, insight, or skill, not possessed by physicians in general, and for that reason could cure diseases generally thought to be incurable, and could relieve ordinary diseases and ailments more speedily and effectually than other physicians in good standing and repute as such; that shortly before September 1, 1885, the plaintiff, Thomas Nelson, (then about 15 years of age,) was afflicted with some disease of his right hip, and on or about that date his father called the defendant, as such physician, to attend him, and treat him for said disease; that the defendant undertook to attend the plaintiff as a physician, and treat and care for him in a proper manner as such physician, but that, disregarding his duty in the premises, the defendant wrongfully and carelessly failed to make a proper or ordinary examination of the plaintiff, such as a physician of ordinary skill, care, or prudence would have made, and pronounced said disease to be rheumatism when it was in fact a disease of the hip joint, which disease has well-known, peculiar signs and symptoms, which a physician of ordinary skill and care would at once detect; that there are well-known and acknowledged remedies for such disease, which all physicians of ordinary skill and prudence invariably use in the treatment thereof; that the defendant, in disregard of his duty as such physician, negligently and unskillfully treated the plaintiff for rheumatism, and not hipjoint disease, and continued so to treat him until about the middle of the following January; that during such time the defendant encouraged the plaintiff to walk persistently, and use his right leg in walking, asserting that walking was beneficial to him; that the plaintiff grew constantly worse under such treatment, until he could not walk, and suffered great pain and distress during the time, but the defendant constantly asserted, when told he was getting worse, that he was in fact getting better; that in January, 1886, after the plaintiff had wholly lost the use of his leg, other physicians were called in, and by most persistent and thorough medical treatment the plaintiff, to some extent, recovered the use of his leg, but will be a cripple for life; that, if the defendant had treated the plaintiff properly, he would have been speedily and completely restored to health, and would have recovered the full use of his leg; also that he would have been relieved in a great measure from the suffering he was compelled to endure. The defendant answered that, during the time stated in the complaint, he had been what is commonly known and understood as a spiritualist and clairvoyant physician, and, as such, has treated diseases and ailments of the human body, and prescribed for patients calling upon him for treatment; most of his practice having been in and about the city of Madison. The answer proceeds as follows: “That on the 1st day of September, 1885, the said plaintiff, in person or by his father, Tollef A. Nelson, called upon this defendant for treatment for some ailment of which he, the said plaintiff, was then suffering; but defendant alleges that whatever treatment he gave the said plaintiff was strictly in accordance with the ordinary and customary practice and system of practice as used and employed by spiritualists and clairvoyants in diagnosing, attending, and prescribing for diseases and ailments of the human body, and that he was employed by the said plaintiff and the said Tollef A. Nelson to treat the said Thomas Nelson only as a spiritualist and clairvoyant, and not in any manner as an ordinary physician or surgeon possessed of the ordinary knowledge or skill belonging to physicians and surgeons and doctors of medicine in the regular schools of practice; that the said Tollef A. Nelson and the said Thomas Nelson both well knew the manner of diagnosing and prescribing for diseases employed by this defendant, and well knew that this defendant employed no other and had no other manner or method of determining or diagnosing diseases and ailments of the human body before the said plaintiff came to this defendant; that said plaintiff came to this defendant desiring and expecting this defendant to diagnose said disease, and prescribe for the same as a spiritualist and clairvoyant physician. Defendant further alleges, on information and belief, that the said Thomas Nelson was, at the time of said treatment, afflicted with some rheumatic affection of his limb and hip, from which he had been suffering for a long time prior to calling this defendant to treat said ailment.” The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff. The testimony and proceedings upon the trial, so far as the same are essential to an understanding of the exceptions considered, are sufficiently stated in the opinion. The defendant appeals from the judgment.Rogers & Hall, for appellant.

Pinney & Sanborn, for respondent.

LYON, J., ( after stating the facts as above.)

The question has been raised whether this is an action for the breach of a contract, or one sounding in tort, for the alleged unskillful and negligent manner in which the defendant, as a physician, performed his duty to the plaintiff. Although the complaint alleges the implied contract of the defendant to treat the plaintiff in a skillful and proper manner, yet the gravamen of the action is alleged to be that the defendant disregarded his duty in the premises by negligently, wrongfully, and carelessly failing to make a proper diagnosis of the plaintiff's disease, and to prescribe proper remedies therefor. These allegations characterize the action. They show it to be solely for a breach of defendant's duty as a physician, founded upon his legal obligations as such, without reference to the implied contract. The contract is stated in the complaint as mere matter of inducement, and might as well have been omitted. It must be held, therefore, that the action is for the breach of duty,--the negligence and wrong,--and not upon contract. Wood v. Railway Co., 32 Wis. 398. The general rule of law is that a physician or surgeon, or one who holds himself out as such, whether duly licensed or not, when he accepts an employment to treat a patient professionally, must exercise such reasonable care and skill in that behalf as is usually possessed and exercised by physicians or surgeons in good standing, of the same system or school of practice, in the vicinity or locality of his practice, having due regard to the advanced state of medical or surgical science at the time. This rule is elementary. It has its foundation in most persuasive considerations of public policy. Its purpose is to protect the health and lives of the public, particularly of the weak or credulous, the ignorant or unwise, from the unskillfulness or negligence of medical practitioners, by holding such practitioners liable to respond in damages for the results of their unskillfulness or negligence. Citation of authority to support the rule would be superfluous. It was substantially (perhaps not so fully) laid down and applied in Gates v. Fleischer, 67 Wis. 504, 30 N. W. Rep. 674, and is sustained by numerous cases, many of which are cited in the briefs of counsel on both sides.

The defendant is what is known as a “clairvoyant physician,” and held himself out, as other physicians do, as competent to treat disease of the human system. He did not belong to, or practice in accordance with the rules of, any existing school of physicians, governed by formulated rules for treating diseases and injuries, to which rules all practitioners of that school are supposed to adhere. The testimony shows that his mode of diagnosis and treatment consisted in voluntarily going into a sort of trance condition, and while in such condition to give a diagnosis of the case, and prescribe for the ailment of the patient thus disclosed. He made no personal examination, applied no tests to discover the malady, and resorted to no other source of information as to the past or present condition of the plaintiff. Indeed, he did not profess to have been educated in the science of medicine. He trusted implicitly to the accuracy of his diagnosis thus made, and of his prescriptions thus given.

The general rule above stated requires of one holding himself out as a physician the exercise of the same skill and care as is ordinarily exercised by physicians in good standing, who belong to the same school of medicine, and practice under the same rule. To constitute a school of medicine under this rule, it must have rules and principles of practice for the guidance of all its members, as respects principles, diagnosis, and remedies, which each member is supposed to observe in any given case. Thus, any competent practitioner of any given school would treat a given case substantially the same as any other...