State v. Housekeeper

• Decision Date: 10 January 1889
• Citation: 16 A. 382,70 Md. 162
• Parties: STATE, TO USE OF JANNEY ET AL., v. HOUSEKEEPER ET AL.
• Court: Maryland Court of Appeals

16 A. 382

70 Md. 162

STATE, TO USE OF JANNEY ET AL., v. HOUSEKEEPER ET AL.

Court of Appeals of Maryland

January 10, 1889

Appeal from circuit court, Harford county.

Action by the state of Maryland, to the use of Mary R. Janney and Margaret O. Janney, infants, by next friend, etc., and John N. Janney against Philip B. Housekeeper and David L. Gifford for the death of Matilda Janney. Plaintiffs appeal.

Argued before ALVEY, C.J., and STONE, ROBINSON, MCSHERRY, IRVING MILLER, and YELLOTT, JJ.

George L. Van Bibber, William Young, W. T. Warburton, and Albert Constable, for appellants.

George Y. Maynadier, John W. Falls, William S. Evans, and C. C. Crothers, for appellees.

YELLOTT J.

An action for damages was brought against the appellees, who are physicians residing in Cecil county. It is alleged in the declaration that they caused the death of one Matilda Janney by unskillfully or wrongfully performing a surgical operation. The action was brought in the name of the state for the benefit of the appellants, one of whom was the husband, and the others were the children, of the deceased. Under the provisions of article 67 of the Maryland Code, if the death is caused by the wrongful act, neglect, or default of the defendant, a suit may be instituted for the benefit of the husband, wife, parent, or child of the deceased. The evidence shows that the deceased had been afflicted by the formation of a lump in her right breast. It was supposed, at first, to be a tumor, but afterwards ascertained to be a cancer. The defendant Housekeeper, a regular physician, was consulted, and advised a surgical operation. A day for the performance of the operation was appointed, and the two defendants and another physician were present, and performed the operation by cutting off the entire right breast. The operation was performed about the 1st of June, and the death occurred on the 5th of December following, and is not attributed with any degree of certainty to the effects of the surgical operation. Some portions of the evidence tend to prove that the wound caused by the surgical instruments was entirely healed, and that death was produced by tubercular meningitis. In the conflict of testimony this was a fact to be determined by the jury.

The husband of the deceased, who is one of the equitable plaintiffs, relies upon the fact that, although he expressed a willingness that there should be an operation for a tumor he did not consent to the excision of a cancer. He says that he told Dr. Housekeeper that if the formation in the breast was a cancer he objected to its removal. His own testimony shows that he assisted the physicians in preparing to perform the operation, and, though not in the room where it was performed, was near at hand. He says he supposed that the medical men were operating for a tumor, and that he would not have consented to an operation for a cancer. There is evidence from which a jury might infer that the patient knew that the formation in her breast was a cancer. When the doctors came to the house she had already prepared herself to undergo the operation. If she consented to the operation, the doctors were justified in performing it, if, after consultation, they deemed it necessary for the preservation and prolongation of the patient's life. Surely the law does not authorize the husband to say to his wife: "You shall die of the cancer; you cannot be cured, and a surgical operation, affording only temporary relief, will result in useless expense." The husband had no power to withhold from his wife the medical assistance which her case might require. Harris v. Lee, 1 P. Wms. 482; Mayhew v. Thayer, 8 Gray, 172. As was said by the supreme court of Michigan in the recent case of Carstens v. Hanselman, 61 Mich. 426, 28 N.W. 159: "It would be a cruel rule for her if she cannot, in his absence, at least, or in his presence, if he does not himself provide for her, make a binding agreement for any necessaries, whether articles to be purchased or professional help,...