Street v. Hodgson

• Decision Date: 28 June 1921
• Docket Number: 53.
• Citation: 115 A. 27,139 Md. 137
• Parties: STREET v. HODGSON.
• Court: Maryland Court of Appeals

115 A. 27

139 Md. 137

STREET v. HODGSON.

No. 53.

Court of Appeals of Maryland

June 28, 1921

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

"To be officially reported."

Action by John M. Street against Dr. Henry W. Hodgson. Death of plaintiff being suggested, his executor, John J. Street, was substituted. Judgment for defendant, and plaintiff appeals. Affirmed.

Defendant's granted prayers were as follows:

(3) The jury is instructed that if they find from the evidence that decedent Street had suffered with a skin disease known as eczema for several years, and that he had been treated by numerous physicians for said disease, which failed to yield permanently to such treatments, but got better and then worse at times, if they shall so find, and that thereafter on or about the 20th day of October, 1918, if they shall so find the said Street went to the office of the defendant and told him that he was suffering from eczema on his left leg, and showed him the said disease on his leg; and that the defendant then and there undertook to treat said leg and did treat the same by the X-ray process from an X-ray static machine, and that in said treatment the defendant employed proper apparatus, and the usual and ordinary methods, and in treating the same acted as a reasonably competent and skillful physician using ordinary care, then their verdict must be for the defendant, notwithstanding said Street's leg got no better, but got worse, so that, after treatment by several other physicians it continued to grow worse, until it became necessary to amputate said leg above the knee, and that during said time said Street suffered much pain and incurred much financial loss and expense, and finally died on the 24th day of September, 1920, at the University Hospital in Baltimore.

(4) The court instructs the jury that, even though the jury believe from the evidence that John M. Street received from an X-ray static machine an X-ray burn on his left leg during the treatment thereof for eczema by the defendant, Dr. Hodgson yet, if the jury further believe from the evidence that the defendant, Dr. Hodgson, had the skill and knowledge of a reasonably skillful and competent physician using reasonable care in the use of X-ray static machines in the treatment of conditions whereof he undertook to treat the leg of the said John M. Street as aforesaid, if the jury so find, and that in his treatment of the leg of the said John M. Street, if the jury so find, he used the care required of a reasonably skillful and competent physician, using reasonable care, and that the method of treatment was proper, and that the said injury to the leg of John M. Street whereof the plaintiff complains, if the jury find that it was so injured, was merely due to an error of judgment on the part of the defendant, if the jury so find, then the verdict must be for the defendant.

(7) The court instructs the jury that the degree of care and skill to be exercised by the defendant in his treatment of the plaintiff's decedent, if the jury so find, is not the highest degree of care and skill known to the medical profession, but that reasonable degree of care and skill which reasonably competent and skillful physicians ordinarily exercise in the treatment of their patients by X-ray from a static machine, and the burden of proof rests upon the plaintiff in this case to establish by preponderating evidence a want of such ordinary care and skill in the treatment of the said plaintiff's decedent.

(8) Even if the jury shall believe from the evidence that the defendant, with the X-ray from a static machine, treated the diseased leg of the plaintiff's decedent, and that in the course of said treatment the plaintiff's decedent's leg was burned, as testified to, that the jury cannot from that fact alone infer that the defendant failed to treat the plaintiff's decedent with ordinary care and skill in the premises.

(9) The court instructs the jury that a physician, in undertaking the treatment of a case by X-ray from a static machine, cannot be held to insure a good result or to benefit the patient; and he is only bound to treat the patient with that ordinary care and skill exercised by a reasonably competent and skillful physician treating disease by an X-ray static machine, and is not legally responsible for injury or damage following his treatment of the plaintiff's decedent, unless it appears by a preponderance of the evidence that such injury or damage to the plaintiff's decedent is directly due to the failure of the defendant to exercise and use such ordinary care and skill in said treatment.

(10) The court instructs the jury that, if the jury shall find from the evidence that the injury of which the plaintiff complains, if the jury shall so find, resulted from the act of the plaintiff, or from something for which the defendant is in no way responsible, then their verdict shall be for the defendant.

(11) The jury is instructed that, if they believe from the evidence that the plaintiff's decedent suffered from a disease known as chronic squamous eczema on his left leg, for several years before he was treated by the defendant with the X-ray from a static machine, as shown in the evidence, if the jury shall so find, and that said chronic eczema had been treated by several physicians by the use of ointments and other medicines and lotions, as shown by the testimony showed little or no improvement, if the jury shall so find, and that before he was treated by the defendant with the X-ray, and made little or no improvement, if they shall so find, he was treated by Dr. Cowherd with the X-ray produced by a transformer machine, if they shall so find, and that he subsequently developed a disease known as pemphigus, if they shall so find, and died of said disease of pemphigus, if they shall so find, and the jury cannot find from a preponderance of the evidence which of said diseases or which of said treatments caused the injury to the plaintiff's decedent complained of, and the minds of the jurors are in a state of equipoise upon the question as to which of said diseases or treatments resulted in the injury to the plaintiff's decedent, then their verdict must be for the defendant.

Argued before BOYD, C.J., and THOMAS, PATTISON, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Walter C. Capper, of Cumberland (J. Philip Roman, of Cumberland, on the brief), for appellant.

James U. Dennis, of Baltimore, and George A. Pearre, of Cumberland (D. Lindlay Sloan, of Cumberland, on the brief), for appellee.

ADKINS J.

John M. Street, the original plaintiff in this case, sued the defendant, Dr. Henry W. Hodgson, for alleged negligence by the defendant in the use of an X-ray machine in treating plaintiff's leg for eczema.

The narr., filed December 29, 1919, alleges: That the defendant on or about the 1st day of November, 1918, was a physician engaged in the general practice of medicine in the city of Cumberland, and as such physician held himself out to the public as an X-ray specialist in the curing of eczema and skin diseases by exposing the affected skin to the rays from said X-ray machine, and that on or about the day and year aforesaid, the plaintiff employed said defendant and placed himself as a patient in his hands to be treated and cured of said affection; that the defendant entered into and agreed upon said employment, and undertook to treat him for said disease, and did treat him for a period of several weeks, by the use of said X-ray machine without giving any relief to the plaintiff, and that during said treatment, and especially during the latter part of the same, on or about the early part of December, 1918, the defendant exposed the plaintiff's left leg to the said rays from said machine for an unusually...