State v. Housekeeper

2 L.R.A. 587, 16 A. 382, 70 Md. 162, 1889 Md. LEXIS 20

• Court: Court of Appeals of Maryland
• Decided: January 10, 1889
• Status: Published

Opinion

Yellott, J.,

delivered the opinion of the Court.

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 Art. 67, of the Md. 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 hy cutting off the entire right hreast. The operation was performed about the first 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 vs. Lee, 1 P. Wms., 482; Mayhew vs. Thayer, 8 Gray, 172.

As was said by the Supreme Court of Michigan in the recent case of Garsten vs. Hansel-man, 61 Mich., 426: *'cIt 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, without becoming a public charge. It is not to be expected that physicians and surgeons will always feel bound to render gratuitous treatment to injured persons, and when the occasion is pressing, it would-be unreasonable to delay until an absent husband is communicated with to learn whether he consents or refuses to assume her contracts. Time will not allow minute inquiries, and humanity will not prompt them. It seems to us that no sensible line can be drawn between contracts for food and clothing, and'contracts for medical aid.”

The consent of the wife, not that of the husband, was necessary. .The professional men whom she had called in and consulted, being possessed of skill and scientific knowledge, were the proper persons to determine what ought to be done. They could not, of course, compel her to submit to an operation, but if she voluntarily submitted to its performance, her consent will be presumed, unless she was the victim of a false and fradulent misrepresentation, which is a material fact to be established by proof. The Court below was therefore right in rejecting the first and third prayers of the plaintiffs, which place the burden of proof in regard to consent on the defendants. If the plaintiff alleges that there was no consent, he must establish his affirmation by proof. The party who allows a surgical operation to be performed is presumed to have employed the surgeon for that particular purpose. Gladwell vs. Steggall, 5 Bingh. N. C., 733.

It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. Best on Presump., 68; Jacksonville Street R. Co. vs. Chappell, 21 Fla., 175.

This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment. The burden of proof is on the plaintiff to show a want of proper knowledge and skill. Leighton vs. Sargent, 31 N. H., 119, (11 Foster;) Baird vs. Morford, 29 Iowa, 531.

The Court below committed no error in determining that it was incumbent on the plaintiff to prove affirmatively that the operation was performed without the consent of the patient, and also that her death was caused by unskillful and careless treatment of the physicians. Hor did the Court commit any error in granting the defendants’ second prayer, which enunciates the proposition that if death was caused by tubercular meningitis or other disease not produced by the operation, the defendants are not liable. The defendants’ fourth prayer is also correct, and was properly granted. In it the jury are told that even if the disease resulting in death was caused by the opeiv ation, the defendants are not liable, if they performed said operation wúth the patient’s consent in a careful and skillful manner, and under the belief that said operation was proper to be performed. In the defendants’third prayer tlie jury are told that the degree of care and skill required' is that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients, and that the burden of proof is on the- plaintiffs to establish the want of such; skill and care in the performance of the operation and attendance on the deceased while under treatment. There was no error in granting this instruction. It is proper to add, that there was no evidence in the cause to sustain the plaintiff’s case as stated in the first count of his declaration.

(Decided 10th January, 1889.)

Finding no error in any of the rulings of the Court below, its judgment must be affirmed.

Judgment affirmed.