Wright v. Clement

190 N.E. 11, 287 Mass. 175, 1934 Mass. LEXIS 1011

• Court: Massachusetts Supreme Judicial Court
• Decided: June 26, 1934
• Status: Published

Opinion

Lummus, J.

This is an action of tort against a physician. The first count alleges that in treating the plaintiff’s testatrix before, during and after childbirth he was guilty of “wanton and reckless acts” as well as “negligence,” which caused her death. The second count is for conscious suffering from the same wrong. No question of pleading is raised. There was not the slightest evidence of any “wanton and reckless acts,” and the only question argued relates to the negligence alleged.

There was evidence tending to show negligence in failing to discover that the plaintiff’s testatrix had scarlet fever until the disease was advanced beyond the point at which antitoxin might have been of service. There was evidence tending to show negligence in removing her from the maternity ward of a hospital to her mother’s tenement, where facilities for treatment and care were limited, rather than to a hospital for contagious diseases. She died from septicemia, the result of scarlet fever. The difficulty with the plaintiff’s case is that there is nothing to show any probability that she would have recovered or lived longer or suffered less, if due care had been used. Semerjian v. Stetson, 284 Mass. 510. De Filippo’s Case, 284 Mass. 531. Compare Bennett v. Fitzgerald, 284 Mass. 535, and Marangian v. Apelian, 286 Mass. 429. The direction of a verdict in favor of the defendant was right.

Judgment for the defendant.