State v. Housekeeper

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, ¹⁶⁹ 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 ¹⁷⁰ 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