Streett v. Hodgson

Adkins, J., delivered the opinion of the Oourt. John M. Streett, the original plaintiff in this case, sued the defendant Dr. Henry TV. Hodgson for alleged negligence by the defendant in the use of an X-Ray machine in treating plaintiff’s leg for eczema. The nar., filed December 29th, 1919, alleges: That the defendant, on or' about the first 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, and 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 ufiusually long period of time, and negligently, unskilfully and ignorantly exposed the plaintiff’s leg to the rays from said machine, and negligently, unskilfully and ignorantly failed and neglected to properly protect the plaintiff’s log from the rays of said X-ray, and negligently and carelessly used upon' the plaintiff’s leg an antiquated X-ray machine which had not 'the proper safety devices, and which he had ¹⁴⁵ negligently and carelessly permitted to be and become in a bad condition of repair, and that said defendant, by reason of all of said ignorance, negligence and carelessness in and about said treatment by the said X-ray machine, burnt and injured with tbe rays from said machine plaintiff’s leg from the knee to the ankle, and cooked and blistered tbe same, by reason of all which negligence, ignorance and carelessness on the part of said defendant the plaintiff has suffered ever since, and notv suffers great physical pain and anguish, and has been compelled to secure other medical treatment and to consult and engage several medical specialists, and to incur great expense, and to undergo serious and dangerous operations in the effort to save amputation of the leg, and may in the near future be compelled to have the same amputated, etc.; that said injuries, damages, pain and suffering are all due to the negligence and want of due care and caution on the part of the defendant, and are in no way due to negligence of want of due care and caution on the part of plaintiff.

Defendant pleaded the general issue plea. On October 11th, 1920, the death of plaintiff was suggested and the appellant, John J. Streett, executor, was substituted as plaintiff. The verdict being for the defendant, the plaintiff appealed. , It will not be necessary to refer at length to the testimony except in connection with the prayers, as the only exception in the case is to the granting of certain of defendant’s prayers. The plaintiff offered two prayers, one a damage prayer, which is not material on this appeal, and another, which the court granted.

The defendant offered fifteen prayers, of which the third, fourth, seventh, eighth, ninth, tenth and eleventh were granted. The reporter will set out all the granted prayers. Plaintiff excepted to the granting of the prayers of the defendant which were granted, but filed no special exceptions. The objection to tbe defendant’s third, fourth, seventh, eighth and ninth prayers, most strenuously urged, is that they ¹⁴⁶ ignore the theory of the appellant that the static machine-used by appellee was obsolete, and this objection is based on the fact that the question of the propriety of using that machine is not, by these prayers, submitted to the jury at all; and it is further contended that these prayers also fail to submit to the jury the question whether defendant was guilty of negligence in using the machine without the use of a radiometer or milliamperemeter.

We think the latter issue is fairly submitted by the third, fourth, seventh and ninth prayers. The third prayer required the jury to find, among other1 things, that the defendant employed proper apparatus, and the usual and ordinary methods; the fourth, that he used the care required of a reasonably skillful and competent physician, using reasonable care, and that the method of treatment was proper; the degree of care required by the seventh is, “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 practically the same requirement is contained in the ninth. As it is a question of the safety of the machine and not its efficiency, and as there is no testimony in the- case that it is not safe when properly used, but, on the contrary, all the experts testify that it is all right, so far as safety is concerned,, when used with proper safety devices, the appellee was. not required to submit to the jury any issue involving t-lie exercise of care and knowledge in the selection of a machine. The other objection urged to the third prayer is not substantial, so far as the evident meaning of the prayer is concerned.

As to the objection to the fourth prayer, that, there is no room in this case for a valid theory of error of judgment, we do not agree with appellant’s contention. The exercise of judgment was distinctly involved in the exposure of the leg to the X-rays after appellee discovered its condition following the next to the last treatment; and this was not the only oc ¹⁴⁷ casion where judgment had to he exercised. Janney v. Housekeeper 70 Md.