Trial Report, between 4 and 22 March 1843 [Dana v. Brink]

  • Source Note
  • Historical Introduction

Document Transcript

DECISION.
,) In .
vs)
,)
Mayor’s Court, City of ,
March the 2nd & 3rd, 1843.
This is an action of commenced by summons and brought by the to recover damages, as he avers in his , sustained by the by reason of the s failing to perform his undertakings, as physician, in an usual and skilful manner, which he had undertaken by his employment and his engagement in attending as such physician the of the in the city of in the year 1842, to do
$99,00.
Also for damage ssustained from the malfeasance and misfeasance of the in the treatment of ’s while employed as physician by the to attend his said at in 1842; contrary to the s undertaking as such physician, by reason of which bad acts and treatment of the to ’s said in the premises, ’s said is greatly injured in her health and put to lasting pain and suffering; and the has thereby lost the services, company and comfort of his said , since said bad treatment of ; and been put to pain, trouble, expense and anxiety not only from the present loss of his said ’s health, but also from well grounded apprehensions of the fatal consequences of the injury done to his said , by said in the premises, to his damage
$99,00.
After the witnesses were sworn for the , the s counsel raised an objection to them, on account, that one school of physicians is arrayed against the other. ’s counsel replied that the physicians were only to give their evidence as an opinion of skill &c. for which he read Harrison’s Digest p 1047. ’s counsel resumed, but the court decided that it could not determine the incompetency of the witnesses till there was something before the court to shew the fact; therefore the court heard the witnesses.
— was at ’s house, on Saturday the 22nd of October, 1842, when , the defendant, was called to administer to ’s , in a case of fever or diarrhea; this was about noon; ’s told she did not expect to be confined then, nor for ten days, she had been injured by a fright; went home, and was recalled about 11 o’clock at night; ’s had some pains then, thought they were labor pains; said he had given her medicine,— that her child was pitched one side— had given her Smut Rye, (Ergot) said the amnion fluids were discharged: thought the hurt in his operations; he used force and violence, she screeched, and begged him to desist. said she did not expect to be confined, nor did not know when she should be, nor did she know that the amnion fluids had discharged. saw the introduce his hand, per vagina; patient manifested great pain, and urged him to quit, said he was hurrying her too fast, proposed having somebody else; has heard say that s’ treatment to her was the cause of her sickness since that time.
Mrs. Duel [Mary Deuel]— was present when ’s was confined on the 24th of October, 1842; was called on the 22nd at 11 o’clock at night. called upon witness to borrow a syringe, said was sick, and that he thought her child had been dead two or three days: when witness came, was in considerable distress; thought she was ready for parturition, and would be delivered by three pains more. resorted to unusual means. Witness remonstrated against his course, to let nature have time; while screamed, do let me alone! you will kill me! do let go! but was then plying his hand, and said he could not, for something would go back: had given ergot and pepper, said the child was wrong and must be turned before it could be born; that it was necessary to keep up irritation in order to create pains and hasten delivery. Witness proposed to have some one else called. opposed it, but finally consented. Witness saw patient next day at 11 o’clock, and she seemed free from pain.
—attended , ’s wife, as an accoucheur, last October; was there when arrived, shook her hand and held it fast sometime; said he had sent for because he had a very bad case; the child was wrong and dead; that the membrane was broken, and the amnion fluids escaped, and the child turned; had sent for because her hand was small, and she could turn it. asked what he had done; he replied nothing. What have you given her? he answered, nothing but a little nervine and cayenne pepper: however he admitted he had given one dose of ergot, of eleven grains; had ergot of the previous week. proceeded to examine , ’s wife, and by touching the child’s ear, discovered it was a natural presentation; and by examination of the fontanella found the child was alive by [p. [2]] pulsation; and that instead of the amnion fluids having escaped, they had not gathered. also discovered three ruptures on the tincae Os; and fresh blood upon the patients under garments, and the bed clothes, as though bloody fingers had been wiped thereon. The color of the spots was different from hemorrage at parturition. On the evening of the 24th of October, delivered of a living child, which, according to its small size was rather a premature birth. When visited the day previous, there were no regular pains. , told , since her confinement, that ’s treatment to her had caused a weakness in her back, that she could not hold her urine, and had been troubled with the piles, also, all of which she believed resulted from the injuries she received from ; and believed it was so too; has practiced obstetrics 30 years, and has never seen a physician conduct towards a woman as did to according to appearances.
, ’s wife, was objected to as a witness for her , by ’s counsel, on the ground that interest of the husband and wife are both one in law, Phillip’s Evidence 159.
Court overruled the objection. “In cases of evident necessity, when the fact is presumed to be particularly in the wife’s knowledge, there is an exception to the general rule: Thus, a wife may be a witness on the prosecution of her husband for an offence committed against her person,” I Blackstone 444, n. Bull’s Nisi Prius, S. C. 287. “There are several exceptions to the general rule upon this subject, where from the nature of the injury, the information to be expected is peculiarly within the knowledge of the husband or wife; and where, to exclude such evidence, would occasion insecurity to that relation of society, which is the object of the rule to protect,[”] Phillip’s Evidence 169. Other authorities might be shown, but the foregoing are sufficiently to the point to warrant the court in saying that husband or wife can be a competent witness, where the injury has been committed upon the person of either, and where the testimony to be given is presumed to be beneficial for public security, and of general importance to guard individuals against imposition.
— testified that defendant, , was called on the morning of the 22d of October last, to administer to witness in case of a fever, but did not arrive till noon. He then mixed some medicine, in which was pepper, which gave her great pain. Got a syringe, and administered two injections himself, to , in which she thinks there was pepper, they were very hot, and gave her great pain, seemed almost in a flame; actually gave her the cramp. stayed all the afternoon: during the night he insisted the s time had come, and that she should be delivered. He continued to give doses from time to time, which gave her great pain every time she took them. told it was not her time under four weeks, told him her labor pains were not on her. told her the child was dead and every thing wrong. He interfered in such a way as to cause great pain; said an inflamation had taken place in her bowels, which had caused the death of the child; and used force which gave greater pain than she had ever endured before; begged of to desist, and let her alone, saying, there was nothing unnatural before taking his medicine, and that she believed the child was right. The blood mentioned by the former witness, , was discharged from no other cause, than the violence which the used in his operations. After he let her alone she was easier. had no labor pains till Monday 24th. Had had six children, and her reckoning had always been regular. Never endured such suffering before; since then has been troubled with weakness, a difficulty of retaining her urine, was never troubled so before; has not been able to do anything since her confinement; has not been free from pain. used an unusual means in his operations, he placed his head on the s abdomen, and exerted his strength otherwise which caused the most severe pain.
Doctors, , , and , from hearing the testimony of previous witnesses, say that ’s treatment to was unusual and uncalled for, and had they operated in like manner it would be unjustifiable, and that it was contrary to the general practice of physicians.
From a close and rigid cross examination of all the witnesses, (save , who was not cross examined,) nothing was elicited to vary the main points of the evidence,—
That, , the defendant, was called to admininister to , in a case of fever or diarrhea, and not for parturition:
That his doses of ergot, or something else, to hasten delivery, were not expected but was an imposition; as he was informed that her time had not come:
That he declared the child was dead without justifiable evidence, and practiced violence upon supposition, to bring on a speedy delivery; thus endangering the health and constitution, if not the life of the :
That he practiced a fraud upon a sick woman, declaring things wrong that were right:
That he pronounced the amnion fluids discharged, before they had gathered:
That he gave hot injections, himself, which, (aside from the over-heat, which caused great pain.) was beneath the dignity of a gentleman:
That he gave ergot and mixtures, which in connection with the force and violence which he used, (leaving out the dangerous idea of using such poisonous potions, even “in extreme cases,”) produced great pain:
That he introduced his hand, per vagina, without any necessity therefor, and by so doing made three ruptures in the tincae Os, thereby endangering life:
That all his efforts seemed to have been directed, both by medicine and force to bring on a premature birth, even at the risk of tampering with life:
And, that the whole treatment has resulted in weakness, and other impediments to health and comfort.
The only witness examined on the part of the defence, was
Dr. [George R.] Bostwick,— said he had practiced medicine twenty-four years, and had attended as accoucheur about 2,300 cases. If the testimony against was true, he had done an injury. Gave some explanations and illustrations of obstetrics, and defined the use and nature of ergot; had found some cases without labor pains, but said nothing that tended to invalidate the testimony of the witnesses, who attended ; or to counteract the opinions of the physicians who had previously been examined.
The filed an account, (with leave of ’s counsel,) for services rendered ’s on the 22d and 23d of October, 1842, of $10,00.
The court refuses to allow this account as a set off, for this reason, that “the law implies an undertaking on the part of apothecaries and surgeons, that they will use a reasonable degree of care and skill in the treatment of the patients. This is the duty of the medical practitioner, and he is responsible to his patient for a breach of it, as for a tort, although the patient was not the party who retained, or was to remunerate him. And for gross carelessness or unskilfulness an action lies, although no reward was to be given. And if the patient is rather injured than benefited in his health, in consequence of any gross unskilfulness or carelessness, on the part of his medical attendant, an action for fees cannot be maintained.” Chitty on Contracts p. 438. 8 East. 348.
,— called as witness for the , was rejected for the legal reason that this is an action of skill, not general character; that “the character of the parties to a civil suit, affords, in general, such a weak and vague inference as to the truth of the points in issue between them, that it is not usual to admit evidence of this description.” Phillips on Evidence, 488.
The has failed to use his privilege, and rebut the ’s testimony by other credible witnesses, if he had any; or to impeach a single witness of the ’s.
The foregoing summary of facts, relating to the case before the court, is deemed sufficiently full, without bringing in every minutia, in the recital and cross examination of witnesses, with their technicalities, objections, and exceptions, which while they enlighten one point, too often darken another.
The law knows no person till he comes within its purview; and injuries, affecting health, are among the most important cases that call for redress; such “as the neglect, or unskilful management of physicians, surgeons, or apothecaries. For it has been solemnly resolved that mala praxis, is a great misdemeanor and offence at common law,” 3 Blackstone 122. The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner, and the law will grant redress to the party injured by their neglect, or ignorance, by an action on the case, as for a tortuous misconduct,— 1 Saund. 312, n. (2 Blackstone, 122 n. 7).
Independent of usage or practice, poisonous potions should not be administered to females in any case whatever. The law for such offences declares, that “To kill a child in utero is now no murder, but a great misprison; but if the child is born alive, and dieth by reason of the potion, or bruises it received in utero, it seems, by the better opinion, to be murder in such as administered or gave them.[”] II Blackstone 198, and note 3. Hawkins Pleas of the Crown 80.
The highest authority upon injuries to women is the law of God: that says, “If men strive and hurt a woman with child so that her fruit depart, and yet no mischief follow, he shall be surely punished according as the woman’s husband will lay upon him; and he shall pay as the judges determine.[”] Exodus 21; 22.
The law acts by rules and facts, and when clothed in its dignity knows no distinction; though modesty may suffer violence in darkness, yet upon testimony, justice is bound to bring the offender to light, whether his footsteps are traced among the tombs of the illustrious dead, or his head is pointed out among the homes of the honorable living.
The court decides that the recover from the , the sum of his bill, ninety-nine dollars and costs. [p. [3]]