Neudeck v. Vestal

THE COURT.

On June 16, 1927, June A. Neudeck, a minor, fell and broke her right arm. The child was immediately taken to a hospital, and defendant, a duly licensed physician, was called to treat her. An X-ray photograph was made and the bone set, following which the arm was placed in a plaster cast. Defendant continued to treat the child until July 1, 1927, when he was discharged.

Two actions were filed against him, one by the minor, through her guardian, for damages caused by his alleged negligence in treating the arm, and the other by the child’s father to recover the expenses subsequently incurred for medical services which the alleged negligence made necessary. The actions were tried together by a jury, which returned a verdict for the defendant in each case, and appeals were taken by the plaintiffs from the judgments entered thereon. As grounds' therefor it is contended that the trial court at defendant’s request gave certain instructions which were prejudicially erroneous.

Two of the instructions complained of were as follows: “You are instructed that a physician or surgeon en

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titled to practice his profession, possessing the requisite qualifications and applying Ms skill and judgment with due care, in making a diagnosis, in prescriMng treatment or in determining upon an operation, where there is reasonable doubt as to the nature of the physical condition involved, or as to what should be done in accordance with recognized authority and good current practice, is not liable for damages consequent upon an honest mistake or error of judgment.”

“You are instructed that where a physician possesses and exercises the requisite degree of care and skill that is possessed and used by physicians practicing in the same or similar localities, he is not responsible for a mistake or error of judgment.”

These instructions state substantially the obligations of physicians and surgeons as held by the courts of this jurisdiction, and were properly given

(Hesler

v.

California Hospital Co.,