Hesler v. California Hospital Co.

SHAW, J.

The appeal is from the judgment. After the appeal was taken the plaintiff died and Effie Johnstone, as administratrix of his estate, has been substituted as plaintiff.

Briefly stated, the complaint alleges that both defendants were engaged in the practice of medicine; that in July, 1913, the Hospital Company agreed to- provide for the plaintiff all necessary medical and surgical treatment, the same to be given by some physician in its service, and all necessary medicines and hospital service during the period involved in this action; that defendant Dunn was one of the physicians employed by said company; that in November, 1914, plaintiff contracted a cold and needed medical treatment therefor; that the Hospital Company thereupon assigned Dr. Dunn to the ease and Dunn undertook to give plaintiff the necessary treatment for his condition; that Dunn failed to use ordinary diligence, care, and skill in treating plaintiff, and that by reason of such failure plaintiff’s sickness progressed unfavorably, he became unable to work, was confined to his room and continued to grow worse until he became afflicted with pulmonary tuberculosis, and that he was put to great expense in procuring subsequent treatment therefor, and otherwise damaged in the sum of $5,644.

There was a trial by jury which resulted in a verdict and judgment for two thousand five hundred dollars. The principal contention of the appellants in support of the appeal is that errors were committed in the court below, in giving, refusing, and modifying instructions to the jury. Error is also predicated upon certain rulings in the admission of evidence.

The court gave the following instructions:

“5. To sustain an action it is not necessary to establish gross culpability; mere evidence of want of proper or ordinary care or attention and advice in the discharge of duty by a physician is sufficient to take the ease to the jury.

[766]

“6. Civil malpractice may be either active or passive. It is active when a certain course of treatment is adopted and followed which is not sustained by authorities; it is passive when those things in treatment are omitted which should have been done in order to obtain a result approximating to perfectness. ...