Smith v. Makaroff

WARNE, J. pro tem.* Plaintiff brought this action against the defendant, Dr. William Makaroff, to recover damages for alleged malpractice. Plaintiff alleges in his complaint that by reason of negligent examination, diagnosis and treatment, defendant failed to discover that plaintiff was suffering from active tuberculosis, and that due to such negligence appellant failed to get, and was deprived of, timely treatment for said condition, and as the proximate result thereof, the disease was aggravated, the period of the treat[656]ment and cure was extended and the resultant permanent disability was increased.

Appellant had been a miner by occupation for some years. He had been employed as such commencing September, 1952, by the Sonoma Quicksilver Mines, Inc., which operated an underground quicksilver mine near Guerneville in Sonoma County. In October, 1952, appellant submitted himself to an X-ray examination of his chest by the Sonoma County Tuberculosis and Health Association. This X-ray showed no evidence of active tuberculosis on the date of examination.

Dr. Makaroff was a physician and surgeon in general practice at Guerneville. Commencing in 1942 or 1943 it was the custom of the Sonoma Quicksilver Mines, Inc., on hiring a miner, to send him to Dr. Makaroff for a chest X-ray and limited examination, the purpose being to have a record available for the protection of the mining company in the event disputes subsequently arose concerning the physical condition of the miner at the time he began working for the company. Pursuant to this custom, the company sent plaintiff to Dr. Makaroff on March 7, 1953. Dr. Makaroff did not examine plaintiff, but a chest X-ray was taken by the office nurse. Plaintiff testified that a few days later the mine foreman orally reported to him that the X-ray was negative. The medical experts agreed that this X-ray did not show any indication that plaintiff had tuberculosis at that time.

Plaintiff testified that, beginning in January or February of 1953, he had developed a cough and had been feeling below par, and as time went on “began to lose weight, and ran a temperature” and had a “general run-down, tired feeling”; that these symptoms gradually increased, and although he continued in his employment as an underground miner, in July, 1953, he sought medical attention. Thus, on July 24, 1953, he again went to the defendant’s office. Plaintiff related his symptoms to the defendant, including those mentioned above and in addition told defendant that he had a pain in his chest. He said that respondent examined him but took no X-ray of his chest nor made any laboratory tests; and defendant told him that he had sinus trouble and bronchitis which caused a nasal drip to his throat and inflammation in his bronchial tubes.