CHAPTER VIII.

DAMAGES.

§ 108. Matters in defense or mitigation.

It is the duty of every person to use reasonable care, diligence and prudence, not only to avoid injuries from others, but to avoid, as much as possible, damages or losses from the wrongs or torts of others.

Although a patient may have sustained injury from the malpractice of his physician or surgeon, if there be on the part of the patient a want of ordinary and proper diligence and care to avoid the consequences of such malpractice, he may be chargeable with contributory negligence, and thereby be prevented from recovering damages, or at least limited in his recovery to such damages as could not have been avoided by the exercise of ordinary and reasonable care and diligence, under all the circumstances of the case: 2 Field's Lawyers' Briefs, §§ 445, 446. See also Harrison v. Berkley, 1 Strob. (S. C.) 548 ;

Stover v. Bluehill, 51 Me. 439; Dorwin v. Potter, 5 Denio (N. Y.), 306; Walker v. Ellis, 1 Sneed (Tenn.), 518; Hamilton v. McPherson, 28 N. Y. 73; Bennett v. Lockwood, 20 Wend. (N. Y.) 223; Hassa v. Junger, 15 Wis. 598; McGrew v. Stone, 53 Pa. St. 436. A surgeon may generally be liable for malpractice in shortening a limb he is employed to set, still it may be otherwise if he is discharged before the proper time arrives for applying the proper treatment to prevent shortening: Rendall v. Brown, 74 Ill. 232.

§ 109. In case of contributory negligence.

A physician or surgeon is liable for injury caused his patient by the want of skill and diligence which an intelligent and respectable member of the profession would use under the same circumstances. But if the proximate cause of the injury was the neglect of the patient to use the remedies prescribed, or if he aggravated the case by his own misconduct, the physician or surgeon would not be liable for the injury caused by such misconduct on his part: Craig v. Chambers, 17 Ohio St. 253; McCandless v. McWha, 22 Pa.

St. 261; 25 Pa. St. 96; Hibbard v. Thompson, 109 Mass. 288. And if the patient contributes to his injury by failing to obey the reasonable instructions of his physician or surgeon, he cannot recover for such injury, although such physician or surgeon may have failed to use the skill and diligence imposed upon him by law : 4 Field's L. B., § 733; Geiselman v. Scott, 25 Ohio St. 86; McCandless v. McWha, 25 Pa. St. 95; Hibbard v. Thompson, 109 Mass. 286; Smith v. Smith, 9 Pick. (Mass.) 621. But where one has received a personal injury from the negligence of another, the damages of the former in an action against the latter will not be reduced by reason of his not having secured the most skillful medical aid, if he used reasonable and ordinary care: 32 Ia. 324; 7 Am. Rep. 200.

§ 110. Punishment for the crime no defense to civil action. It may be observed that a trial and punishment for criminal malpractice would be no bar to a civil action for damages arising therefrom, nor would it affect the right of the injured party to recover exemplary damages where, according to the authoritative decisions of the courts of the

states, such damages are allowable: Field on Dam., §§ 436-439; Childs v. Drake,2 Met. (Ky.) 146; Hendrickson v. Kingsbury, 21 Ia. 379; Garland v. Wholeham, 28 Ia. 185; Corwin v. Walton, 18 Mo. 71; Cole v. Tucker, 6 Tex. 266; Hadley v. Watson, 45 Vt. 289; Cook v. Ellis, 6 Hill (N. Y.), 466; Roberts v. Mason, 10 Ohio St. 277; Klopper v. Bromme, 28 Wis. 372.

It is not a defense to a suit brought against a physician or surgeon for malpractice that the defendant was practicing in violation of the statute, making it an offense to practice medicine or surgery without certain preliminary qualifications, unless, perhaps, where the patient or employer knew, when employing the physician, that he had not the proper qualifications: Musser v. Chase, 29 Ohio St. 577.

§ 111. The measure of damages.

The rule for the measure of damages, in case of injuries sustained by the malpractice of a physician or surgeon, would be the same as in case of injuries arising from negligence of common carriers, or from assault and battery. The usual elements of damages in such a case would be as follows:

1. Loss of time and labor arising from the injury sustained by the malpractice.

2. The reasonable expenses incurred for surgical, medical and other attendance in consequence thereof.

3. Diminished capacity to work at the trade or business of the injured party in consequence thereof.

4. Bodily pain and mental anguish in consequence thereof: Field on Dam., § 600.

This classification embraces only the elements of the direct pecuniary damages which may be sustained in such a case.

They are the direct and immediate injury arising from malpractice. But it has been held in cases where the principle would be the same that in estimating damages for personal injury, the jury may take into consideration the fact of permanent disability, and probable future disability and suffering; and, in the language of a distinguished legal author, "whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly dif