Show I 1 copyright secured history OF JOSEPH SMITH 1 manch nanch 1843 friday 10 clear and cold day I 1 opened court at 10 am emmons and nd skinner counsel for plaintiff and marr blarr and rigdon counsel for defendant parties derex present resent and many spec spectators gators and I 1 delivered the following DECISION DECISTO mayors court city of nauvoo march I 1 2nd aad and 3rd ard 1813 18 13 S charles IL dana vs in assumpsit williamb brink this is an ar action of assumpsit commenced by summons and brought by tho plaintiff to recover damages ashe as he avers in his bill of particulars ti tic ulars sustained by the plaintiff by reason of the defendants failing to perform his undertakings as physician in a usual and skilful manner which he had undertaken by his employment and his engagement in attending as such physician the wife of the plaintiff in the city of nauvoo in the year 1842 to do also for damage sustain sustained d from the tile malfeasance ce and misfeasance ol 01 or the defendant in the treatment of plaintiffs wife while employed as physician by the plaintiff to attend ilia his said wite wife at nauvoo in contrary to the defendants undertaking as such physician b by reason of which bad acts and treatment of tle the defendant to plaintiffs said wife in inthe the premises r e m plaintiffs plaintiff s said wife is greatly injured ju r e di in sesler lesler her health and put to lasting pain and suffering and the plaintiff has hao thereby there y lost the i services ser vices company and comfort of his said wife since said bad treatment of defendant and been put to pain min trouble expense and anci anxiety not only from tha the present loss of his said wires cifes health lie lle alth aith but also from well grounded apprehensions of the fatal consequences of the injury done to his said wife by said defendant in the premises to his bis damage after the witnesses were sworn for the plaintiff the defendants counsel raised an objection to them on account that one school of physicians is arrayed against the other plaintiffs counsel replied that the physicians vere were only to give their evidence as s an op opinion tinion of skill ac for which he read digest p 10 1017 1047 17 Defend defendants ints counsel resumed but the tho court decided that it could not determine the incompetency of the witnesses till there was something before the court to show the fact therefore the court heard the witnesses mrs miles milea was wag at plaintiffs hocee house on saturday the of october 1842 18 when dr brink the defendant was called to administer to plaintiffs wite wife in a case cass of fever or diarrhea this was about noon plaintiffs wife told witness wit gness she did not expect to be confined then nor nor for ten days she had been injured by a fright witness went home andaas and was wag recalled about 11 at night plaintiff plaintiffs B wife had llad some come pains then thea witness thought they were labor pains defendant said be ile had given her that her child was pitched on one ede had given her smut rye ergot said the a amnion fluids were discharged witness thought hurt mra mrs dana in his operations he used force and violence she screeched M ana begged him to desist mrs dana said she did not e expect act 1 to be confined and did not L know now when s she e should be nor did she ehe know that the sheild amnion fluid had discharged witness saw the doctor introduce his band per v vagina agina patient manifested great pain and arid urged him to quit sald said he was hurrying her too rast jast witness proposed having somebody else has heard mrs mra dana gay say that defend defendants antrIs treatment to her was the cause of her sickness since bince that time mrs duel was wag present when the plaintiffs wife waa confined on the cf october 1842 was called on the he at 11 at hight night t defendant called upon on witness to borrow v a syringe sald said that thIt Tirs mrs dana was bick eick and that he lie thought her child had been dead two or three days when witness witness came mrs dana was in considerable distress defendant thought alic was ready for parturition and would be delivered by three pains more defendant resorted to means witness against his bourse eo urse to let nature have time while mrs dana screamed do let me alenel you will kill me do let golly go but defendant 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 ba tepper e turned before it could be born b brn orn that it was necessary to keep up irritation in order to create pains and hasten delivery witness proposed to have someone some one else called defendant opposed it but finally consented witness saw patient next day at 11 and she seemed free from pain mrs sessions attended mrs dana plaintiffs wife as all an ac coucher last october defendant r was there when witness arrived shook shook her hand and held it fast some time said he had sent for tor witness 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 witness because her hand was small and she could turn it witness asked defendant what he had done he replied nothing what have you given her he ile anaw answered cred nothing but a little and cayenne pepper however he admitted he had g given giren iv en oil one pepper dose 0 of f ergot of eleven grains defendant had ergot of witness the previous week witness proceeded to examine mrs dana plaintiffs lifey wife and by touching the childs ear car discovered it was a natural presentation or and by examination of the fontanella found the child was alive by pulsation and that inse instead adof of the amnion fluids raving having escaped they had not gathered witness also discovered three ruptures on the linew OB 06 and fresh blood the patients under garments and the bed clothes as though bloody fingers in g ers had been wiped thereon the color of the spots was different irom from hemorE hemorrhage hemor age rage at parturition turi tion on the evening evening of the 24 1 of october witness delivered mrs mrs dana of a living chifa child which according to its small size was rather a premature girth birth when witness visited patient the day previous there were DO no regular pains mrs dana told vv witness atness since her tier confinement that defendants treatment to her had aused caused a weakness in her back that she could cou not hold her tier urine and had been troubled with the piles also all of which she believed re resulted gilted from the injuries she received from defendant and witness believed it was so too has practised practiced obstetrics 39 30 years and has haa never seen a physician conduct towards a woman as defendant did to mrs dana according lne ine to appearances appearance a mrs irs dana plaintiffs wife was objected to as a witness for her husband has band by defendants coursel counsel on the ground that the int interest internist erist of the husband and wife are arc both conein one in law see phillips on evidence court overruled the objection in cases casas of evident necessity nece when the fact la is presumed to be particularly in the cifes knowledge 0 th there ere ie is an exception to the tile gia gla general rule thus a wife may be a witness on the prosecution of her husband for an committed a against rist fist her tier person I 1 blackstone n ta culls nisi prius e s c there are arc several exceptions to the general rule upon this subject where from the nature of the injury the information to be expected is is peculiarly within the knowledge of the husband or wife and where to tb exclude auch such evidence would occasion insecurity to that relation of society which is is the object of the tile rule to protect phili phillips s on evidence other authorities might te shown but the foregoing are to the point to warrant the court in in saying that husband tand or wife can be a competent compe witness where the injury injury has been committed eted upon the person of either and herc where here the te testimony stimon to 0 be de given is presumed to be belef beneficial acial for public anu c security and of general importance to guard individuals against agalena imposition mrs dana testified that defendant dr brink was called on tho tile morning of the of october laet last to administer to witness in in cass case of a fever but did not rot arrive till noon coon lie ile then mixed some medicine in which was pepper which gave her great pain got a syringe and administered two injections bim him himself sett self to witness in which she t thinks inks there ws was pepper they were very hot and gave her great pain ain aln seemed almost in a flame actu actually tilly gave her the tho cramp defendant stayed all the afternoon during the night he insisted the patients time had come a and nd that she should be delivered ile he continued to give doses from time to time lime which gave her great pain every time she took tool them patient told defendant it was not her time under four weeks told him her labor pains were not on her defendant told her the child was dead and every thing thin wrong lie ile interfered in in such a way 8 to cause great pain pair a r said an I 1 inflammation had taken place in in her ber ier ger lr bowels eis cis which had caused the death of the child and used force which gave greater pain than she ehe had ever endured before patient begged of defendant to desist and let fier fler 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 mrs sessions was discharged from no other caise cause car cai sc than the violence which the doctor used in in his operations afterpe let her alone she ehe was easier patient had DO no lab iab labor 0 o r pains i no till monday had six chil chii h rr dren n and her reckoning had always been regular never endured such suffering before since then has been troubled with weakness wea kness knees a difficulty of ret retaining anin azin her unno bruse was never troubled so before has not been able to do anything since her confinement has not been free from pain defendant used an unusual unusual means in his operations he placed his head A on the patients abdomen and exerted his strength otherwise which caused the most severe pain drs bennett weld weid foster foster Voster and higbee t from hearing the testimony of previous witnesses say that defendants treatment to mrs dana 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 or physicians from a close and rigid cross examination of all the witnesses save mrs donawho dana who was not cross examined nothing was elicited to vary the main points of the evidence that dr brink the defendant was called to administer to mrs dana 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 ivas dead without justifiable evidence and practised practiced violence upon supposition to bring on a speedy delivery thus en endangering angering the he health kith zith alth and constitution if not the life of the patient I 1 that he practiced practised a fraud upon a sick woman declaring things wrong that were right that he pronounced the amnion fluids discharged before they were gathered fathered that he gave hot injections himself which aside from the over heat which caused gleat pain was beneath the dignity of a gentleman that he gave ergot and mixtures which in connection with the tha force and violence which he used leaving 1 out the dangerous idea of using such poisonous ous potions even ia in extreme cases produced great pain that he introduced his hand per vagina without any necessity and by so doing made three ruptures in the finex 03 03 thereby bendan endangering ering life that al ail all his ef korts seemed to have been directed both b by kirth medici medicine le Ae and force to bring 0 on a premature hirth birth even at the risk cf of tampering with life and that the chok whole treatment has resulted in weakness and other impedimenta impediments to health and comfort the e only witness v examined on tho tha part of the defence was dr ar bostwick said he had practiced practised medicine twenty fow tow years and had attended as ac about 2 cases if the testimony against defenda defendant nt was true he had done an injury gave some explanations and illustrations ti 0 us of obstetrics les ies and defined the use and na nature ture of ergot h had a squad found some cases without labor pains but said nothing that tended tende d to invalidate the tile testimony of the witnesses who wiio attended mrs dins dinc or to counteract the opinion opinions of the physicians who had previously been examined the ile defendant filed an account with leave of plaintiffs counsel for services rendered plaintiffs wife on the 29 nd and of october er 1842 1840 of 1000 the court refuses to allow this account as a set off for this reason tha tIthe law implies an undertaking on tile the part of 0 apothecaries apotos and surgeons that they will use a r c agree of cire and skill ia in the treatment of the pa tie tle riia tiia this is the duty of the th medical practitioner tit ioner and he is responsible to his patient for a breach of it as for a tort although the patient was not nol the party who retained or was to him and for gross grobs carelessness or an action lies although no reward was to be given and if the patient ia Is rather injured than benefited in his health in consequence of any gross If ulness ness or carelessness on the part of the medical attendant an action for fees cannot be maintained chitty on contract p 8 3 east charles ivins ivies called as witness for the defendant fen dant was rejected for the legal reason that this thib taisia is an action of oz skill not general character that the character of the parties to a civil suit affords in general such a weak and vai val vague tnie inie infer nee as to tho tile truth of the poin points to in issue bet between reen veen them that it is 13 not usual alto aito to admit evidence e of this description phillipa phillips on Dvid evidence ence the defendant has failed to use his privilege c and rebut the plaintiffs testimony mony by other credible witnesses if he had any or to impeach a single witness of the plaintiffs the foregoing summary of facts relating to the case before the court is deemed sufficiently full without bringing in in every minutia ni j minu nuts tim in the recital and cross examination of witnesses with their technicalities objections and exceptions which while they defill enlighten liten ilten one point too often darken another 11 the e law knows no person till he conics within its purview and p injuries i j urles uries affecting health are arc among tile tiie the most mast important cases that call for redress such buch as the neglect or manil manri management gement of physicians physician ss surgeons sur geona or apothecaries for it has been solemnly resolved that mala praxis is a great misdemeanor and of mience fience at common law 2 blackstone 1222 the law daiv implies a contract on the part of a medical man as well as those of other professions to discharge their duty in a ski lul fill and attentive manner and the law will act grant ant redress to the party injured by the their ar i ne neg act 0 ignorance by an action oa on tho tha case as for a tortuous misconduct 1 sanders n 2 blackstone ri 11 7 independent of usage or practice tice poisonous potions should not be administered to f females in any case cass whatever the law for such of fences declares that to kill a child in autero is now no jio murder but a great misprison misprision mis |