Paul Funtash instituted suit in the Cuya-hoga Common Pleas against Otis F. Simonds, a physician and surgeon who attended him professionally at St. Lukes. Hospital, for damages by reason of malpractice in the treatment of his left eye which had been injured while in performance of his occupation as a mechanic.
Dr. Simonds, on the day of the accident, instructed the nurse in charge to use cold compresses on the injured eye. A few days later, two other physicains were called in and the original instructions, as to cold compresses, were changed to hot compresses. On June 26, 1923,. the patient, suffering from pain, was again visited by Dr.' Simonds, and on June 27th, an infection having set in, the eye was removed by a surgical operation performed by Dr. Simonds. The patient claimed he did not give his consent to have the eye removed.
The court directed a verdict in favor of Dr. Simonds, and error is prosecuted, it being contended that there was evidence sufficient, upon the question of malpractice to go to the jury.
Plaintiff seems to rest his claim upon the absence, from June 22nd to June 26th, of .Dr. Simonds, from his bed side at the hospital, without a showing that said absence was a departure from the ordinary rule and custom of physicians and surgeons in the treatment of cases of á similar nature. In other words, without any proof that such absence was malpractice, and that it resulted proximately in the infection of the eye, which resulted in the necessity of an operation in order to save the plaintiff further bodily injury and perhaps his life.
The presumption of law is in favor of the conclusion that the defendant exercised that care and skill in his professional treatment of the patient, as is usual among physicians and surgeons.
' The burden of proof is upon plaintiff to show wherein the treatment was not in accord with that of- the usual practice,- in such cases, by physicians and surgeons of skill and repute. This the plaintiff failed to do, depending only upon the alleged inference of absence from June 22nd to June 26th, notwithstanding the disclosures of the record, that two other physicians attended him, and that nurses followed instructions as to the applications of hot and cold compresses.
If the eye was removed without consent, the action is not one for malpractice, but one more in the nature of assault. It bears no relationship to want of the exercise of ordinary care and skill on part of a physician in the treatment of the patient’s case.
(Levine, PJ., and Vickery, J., concur.)