John M. Streett, the original plaintiff in this case, sued the defendant Dr. Henry W. Hodgson for alleged negligence by the defendant in the use of an X-Ray machine in treating plaintiff's leg for eczema.
The nar., filed December 29th, 1919, alleges: That the defendant, on or about the first day of November, 1918, was a physician engaged in the general practice of medicine in the City of Cumberland, and as such physician held himself out to the public as an X-ray specialist in the curing of eczema and skin diseases by exposing the affected skin to the rays from said X-ray machine, and that on or about the day and year aforesaid the plaintiff employed said defendant and placed himself as a patient in his hands to be treated and cured of said affection, and that the defendant entered into and agreed upon said employment, and undertook to treat him for said disease, and did treat him for a period of several weeks by the use of said X-ray machine without giving any relief to the plaintiff, and that during said treatment, and especially during the latter part of the same, on or about the early part of December, 1918, the defendant exposed the plaintiff's left leg to the said rays from said machine for an unusually long period of time, and negligently, unskilfully and ignorantly exposed the plaintiff's leg to the rays from said machine, and negligently, unskilfully and ignorantly failed and neglected to properly protect the plaintiff's leg from the rays of said X-ray, and negligently and carelessly used upon the plaintiff's leg an antiquated X-ray machine which had not the proper safety devices, and which he had *Page 145 negligently and carelessly permitted to be and become in a bad condition of repair, and that said defendant, by reason of all of said ignorance, negligence and carelessness in and about said treatment by the said X-ray machine, burnt and injured with the rays from said machine plaintiff's leg from the knee to the ankle, and cooked and blistered the same, by reason of all which negligence, ignorance and carelessness on the part of said defendant the plaintiff has suffered ever since, and now suffers great physical pain and anguish, and has been compelled to secure other medical treatment and to consult and engage several medical specialists, and to incur great expense, and to undergo serious and dangerous operations in the effort to save amputation of the leg, and may in the near future be compelled to have the same amputated, etc.: that said injuries, damages, pain and suffering are all due to the negligence and want of due care and caution on the part of the defendant, and are in no way due to negligence or want of due care and caution on the part of plaintiff.
Defendant pleaded the general issue plea.
On October 11th, 1920, the death of plaintiff was suggested and the appellant, John J. Streett, executor, was substituted as plaintiff. The verdict being for the defendant, the plaintiff appealed.
It will not be necessary to refer at length to the testimony except in connection with the prayers, as the only exception in the case is to the granting of certain of defendant's prayers.
The plaintiff offered two prayers, one a damage prayer, which is not material on this appeal, and another, which the court granted. The defendant offered fifteen prayers, of which the third, fourth, seventh, eighth, ninth, tenth and eleventh were granted. The reporter will set out all the granted prayers.
Plaintiff excepted to the granting of the prayers of the defendant which were granted, but filed no special exceptions.
The objection to the defendant's third, fourth, seventh, eighth and ninth prayers, most strenuously urged, is that they *Page 146 ignore the theory of the appellant that the static machine used by appellee was obsolete, and this objection is based on the fact that the question of the propriety of using that machine is not, by these prayers, submitted to the jury at all; and it is further contended that these prayers also fail to submit to the jury the question whether defendant was guilty of negligence in using the machine without the use of a radiometer or milliamperemeter.
We think the latter issue is fairly submitted by the third, fourth, seventh and ninth prayers. The third prayer required the jury to find, among other things, that the defendant employed proper apparatus, and the usual and ordinary methods; the fourth, that he used the care required of a reasonably skillful and competent physician, using reasonable care, and that the method of treatment was proper; the degree of care required by the seventh is, "that reasonable degree of care and skill which reasonably competent and skillful physicians ordinarily exercise in the treatment of their patients by X-ray from a static machine"; and practically the same requirement is contained in the ninth.
As it is a question of the safety of the machine and not its efficiency, and as there is no testimony in the case that it is not safe when properly used, but, on the contrary, all the experts testify that it is all right, so far as safety is concerned, when used with proper safety devices, the appellee was not required to submit to the jury any issue involving the exercise of care and knowledge in the selection of a machine.
The other objection urged to the third prayer is not substantial, so far as the evident meaning of the prayer is concerned.
As to the objection to the fourth prayer, that there is no room in this case for a valid theory of error of judgment, we do not agree with appellant's contention. The exercise of judgment was distinctly involved in the exposure of the leg to the X-rays after appellee discovered its condition following the next to the last treatment; and this was not the only occasion *Page 147 where judgment had to be exercised. Janney v. Housekeeper,70 Md. 171; Staloch v. Holm, 100 Minn. 276 (9 L.R.A.N.S. 712);Pike v. Honsinger, 155 N.Y. 201; Gore v. Brockman,138 Mo. App. 231; McKee v. Allen, 94 Ill. App. 147; Mallen v.Boynton, 132 Mass. 443. Besides, there was no special exception to the prayer on the ground of want of evidence to support it.
Even if the objections urged by appellant to the tenth and eleventh prayers were tenable, they would not avail him, as no special exceptions were filed. But apart from this, we do not think the inaccuracy of language in the tenth prayer, referred to by appellant, could have confused the jury; and, as to the eleventh prayer, we find no substantial objection.
It is urged by appellant that appellee's eighth prayer not only fails to present appellant's contention that appellee was negligent in using the static machine without any of the safety devices mentioned, but distinctly instructed the jury that if appellee with rays from his static machine burned decedent's leg, the jury could not infer from that fact alone that he failed to treat decedent with ordinary care and skill.
As to the first part of this objection, it is sufficient to say that it was not necessary, in a prayer of this sort, to present the contention of the other side.
The second part of the objection seems to be based on the theory that, inasmuch as appellee admitted he used the machine without a milliamperemeter or radiometer and without protecting the leg, the jury was told by this prayer, virtually, that it could not infer negligence from the fact alone, if it should so find, that there was a burn, and that the burn was caused by X-ray from a static machine while being used without any of saiddevices or means of protection. If the prayer means that, it is bad, because that would be instructing the jury to disregard testimony offered by the appellant. But the prayer must be considered in the light of all the testimony and with an appreciation of the atmosphere of the case. There was a very marked effort on the part of appellant's *Page 148 counsel, both in preparing the narr. and in the course of the taking of testimony, to make it appear that the static machine is obsolete, inefficient and unsafe; but the testimony, even of their witnesses, failed to show that it is unsafe. According to their testimony it is all right when used with a meter, but one or more of them said it was not safe without a meter and that the leg should have been protected. On the other hand, appellee's experts say that neither of the meters referred to is necessary to make it safe, or, indeed, is of any use, because there is not enough current from the machine to register on the milliamperemeter or to indicate its presence on the radiometer. This, according to their testimony, was demonstrated by them with the very machine in controversy. They further testified that, with this machine, no protection of the leg was necessary. Now it is quite conceivable that the jury might have reached the conclusion that these safety devices and the protection of the leg were unnecessary, and at the same time gotten the idea that appellee ought to have a more up to date machine, and that in some way, not apparent from the evidence, negligence might be attributable to his supposed lack of progressiveness. The prayer, so far as it refers to the static machine, meets such a situation, and, in this view, does not mean what it would have meant if it had contained the italicized words used above. We think the prayer in effect instructed the jury that there was no evidence that the static machine was unsafe for use in the treatment of disease, and that it could not infer negligence from the fact alone that defendant used said machine and that decedent's leg was burned in the course of the treatment. It left the jury entirely free to say whether, in its opinion, it was negligence to use the static machine, as defendant used it,without a meter and without protecting the leg; and whether the burn, assuming there was a burn, was due to the failure to use a meter and protection for the leg.
It remains to consider whether the jury was properly instructed that it could not infer negligence from the fact of *Page 149 the burn alone; or whether the maxim, res ipsa loquitur, applies to such an occurrence.
The precise question has not been decided by this Court, and in the few cases elsewhere in which it appears to have been decided, the decisions are not harmonious. Jones v. Tri-State Telephone Telegraph Co., 118 Minn. 217; (40 L.R.A., N.S., 485), cited by appellant, is not in point because the court there based its decision on the doctrine of respondeat superior, holding that the relation of physician and patient did not exist in that case. But in Holt v. Ten Broeck, 134 Minn. 458, and in Shockley v. Tucker, 127 Iowa 456, the maxium, res ipsa loquitur, was applied where such relation did exist. The contrary view was held in Gore v. Brookman, 138 Mo. App. 231, and in Sweeney v.Erving, 35 App.D.C. 57 (43 L.R.A., N.S., 734).
In the last mentioned case on appeal, 228 U.S. 233, the Supreme Court reserved the question, affirming the District Court of Appeals on other grounds. The reasoning of the courts which hold that the maxim does not apply in such cases seems more in consonance with the principles governing the relations generally between physicians and patients as announced by this Court in numerous cases. See State, use of Janney, v. Housekeeper,70 Md. 171; Dashiell v. Griffith, 84 Md. 380; Miller v.Leib, 109 Md. 414. At any rate, in the absence of evidence from which, without speculating, the jury could draw a reasonable inference from the mere happening of such an accident, it should not be permitted to infer negligence from the occurrence alone.
Finding no error in the ruling on the prayers the judgment will be affirmed.
Judgment affirmed, with costs to appellee. *Page 150