Schopen v. Baldwin

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action is brought by a physician to recover for professional services, and the complaint

There is but one substantial objection raised on this appeal. In the cross-examination of the plaintiff, he was asked whether the bones of the patient’s forearm still protruded. Objection being made to the question, the counsel for defendant stated that he would show that the plaintiff’s treatment of the arm was not proper. The court held that there was no defense of the kind pleaded, arid excluded the evidence. The question is therefore presented whether, under an answer putting in issue the value of the services of the physician, it is competent to prove unskillful treatment, as affecting such value. It seems at one time, in this state, to have been doubtful whether malpractice could be proved under the general issue. In Runyan v. Nichols, 11 Johns. 546 , Judge Van Hess first thought that the evidence was inadmissible under that plea, but on reflection doubted the correctness of his opinion, and the decision finally proceeded on the ground that notice should have been given. In Sill v. Rood, 15 Johns. 230 , the case of Runyan v. Nichols was distinguished. In Gleason v. Clark, 9 Cow. 57 , it was held that malpractice, if given in evidence to entirely defeat the plaintiff’s claim, was admissible under the general issue without notice; if merely to reduce the claim, then notice should be given. In Blair v. Bartlett, 75 N. Y. 150 , Judge Folger states the tenor of these authorities, without declaring the rule under the Code, as the case did not involve the question. In Chatfield v. Simonson, 92 N. Y. 209 , it was held that proof of misconduct of the plaintiff as attorney for the defendant was admissible under a general denial as a bar to the action. The result of these authorities is that, had the defendant denied any value to the plaintiff’s services, the evidence would have been clearly admissible. But the defendant admitted in his answer that the services were valuable. Does that concession necessarily bar any claim of improper treatment or malpractice ? It is settled law that a recovery by a physician for services bars an action by the patient for malpractice. Blair v. Bartlett, supra; Gates v. Preston, 41 N. Y. 113 ; Bellinger v. Craigue, 31 Barb. 534 . In these cases are to be found statements that the recovery to any extent is inconsistent with malpractice. It is said by Judge Folger in Blair v. Bartlett, in speaking of the effect of a recovery for services, as establishing their value:

“But, if of value, they could not have been useless; and, if of use, they could not have been harmful; and, if not harmful, there could not have been mala praxis in the performance of them."

If this is to be considered as asserting that any malpractice is inconsistent with the recovery .for any amount, it can hardly be a

A11 concur.