63 damages notwithstanding his own negligence, where the negligence of the physician was the sole cause of the injury, even though the disease or injury was aggravated by the improper treatment of those in charge of the patient.64 If the negligence of the patient can be separated from that of the physician, the patient may recover for such separate injury as proceeded solely from the distinct negligence of the physician;65 though in Indiana, and perhaps some of the other states, the rule is that a patient cannot recover from his physician for an injury to which he contributed in any degree, either by his own negligence or by disregarding directions of the physician.66 Permitting treatment by a physician after being informed or becoming fully aware of his want of skill is contributory negligence, which will bar an action for resulting injuries;67 and demanding particular action without asking advice as to its propriety exonerates the physician from liability for injurious results, when the impropriety of such action was not apparent." But negligence cannot be properly imputed to the father of a sick child because he employed a clairvoyant physician to treat him, with full knowledge of his methods of diagnosis and prescription.69 68 509. Effect of failure to conform to directions. It is the duty of the patient to conform to necessary prescriptions, directions, and treatment of his physician if they are such as a physician or surgeon of Schoonover v. Holden (Iowa) 87 N. W. 737. And a person with a broken limb is not required to submit to have it rebroken, in order to relieve her physician from liability for lack of ordinary care and skill in setting it, where the operation would be attended with great pain, and her age and physical condition were such that it might prove fatal. Morris v. Despain, 104 Ill. App. 452. "Hibbard v. Thompson, 109 Mass. 289; Sanderson v. Holland, 39 Mo. App. 233; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107. Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338. permit a recovery for damages for the negligence of the physician, will not be made; since it cannot be known what would have been the result of the physician's treatment had he remained at the hospital. Richards v. Willard, 176 Pa. 181, 35 Atl. 114. Jones v. Angell, 95 Ind. 376; Young v. Mason, 8 Ind. App. 264, 35 N. E. 521. "Lorenz v. Jackson, 88 Hun, 200, 34 N. Y. Supp. 652. Hancke v. Hooper, 7 Car. & P. 81. While it is the duty of surgeon when called upon to perform some surgical operation to advise against it if in his opinion it is unnecessary or will result injuriously, if he gives such advice, and the patient still insists upon the performance of the operation, and the surgeon performs it in compliance with his demands, he cannot be held responsible to the patient in damages. Gramm v. Boener, 56 Ind. 497. Nelson v. Harrington, 72 Wis. 591. 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W. 228. ordinary care would adopt and sanction; and if he will not, or under pressure of pain cannot do so, the physician is not responsible for resulting injury.70 And this is the rule where his disobedience proximately contributed to the injury, though it appears that the physician's negligence or want of skill also contributed to it."1 And the rule is the same where the negligence or refusal to obey orders was that of persons in charge of the patient. 72 But before a physician can shift responsibility from himself to the patient on the ground that the latter did not submit to the course recommended, it must be shown that the prescriptions were proper and adapted to the end in view; and it is incumbent upon the surgeon to satisfy the jury on this point.73 While a patient has a right to rely upon the instructions and directions of his physician, and incurs no liability by so doing," he is not required to submit blindly to professional advice: he is entitled and bound to exercise reasonable judgment; and if his conduct was that of a reasonably prudent man, he cannot be charged with negligence for refusing to submit.75 Failure to obey instructions, however, which contributes to the aggravation of the patient's ailment, only tends to mitigate damages; it does not relieve the physician from the consequences of professional neglect or unskilful treatment.76 70McCandless v. McWha, 22 Pa. 261; Haire v. Reese, 7 Phila. 138; Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 608; Haering v. Spicer, 92 Ill. App. 449; Littlejohn v. Arbogast, 95 Ill. App. 605; Jones v. Angell, 95 Ind. 376; Swanson v. French, 92 Iowa, 695, 61 N. W. 407; Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894; Dashiell v. Griffith, 84 Md. 365, 35 Atl. 1094; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; Geiselman v. Scott, 25 Ohio St. 86; Tish v. Welker, 5 Ohio S. & C. P. Dec. 725; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564. And if a physician in his treatment of a patient exercised reasonable care, skill, and diligence, and because of the illness of his father turned the patient over to another competent physician for further treatment, and the patient refused to go to the other physician, the liability of the physician ceases, and the plaintiff assumes herself the consequences of any injury resulting from the neglect of further treatment. Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094. "Geiselman v. Scott, 25 Ohio St. 86; Young v. Mason, 8 Ind. App. 264, 35 N. E. 521; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675. 74 But the information which a surgeon may give to a patient concerning the nature of his malady is a circumstance which should be considered by the jury in determining the question whether or not the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence. Geiselman v. Scott, 25 Ohio St. 86. Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 668. MeCandless v. McWha, 22 Pa. 261; DuBois v. Decker, 130 N. Y. 325, 14 L R. A. 429, 27 Am. St. Rep. 529, 29 N. E. 313. "Lawson v. Conaway, 37 W. Va. 159. 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564; Schoonover v. Holden (Iowa) 87 N. W. 737. 76 Williams v. Brooklyn, 33 App. Div. 539, 53 N. Y. Supp. 1007. And refusal upon the part of a person who had suffered a personal injury to submit to an operation is not necessarily a forfeiture of his right to recover for the injury, though he made a mistake in not accepting the advice to submit to the operation. Ibid. TeDuBois v. Decker, 130 N. Y. 325, 14 L. R. A. 429, 27 Am. St. Rep. 529. Ly N. E. 313; Sanderson v. Holland, 39 Mo. App. 233; Fowler v. Sergeant, 1 Grant, 63 damages notwithstanding his own negligence, where the negligence of the physician was the sole cause of the injury, even though the disease or injury was aggravated by the improper treatment of those in charge of the patient. If the negligence of the patient can be separated from that of the physician, the patient may recover for such separate injury as proceeded solely from the distinct negligence of the physician;65 though in Indiana, and perhaps some of the other states, the rule is that a patient cannot recover from his physician for an injury to which he contributed in any degree, either by his own negligence or by disregarding directions of the physician.66 Permitting treatment by a physician after being informed or becoming fully aware of his want of skill is contributory negligence, which will bar an action for resulting injuries;67 and demanding particular action without asking advice as to its propriety exonerates the physician from liability for injurious results, when the impropriety of such action was not apparent.68 But negligence cannot be properly imputed to the father of a sick child because he employed a clairvoyant physician to treat him, with full knowledge of his methods of diagnosis and prescription. 69 509. Effect of failure to conform to directions. It is the duty of the patient to conform to necessary prescriptions, directions, and treatment of his physician if they are such as a physician or surgeon of Schoonover v. Holden (Iowa) 87 N. W. 737. And a person with a broken limb is not required to submit to have it rebroken, in order to relieve her physician from liability for lack of ordinary care and skill in setting it, where the operation would be attended with great pain, and her age and physical condition were such that it might prove fatal. Morris v. Despain, 104 Ill. App. 452. Hibbard v. Thompson, 109 Mass. 289; Sanderson v. Holland, 39 Mo. App. 233; West v. Martin, 31 Mo. 375, 80 permit a recovery for damages for the negligence of the physician, will not be made; since it cannot be known what would have been the result of the physician's treatment had he remained at the hospital. Richards v. Willard, 176 Pa. 181, 35 Atl. 114. Jones v. Angell, 95 Ind. 376; Young v. Mason, 8 Ind. App. 264, 35 N. E. 521. "Lorenz v. Jackson, 88 Hun, 200, 34 N. Y. Supp. 652. as Hancke v. Hooper, 7 Car. & P. 81. While it is the duty of surgeon when called upon to perform some surgical operation to advise against it if in his opinion it is unnecessary or will result injuriously, if he gives such advice, and the patient still insists upon the performance of the operation, and the surgeon performs it in compliance with his demands, he cannot be held responsible to the patient in damages. Gramm v. Boener, 56 Ind. 497. Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W. 228. ordinary care would adopt and sanction; and if he will not, or under pressure of pain cannot do so, the physician is not responsible for resulting injury.70 And this is the rule where his disobedience proximately contributed to the injury, though it appears that the physician's negligence or want of skill also contributed to it.71 And the rule is the same where the negligence or refusal to obey orders was that of persons in charge of the patient. 72 But before a physician can shift responsibility from himself to the patient on the ground that the latter did not submit to the course recommended, it must be shown that the prescriptions were proper and adapted to the end in view; and it is incumbent upon the surgeon to satisfy the jury on this point.73 While a patient has a right to rely upon the instructions and directions of his physician, and incurs no liability by so doing,74 he is not required to submit blindly to professional advice: he is entitled and bound to exercise reasonable judgment; and if his conduct was that of a reasonably prudent man, he cannot be charged with negligence for refusing to submit.75 Failure to obey instructions, however, which contributes to the aggravation of the patient's ailment, only tends to mitigate damages; it does not relieve the physician from the consequences of professional neglect or unskilful treatment.76 TO McCandless v. McWha, 22 Pa. 261; Haire v. Reese, 7 Phila. 138; Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 608; Haering v. Spicer, 92 Ill. App. 449; Littlejohn v. Arbogast, 95 Ill. App. 605; Jones v. Angell, 95 Ind. 376; Swanson v. French, 92 Iowa, 695, 61 N. W. 407; Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894; Dashiell v. Griffith, 84 Md. 365, 35 Atl. 1094; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; Geiselman v. Scott, 25 Ohio St. 86; Tish v. Welker, 5 Ohio S. & C. P. Dec. 725; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564. And if a physician in his treatment of a patient exercised reasonable care, skill, and diligence, and because of the illness of his father turned the patient over to another competent physician for further treatment, and the patient refused to go to the other physician, the liability of the physician ceases, and the plaintiff assumes herself the consequences of any injury resulting from the neglect of further treatment. Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094. "Geiselman v. Scott, 25 Ohio St. 86; Young v. Mason, 8 Ind. App. 264, 35 N. E. 521; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675. But the information which a surgeon may give to a patient concerning the nature of his malady is a circumstance which should be considered by the jury in determining the question whether or not the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence. Geiselman v. Scott, 25 Ohio St. 86. T2Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 668. 7 MeCandless v. McWha, 22 Pa. 261; DuBois v. Decker, 130 N. Y. 325, 14 L. R. A. 429, 27 Am. St. Rep. 529, 29 N. E. 313. "Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564; Schoonover v. Holden (Iowa) 87 N. W. 737. "Williams v. Brooklyn, 33 App. Div. 539, 53 N. Y. Supp. 1007. And refusal upon the part of a person who had suffered a personal injury to submit to an operation is not necessarily a forfeiture of his right to recover for the injury, though he made a mistake in not accepting the advice to submit to the operation. Ibid. 16 DuBois v. Decker, 130 N. Y. 325, 14 L. R. A. 429, 27 Am. St. Rep. 529, 29 N. E. 313; Sanderson v. Holland, 39 Mo. App. 233; Fowler v. Sergeant, 1 Grant, fers a right of action in a proper case against a physician for malpractice. 92 If 512. Form of the action.-A person injured by the negligence or want of skill of a physician may sue for the injury, either as for breach of contract, or in tort as for breach of duty imposed by law upon the physician, whether for hire or not;93 and either assumpsit or case may be maintained for breach of implied obligation upon the part of a physician to use proper care and skill;94 and case is the proper remedy where the physician's employment was induced by false or fraudulent representations, or where proper skill was not employed.95 two physicians are employed by the same patient, and they are guilty of malpractice, a single action may be maintained against both though their employment was several; and there may be a recovery against each for his own tort whether or not there was a recovery against the other. But a husband and wife cannot jointly sue a physician for malpractice in attending the wife, when the action is for the mere nonperformance of a duty imposed by the contract of employment; the action in such case would be solely in the right of the husband, and the wife could have no interest in it as a party thereto.97 96 513. Commencement of the action. The person injured by malpractice is the proper one to bring an action therefor, without reference to the question who employed the physician;98 though in case of injury to the person of a married woman by malpractice, the common-law rule, which seems to remain unaffected by statute in many instances, is that the husband and wife must join as plaintiffs.99 It is sufficient in Braunberger v. Cleis (Pa.) 4 Am. L. Reg. N. S. 587. But a right of action for malpractice exists under a statute giving an action to surviving relatives for unlawful violence or negligence causing death, only when the malpractice caused the death; however gross it may have been, it will not support an action if it was not the proximate cause of the death. Ibid. Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308; Lane v. Boicourt, 128 Ind. 420, 25 Am. St. Rep. 442, 27 N. E. 1111; Boor v. Lowrey, 103 Ind. 468, 53 Am. Rep. 519, 3 N. E. 151. Kuhn v. Brownfield, 34 W. Va. 252, 11 L. R. A. 700, 12 S. E. 519. The tort may be waived in an action for malpractice, and the action based upon the contract of employment. Lane v. Boicourt, 128 Ind. 420, 25 Am. St. Rep. 442, 27 N. E. 1111. A complaint in an action for malprac- tice, stating that the plaintiff employed Cadwell v. Farrell, 28 Ill. 438. "Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094. Pippin v. Sheppard, 11 Price, 127. Where the statute provides that, when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter if the former might have maintained an action, had he lived, against the latter, for the same act or |