587. Effect of failure to follow proper directions.-A person injured by the act or negligence of another, who employs a reputable physician to care for his injuries, but negligently fails to follow directions as to treatment of his injuries, and thereby aggravates his damages, cannot recover of the party causing the injury to the extent that the damages were thereby enhanced and increased. But it cannot be said as a matter of law that a patient may not, without imputation of negligence which will prevent a recovery, depart from the directions of his physician; the question whether or not such departure constitutes negligence being one for the jury. And one who receives an injury at the hands of another cannot be expected in every instance to know the most prudent thing for him to do; and he should not be held negligent because his sufferings have impelled him to an unfavorable course, unless it plainly appears that he knew it to be unfavorable." And a negligent or unlawful act of an insane person, or one otherwise incompetent to understand or obey directions of a physician, will not be imputed to him as contributory negligence.8 Subsequent negligence in disobeying directions of his physician, however, on the part of a person injured, does not bar a recovery against the person causing the injury; it merely reduces it to such damages as were caused by the original injury. And one claiming that an injury has been enhanced by failure to follow instructions of a physician has the burden of proving it.10

'Strudgeon v. Sand Beach, 107 Mich. 496, 65 N. W. 616; Goshen v. England, 119 Ind. 368, 5 L. R. A. 253, 21 N. E. 977; Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446.

And the rule with reference to the degree of care required of a person injured by the negligence of another, in the employment of a physician and surgeon, and in procuring and submitting to proper medical treatment, is not changed or affected by the fact that the person injured was himself a physician and surgeon. Boynton v. Somersworth, 58 N. H. 321.

'Sullivan v. Tioga R. Co. 112 N. Y. 643, 8 Am. St. Rep. 793, 20 N. E. 569.

And 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 the patient, in disobeying the instructions of the surgeon, was guilty of contributory negligence. Geiselman v. Scott, 25 Ohio St. 86.

'Gulf, C. & S. F. R. Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66.

In Chamberlin v. Morgan, 68 Pa. 168, it was held that evidence by a consult ing physician, that, on examination of a girl whose arm was injured, in the presence of, and at the request of, her father, he offered to put her under the influence of an anesthetic, and attempt to reduce the fracture; and that it could then have been reduced; and that the father replied in her presence that so long as she was improving he would not have it disturbed,-is not admissi ble in an action brought by the girl, where the consulting physician had only been asked to examine her arm, and give his opinion about it; since that did not oblige the father to adopt his advice.

People ex rel. Norton v. New York Hospital, 3 Abb. N. C. 229.

"Goshen v. England, 119 Ind. 368, 5 L. R. A. 253, 21 N. E. 977; Keyes v. Cedar Falls, 107 Iowa, 509, 78 N. W. 227.

10Goshen v. England, 119 Ind. 368. 5 L. R. A. 253, 21 N. E. 977. And see Lawrence v. Housatonic R. Co. 29 Conn. 390.

588. Medical services rendered as affecting damages.-The plaintiff in an action for a personal injury is entitled to recover against the person who caused the injury, if at all, for expenses of medical attendance made necessary by the injury, including medicine.11 And bills of physicians for services are properly admitted in evidence in such an action as memoranda of the account charged, and of the amount the injured person has promised to pay; though he is required to prove the facts, and to show that the charges were reasonable, by other testimony.12 And a physician or surgeon may properly be allowed to testify as to the value of his services, in an action by his patient for damages caused by a personal injury for which he attended him, against the person who caused the injury, for the purpose of determining the amount of damages suffered.13 And whenever it is proper to prove the services of a physician or surgeon in such a case, the fair value thereof is the legal rule; and evidence of a custom among physicians and surgeons not to charge members of the profession for services rendered, and that the person injured was a physician, is incompetent and immaterial.14 It is the reasonable value of the medical services, however, that is to be allowed, and not the amount charged or paid.15 And the nature and extent of the liability for medical aid

"M'Donald v. Illinois C. R. Co. 88 Iowa, 345, 55 N. W. 102; Montgomery Street R. Co. v. Mason, 133 Ala. 508, 32 So. 261; Omaha Street R. Co. v. Emminger, 57 Neb. 240, 77 N. W. 675; Gulf, C. & 8. F. R. Co. v. Bell, 24 Tex. Civ. App. 579, 58 S. W. 614.

And this is the rule notwithstanding the fact that he had not yet actually paid the surgeon. Omaha Street R. Co. v. Emminger, 57 Neb. 240, 77 N. W. 675. And an instruction in an action for such a recovery, that he is entitled to recover for medicine and medical attendance, is not rendered objectionable by the fact that there is no evidence that any medicines were bought, other than the testimony of the physician as to the amount of his charges. McDonald v. Illinois C. R. Co. 88 Iowa, 345, 55 N. W. 102.

And a person suffering a personal injury is not required to have his family take care of him without regard to the question of their competency, but may, if he sees fit, procure a trained nurse or other competent person to take care of him; and the person causing the injury cannot combat liability for the services of such nurse, on the ground that his family could have given him the VOL. III. MED. JUR.-41.

needed care and attention without expense. Kendall v. Albia, 73 Iowa, 241, 34 N. W. 833.

1 Gulf, C. & S. F. R. Co. v. Harriett, 80 Tex. 73, 15 S. W. 556.

13 McNaier v. Manhattan R. Co. 22 N. Y. S. R. 840, 4 N. Y. Supp. 310; Chicago v. Wood, 24 Ill. App. 40.

And the testimony of the plaintiff in an action for a personal injury, as to the presenting of their bills by his physicians, and of the physicians that they had rendered him services to the amounts of the bilis presented, is sufficient to entitle the charges for medical services to consideration by the jury, on the question of recovery therefor against the person causing the injury. Reynolds v. Niagara Falls, 81 Hun, 353, 30 N. Y. Supp. 954.

"Indianapolis v. Gaston, 58 Ind. 224.

15 Bowsher v. Chicago, B. & Q. R. Co. 113 Iowa, 16, 84 N. W. 958; Sachra v. Manilla, 120 Iowa, 562, 95 N. W. 198; Omaha Street R. Co. v. Emminger, 57 Neb. 240, 77 N. W. 675; Missouri, K. & T. R. Co. v. Nail, 24 Tex. Civ. App. 114, 58 S. W. 163; Gulf, C. & S. F. R. Co. v. Bell, 24 Tex. Civ. App. 579, 58 S. W. 614.

But the presentation of a physician's

must be clearly and accurately shown.16 And, ordinarily, expenses for medical attendance are not recoverable as items of damage in an action by a married woman for a personal injury, unless she has charged her separate estate; since the liability therefor is her husband's, and not hers.17 Nor is an infant ordinarily entitled to recover for such expenses, the primary responsibility for medical attendance resting with his parents.18 He may recover, however, when the circumstances are such that his parents are not responsible for attendance upon him;19 but he must allege and prove the special facts rendering him personally and primarily liable therefor notwithstanding his minority.20 When the question of license or qualification of a physician arises collaterally, as in a civil action for damages for a personal injury between third parties, due qualification and license to practise is presumed;21 and evidence in such a case that a person

bill, and its payment or settlement by note or otherwise, is sufficient evidence of its reasonableness, in an action for damages for a personal injury, in the absence of evidence to the contrary, to support a verdict for damages in which a recovery of the amount of such bill is included. Abbitt v. St. Louis Transit Co. (Mo. App.) 79 S. W. 496.

And an instruction to allow him such sum as will compensate him for money expended for medical treatment of the injury received is not reversible error. Sachra v. Manilla, 120 Iowa, 562, 95 N. W. 198; Flanagan v. Baltimore & O. R. Co. 83 Iowa, 639, 50 N. W. 60.

Nor is an instruction directing the allowance, as damages, of the cost of any medicines used by the plaintiff in effecting his cure, though there was no evidence that he had paid for any medicine, where the evidence is conclusive that other items of loss and expense exceeded the award. Abbitt v. St. Louis Transit Co. (Mo. App.) 79 S. W. 496.

16Heater v. Delaware, L. & W. R. Co. 90 App. Div. 495, 85 N. Y. Supp. 524. Necessary expense incurred for medical attention cannot be recovered in an action for a personal injury, where permanent injury is alleged and relied on as a basis of recovery, and no effort was made to charge the defendant with special damages. Illinois C. R. Co. v. Hanberry, 23 Ky. L. Rep. 1867, 66 S. W. 417.

And a person suffering a personal injury who employed a physician, but had not actually paid him, cannot recover of the person causing the injury

for the fee of the physician, unless she can show that there is a legal debt against her for such fee, which she can be compelled to pay; and if the physician was unlicensed, such an item of damages cannot be allowed. Chicago v. Honey, 10 Ill. App. 535; San Antonio Street R. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752. And in such case proof of want of qualification is competent. San Antonio Street R. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752.

"Moody v. Osgood, 50 Barb. 628; Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328; Gilson v. Cadillac (Mich.) 95 N. W. 1084.

But testimony as to the amount paid by a husband for medical attention to his injured wife is admissible in an action brought by her for the injury as tending to show her condition and the medical attention shown her, but cannot be taken into consideration by the jury as a matter of damages. Oliver v. Columbia, N. & L. R. Co. 65 S. C. 1, 43 S. E. 307.

18 Koehler v. Interurban Street R. Co. 88 N. Y. Supp. 1056; Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S. W. 133.

10 Illinois C. R. Co. v. Jernigan, 101 Ill. App. 1; Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S. W. 133.

Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S. W. 133.

"Chicago v. Wood, 24 Ill. App. 40; North Chicago Street R. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899.

had practised medicine in the state for a long time is prima facie sufficient to show that he was lawfully entitled to practise.2

North Chicago Street R. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899.

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