{ "id": 2423992, "name": "Jack Simon, Appellee, v. Maurice I. Kaplan, Appellant", "name_abbreviation": "Simon v. Kaplan", "decision_date": "1944-01-24", "docket_number": "Gen. No. 42,750", "first_page": "203", "last_page": "212", "citations": [ { "type": "official", "cite": "321 Ill. App. 203" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "226 Ill. 178", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3327480 ], "opinion_index": 0, "case_paths": [ "/ill/226/0178-01" ] }, { "cite": "319 Ill. App. 191", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5651428 ], "opinion_index": 0, "case_paths": [ "/ill-app/319/0191-01" ] }, { "cite": "260 Ill. App. 544", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5633400 ], "opinion_index": 0, "case_paths": [ "/ill-app/260/0544-01" ] }, { "cite": "182 Ill. 298", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3214003 ], "opinion_index": 0, "case_paths": [ "/ill/182/0298-01" ] }, { "cite": "237 Ill. App. 488", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5508166 ], "opinion_index": 0, "case_paths": [ "/ill-app/237/0488-01" ] }, { "cite": "272 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4830216 ], "opinion_index": 0, "case_paths": [ "/ill/272/0071-01" ] }, { "cite": "354 Ill. 40", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5291695 ], "opinion_index": 0, "case_paths": [ "/ill/354/0040-01" ] }, { "cite": "244 Ill. App. 320", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3341734 ], "opinion_index": 0, "case_paths": [ "/ill-app/244/0320-01" ] }, { "cite": "320 Ill. App. 359", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4977954, 4978980 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0359-01", "/ill-app/320/0359-02" ] } ], "analysis": { "cardinality": 676, "char_count": 15852, "ocr_confidence": 0.522, "pagerank": { "raw": 1.1368312541718136e-07, "percentile": 0.5775050977875544 }, "sha256": "66db05977819c0a97ac0e86c3f5a1b6feb88c98ea7c0d009885215d9e1853af7", "simhash": "1:5bf674d8d3aba4cd", "word_count": 2738 }, "last_updated": "2023-07-14T18:39:56.502195+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jack Simon, Appellee, v. Maurice I. Kaplan, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice O\u2019Connor\ndelivered the opinion of the court.\nPlaintiff brought an action against defendant to recover damages claimed to have been sustained by him through the negligence of defendant, a physician, in the use of an x-ray machine on plaintiff\u2019s face in an endeavor to cure barber\u2019s itch. There was a verdict and judgment in plaintiff\u2019s favor for $4,500 and defendant appeals.\nThe record discloses that defendant is a physician licensed to practice in Illinois since 1913, and for a number of years has been associate professor at the Chicago Medical School where he teaches radiology two days a week and where he holds a clinic Friday afternoons for a group of students; that since 1922 his practice has been limited to the use of x-ray in the diagnosis and treatment of ailments; that plaintiff, who was about 45 years of age, had been employed for a number of years as a shoe salesman and was troubled with what is commonly known as \u201cbarber\u2019s itch\u201d which developed about February, 1941. May 17, 1941 he went to the clinic at the Chicago Medical School, and after an examination was referred to defendant because the clinic had no x-ray machine, and on May 29 defendant treated plaintiff\u2019s face using an x-ray machine.\nThe evidence is further to the effect that at and before the time plaintiff went to the clinic his face was swollen, many pustules were exuding pus, the skin on his face was cracked and bleeding and there were some scabs.\nDefendant\u2019s testimony is to the effect that he used the machine 3% minutes on each side of plaintiff\u2019s face where it was affected; that the machine was automatically shut off by a time mechanism at the end of 3% minutes, while plaintiff\u2019s testimony is to the effect that each side of the face was treated about 10 minutes. After the treatment the doctor told plaintiff to return in about 10 days but he did not return until about two weeks, at which time his face was red and at that time defendant gave him some salve and told him to return in about a week or ten days, when defendant would give him another x-ray treatment. Plaintiff did not retufn and did not see any doctor until June 19, when he saw Dr. Caro, a skin specialist, who thereafter treated him two or three times a week at first, later about twice a month and then saw him about once a month to the time of the trial which began January 4, 1943.\nDr. Caro, a licensed physician, called by plaintiff, gave testimony to the effect that he had many years of experience in the field of diseases of the skin \u2014 dermatology \u2014 and had been engaged in the treatment of skin diseases for a number of years. He described the condition of plaintiff\u2019s face when he first treated him on June 19, 1941; that plaintiff was troubled, with the so-called barber\u2019s itch; that he diagnosed plaintiff\u2019s condition as \u201can acute dermatitis, produced, probably, by radiation. That is x-ray. \u2019 \u2019 That he treated plaintiff a number of times after that day and his condition improved in September or October, 1941. That \u201cAt the present time he shows the effects that we usually see in chronic x-ray burn;\u201d that \u201cI use x-ray in my work and have used it since 1928, for fourteen years. I use it in my work only in treating skin conditions. I have had occasion to treat x-ray burns in my practice . . . I have treated at least ten or fifteen cases of x-ray burns in a year.\u201d And he gave as Ms opinion that if proper dosages of x-ray were applied the hair of the face should not fall out permanently, that \u201catrophy of the skin with discoloration and enlargement of the veins should never follow with the dosages that are ordinarily used.\u201d\nDr. Uhlmann (called by plaintiff) a licensed physician for many years, who appears to have been qualified, testified that he specialized \u201cin radio-therapy, x-ray, diagnostic and therapeutic:\u201d that he had used x-ray in his work since 1925; that he was familiar with the customary use of x-ray in the treatment of barber\u2019s itch; that he had had experience with x-ray burns for the past 14 years; that he saw plaintiff a few days before the trial and observed in his face several signs of disease which he proceeded to mention; that the condition he found on the upper part of the face \u201ccould not be due to barber\u2019s itch or the after effects of barber\u2019s itch.\u201d In answer to a hypothetical question he testified: \u201cThe logical conclusion is that the patient received more x-ray to the upper part than he received in the lower part of his cheeks;\u201d that in his opinion, the treatment mentioned in the hypothetical question \u201cwould not be usual and customary for a specialist to apply enough x-ray to bring about a condition of atrophy of the skin, thinning of the skin, with erosions.\u201d\nDefendant in his own behalf testified that he had been a licensed physician since 1913, and mentioned further facts to show that he was qualified to treat patients for barber\u2019s itch. \u201cIn 1914 I began to do x-ray work and gradually went into that until about 1922, when I quit general practice and went into x-ray work exclusively. In 1917 or \u201918 I became the head of the x-ray department of the Mt. Sinai Hospital of Chicago and maintained that position until 1934.\u201d During that period he had taken courses at Johns Hopkins, the Mayo Clinic and Washington University. \u201cSince 1922 I have limited my practice entirely to radiology, and that is the practice of x-ray diagnosis and x-ray therapy.\u201d That he maintains an office in Chicago and for 10 or 12 years has been associate professor at the Chicago Medical School. \u201cI teach the seniors radiology, and on Friday afternoons I hold a clinic there where I have groups of students. \u2018Radiology\u2019 is the science of x-ray.\u201d That he treated plaintiff on May 29, 1941, plaintiff having been sent to the doctor from the clinic, and found \u201cnumerous pustules with a redness all over his face including his lips, . . . His face was quite swollen. Many of these pustules were exuding pus. There were many areas that were cracked and they were bleeding, and the incrustations on the face were caused by the exudation of the serum together with the pus and blood, and they were vari-colored from pink to a greenish yellow.\u201d That plaintiff was suffering from what was commonly known as \u201cbarber\u2019s itch.\u201d That he applied the x-ray machine 3% minutes to each side of plaintiff\u2019s face. That \u201cIt is common after an x-ray exposure on an inflamed surface, that the skin becomes red, and after that redness or erythema subsides, then another x-ray exposure is given. That is the common practice and I have been practicing on patients right along for the last thirty years.\u201d He further testified that he had been treating cases of barber\u2019s itch, about 200 of them, before he treated plaintiff and that he had treated many cases since that time. That \u201cThe treatment that I gave the plaintiff on May 29,1941, was the same kind of treatment ordinarily and customarily given by me to patients suffering from the barber\u2019s itch. In fact, he received a less number of R units than I have given to quite a number of others.\u201d\nOn cross-examination he testified he gave plaintiff 217 R units on each side of the face making a total of 434. Defendant produced a card which he had prepared as a part of his office record at the. time he treated plaintiff on which it appears that he gave defendant \u201cthree and a half minutes to each side of the face, 500 R.\u201d And continuing on cross-examination he testified with some uncertainty and hesitation that the 500 B which appeared on the card was the number of units he intended to give plaintiff and that he had not given him more than 217 B\u2019s during the treatment, on each side of the face.\nDr. James T. Case, called by defendant, testified that he was a \u201cradiologist and physician, practicing specialty radiology.\u201d That he was a graduate of many schools and was professor of radiology in the Northwestern University Medical School in 1912 and was head of the x-ray department from that time to the present \u2014 a period of 31 years. That his practice h\u00e1d been confined almost wholly to radiology. \u201cThat means x-ray and radium.\u201d That he had treated 200 or 300 cases of barber\u2019s itch by x-ray. In answering a hypothetical question he testified that a total dosage of 500 B units to be given in two different treatments, \u201cI would say that he [the doctor giving the treatments] was quite within the ordinary and usual proper practice.\u201d That if 500 B units were given to each cheek in one treatment, \u201cThat would be somewhere near the upper limit of the proper dosage, it wouldn\u2019t be far from it.\u201d\nDefendant also called Dr. I. S. Trostler, who testified as to his qualifications and that he had taught x-ray in several Chicago institutions and also had given private lessons to students; that during his practice he had treated 50 or 60 cases of barber\u2019s itch through radiology over a period of approximately 35 years. In answer to a hypothetical question he said that if 217 units were given in the treatment of barber\u2019s itch he would consider that according to the usual practice of physicians of skill in using x-ray in Chicago. And that if the patient was given 500 B units on each cheek in a treatment for barber\u2019s itch he would think this was the proper practice.\nCounsel for defendant say that before a recovery can be had in a malpractice case it must be shown by affirmative evidence that the physician was unskillful and negligent and that his want of skill caused plaintiff\u2019s injury. We think this is a correct statement of the law. Lucarelli v. Winters, 320 Ill. App. 359 (Abst.); Wallace v. Yudelson, 244 Ill. App. 320; Schireson v. Walsh, 354 Ill. 40. Counsel further contend that the liability of a physician for injuries caused by the misuse of an x-ray machine rests upon the same principle of law as any other branch of medicine or surgery. We think this is also the law.\nIt is contended (1) that the court erred in permitting expert witnesses called by plaintiff to answer directly questions that were to be decided by the jury. (2) That the diagnosis of plaintiff\u2019s expert witnesses, that plaintiff\u2019s condition was due to x-ray exposure, is not supported by the facts and (3) that the court erred in instructing the jury.\n(1) It is argued by counsel that the medical experts called by plaintiff were permitted to testify directly that the x;-ray treatment caused plaintiff\u2019s condition rather than that it might or could have caused his condition and that this is contrary to the rule of law announced by our Supreme Court in Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. It might to some slight extent appear that plaintiff\u2019s expert witnesses testified directly that the x-ray treatment given caused plaintiff\u2019s condition but upon examination of their testimony we think it clear that they were but giving their opinion that the treatment might or could have caused plaintiff\u2019s condition and that the jury were not misled.\n(2) Whether the verdict of the jury in plaintiff\u2019s favor (finding in effect that defendant was negligent in applying the x-ray treatment to plaintiff\u2019s face) is supported by the evidence, we are of opinion that we are unable to say that the finding of the jury is against the manifest weight of the evidence. Plaintiff called two experts who gave testimony tending to show that defendant had been negligent in treating plaintiff. On the other side, defendant and two other experts gave testimony to the contrary. In these circumstances we are not warranted under the law, in disturbing the verdict of the jury.\n(3) Complaint is made that the court erred in giving instruction Nos. 15 and 16 requested by plaintiff. Each of these instructions was on the question of the amount of damages in case the verdict should be for plaintiff. By instruction No. 15 the jury were told, \u201cIf, under a preponderance of the evidence and instructions of the court, the jury find the issues for the plaintiff and that said plaintiff has sustained damages by reason of physical pain and suffering undergone by him as a natural, direct and proximate result of negligence of the defendant, as charged and alleged by the plaintiff\u201d \u2014 the instruction continues as to what they should consider in arriving at the amount of the damages. The complaint to this instruction is that it, in effect, told the jury that if they found from a preponderance of the evidence, under the instructions of\" the court, that plaintiff suffered damages as a result of defendant\u2019s negligence, it in effect, assumed that the defendant was negligent. We think this objection is hypercritical, and while it would have been better to have told the jury that if they found plaintiff suffered damages as a proximate result of defendant\u2019s negligence, if any, yet it did not direct a verdict, and we think the jury were not misled because they were told in another instruction that \u201cIf you believe from the evidence in this case that the defendant used ordinary care and skill in his treatment of plaintiff, and exercised his best judgment in such treatment, then it is your duty under the law to find the defendant not guilty.\u201d Moreover the instruction told the jury they must find plaintiff was damaged as a result of defendant\u2019s negligence \u201cas charged and alleged\u201d by plaintiff in his complaint.\nThe complaint made to instruction No. 16 is that it told the jury that if they found for the plaintiff from a preponderance of the evidence under the instructions of the court in fixing the amount of damages, if any, they should take into consideration all the evidence pertaining to plaintiff\u2019s injuries which were the proximate result of the failure of the defendant to exercise ordinary skill and care in the application of x-ray treatment and that they should also take into consideration whether plaintiff had been marred in his personal appearance, etc. What we have said about instruction No. 15 is applicable here. Another objection to this instruction is that in fixing plaintiff\u2019s damages the jury might take into consideration plaintiff\u2019s marred personal appearance. In Fitzgerald v. Davis, 237 Ill. App. 488, we held that plaintiff\u2019s marred personal appearance was a proper element for the jury to consider in fixing the damages. We there said: \u2018 \u2018 The law only prohibited the recovery of damages in such a case for mental suffering which results from embarrassment or chagrin and which suffering has no relation to physical pain. Chicago City Ry. Co. v. Anderson, 182 Ill. 298. She might recover for disfigurement which resulted from the accident.\u201d To the same effect is Nosko v. O\u2019Donnell, 260 Ill. App. 544; Demikis v. One Cent Club, Inc.,.319 Ill. App. 191 and Chicago City Ry. Co. v. Smith, 226 Ill. 178. In the Smith case where the jury were instructed that they might consider plaintiff\u2019s marred personal appearance in estimating the damages, it was held the instruction was warranted. The court there said: \u201cIn regard to the first objection [marred personal appearance] pointed out to this instruction, the evidence shows that appellee was more or less disfigured about his face, head and shoulder, . . . when all the evidence is considered, there is a substantial basis in it to warrant the instruction. \u2019 \u2019\nOf course every one knows that the disfigurement of one\u2019s face which is the result of defendant\u2019s negligence often may cause damages, for example, plaintiff may be unable to secure employment on account of such disfigurement.\nThe judgment of the circuit court of Cook county is affirmed.\nJudgment affirmed.\nNiembyer and Hatchett, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice O\u2019Connor" } ], "attorneys": [ "Lord, Bissell & Kadyk, of Chicago, for appellant.", "Finn & Fitzpatrick and Frank P. Kronenberg, all of Chicago, for appellee." ], "corrections": "", "head_matter": "Jack Simon, Appellee, v. Maurice I. Kaplan, Appellant.\nGen. No. 42,750.\nHeard in the first division of this court for the first district at the October term, 1943.\nOpinion filed January 24, 1944.\nLord, Bissell & Kadyk, of Chicago, for appellant.\nFinn & Fitzpatrick and Frank P. Kronenberg, all of Chicago, for appellee." }, "file_name": "0203-01", "first_page_order": 231, "last_page_order": 240 }