On appeal from the Essex County Circuit Court.
For the plaintiffs-appellants, Estrin & Estrin.
For the defendant-respondent, Colie & Schenck (Frederic R. Colie, of counsel).
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. Plaintiffs brought suit against defendant to recover damages for an alleged breach of contract to perform an operation upon one Jeanette Hanig, a minor. Prior to trial the second and fourth counts in the complaint were
struck out and the case went to trial upon the first and third counts only. The third count is for consequential damages allegedly accruing to Louis Hanig, the father of the infant Jeanette Hanig, and the cause of action therein set forth is identical with (excepting the element of damages) that set forth in the first count.
At the conclusion of the plaintiffs' case, the trial judge granted a motion for a nonsuit and from the judgment entered thereon in favor of the defendant the present appeal is taken.
As we shall hereinafter point out the nonsuit was right.
At the trial it appeared, without substantial dispute, that the infant plaintiff, ever since she was three years old had been afflicted with serious trouble of the head, nose and throat, at times threatening to involve her lungs. When she had attained the age of nine years, her physician sent her, with her mother, to Dr. Orton, the defendant, a surgeon specializing in such cases. He examined the child thoroughly and said that "the child had an infected left antrum and that he would have to perform a radical operation -- make a hole in the mouth and cut away and remove the diseased tissue. Also, he would have to give five or six bronchoscopy treatments after the operation to clear up the chest." That was in April or June, 1929. The mother desired to postpone the operation in order to try a change of climate. She first took the child to a warmer climate in the west and afterwards to a mountain resort in Pennsylvania. Obtaining no relief for her daughter thereby, she again in May, 1931, turned to the defendant and asked him to operate as he had agreed to do, and at that time his compensation was agreed upon. He then listened to the child's chest and suggested that the operation had better be postponed since he thought she was not in fit condition at that particular time. On June 22d, 1931, after further examination, it was determined to operate. The child was taken to the hospital, the surgeon being instructed "to act on his own best judgment" and the child was operated upon by the defendant for an infected left antrum, as appears from the hospital records, the mother with full knowledge of the
character of the operation giving her written consent. An anaesthesia was administered, the operation began at four-fifteen and closed at four-forty P.M., when the surgeon recognized a condition as "quite dangerous;" in fact she had a crisis of pneumonia, and the surgeon "deemed it inadvisable to continue with the operation" making no attempt to remove the membrane. The child remained in the hospital for five days, after which she was taken home and was examined and treated by the defendant from time to time, usually about twice a week, at his office or at the hospital, and from October, 1931, he gave her many bronchoscopy treatments at the hospital until 1933, when the mother discontinued the defendant's treatments and employed other ...