Verdier v. Goreau , 1922 La. App. LEXIS 109 ( 1922 )

Charles F.Claiborne,Judge.

The plaintiff herein p^yed for judgment for professional services rendered-

He avverred that from December 14th 1920 to 'March 22nd 1921 he treated the defendant^for which he makes the following charges.

Examination fee $10.00

Operation 10.00

88 office treatments 264.00

Value of instrument loaned 3.00

$287.00

Less payment on account Feb 28th 1921 100.00

Balance due §187,00

Defendant pleaded a general denial,and averred that the plaintiff inserted in his olaims items of treatment^ of diseases of which he never suffered and that others were brought on through the mal-treatment^ of the plaintiff;and "that after the payment of February 28"1921 it was understood rT that the plaintiff herein was to charge the ‘p^spondent nothing further for any of his alleged servloes-"

There was judgment for plaintiff,and the defendant gas appealed-

The first defense that will oocupy our attention is the one last set ups-was the payment of $100 a payment oryii aseuni- aooount or a payment in full?

.1st Defendant is the only¿witness wJjo t^ptifiedtts: stsCT'QSlGPLd &— ■f~Z'Z-Z_ that.There is no «fther-^ritness nor any written evidence of the agreement.The plaintiff denies the existence of such an agreement-The burdon of proving the agreement,was upon the defendant,and he has failed- , Q ^ ^

2nd The defendant charges that the plaintiff made an incorrect diagnosis of his ailment^and treated him for a disease from Which he was not suffering.The facts are that the defendant had been subject on several previous aocasions to the disease for whioh the plaintiff treated him: he remained under his treatment for about four months and submitted to his medication} the plaintiff swears he told him wafcafc what jp&a his trouble, the defendant says: he did not . At the aetil uP filmn ■ J'Wr, discontinued the defendant dissevered his visits'to plaintiff and consulted another Doctor.This Doctor did not find that the defendant was suffering from the cause for which the plaintiff was treating him} he changed the medication and at the end of a few weeks put the defendant upbn his feet-A Doctor of large experience says that the defendant liad some of the symptoms of the disease for which the plaintiff treated hlnyand that if the defendant had been thus aflicted the treatment administered to him would have been the proper one.The error of the plaintiff was therefore in his diagnosis.A physician is responsible -only for evident negligence or want of skill.Stern vs Lanng 106 La. 738-He 1b not liable because he has Committed an error,but because he haB been guilty of a fault 39 Dalloz 314 S 188.-2s/ A 53'2 —

We cannot say that the trial judge erred in his judgment.

Judgment affirmed.

December 11th 1922