Martin v. Cunningham ( 1916 )

Ellis, J.

(dissenting) — It seems to me that the malpractice of a physician is his own act and, if it exists at all, furnishes ground for an independent action. The railroad company performed its duty by selecting a competent physician; but even a competent physician may be negligent, and, if he is negligent to another’s injury, I can see no reason why he should not be held to respond in damages. The physician is not a joint tort feasor. His negligence arises subsequently to the original injury. The release of the railroad company should be held to be no more than a release from the consequences of its own negligence; not from the consequences of the independent negligence of another. I therefore dissent.