Avery v. Woodruff

1. Physicians and Surgeons — Dentists—Compensation. Under section 7 of Act No. 183, Pub. Acts 1913 (2 Comp. Laws 1915, § 6754), providing tbat any person shall be said to be practicing dentistry within the meaning of that act who shall treat disease or lesions of the human teeth or jaws, a regularly qualified dentist who administers treatment to a patient for an incurable cancer of the mouth, using cocaine and other drugs, under the direction of duly qualified physicians, in which administration some skill was required, may recover for such services either as services of a nurse or as services of a qualified dentist. 2. Same. A regularly qualified dentist, in treating a patient for an incurable cancer of the moutH, under the direction of duly qualified physicians, is not practicing medicine within the meaning of Act No. 237, Pub. Acts 1899, nor of Act No. 368, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6724-6734).1

Error to Livingston; Miner, J. E. L. Avery presented a claim against the estate of Henrietta Carpenter, deceased, for services rendered. The claim was disallowed in the probate court, and claimant appealed to the circuit court. Judgment for claimant. Defendant Russell Woodruff, executor, brings error. Claimant, a duly qualified dentist, practicing his profession in the city of Howell, filed a claim against the estate of Henrietta Carpenter as follows: Bill of Particulars. Howell, Mich., Nov. 15, 1915. Mrs. Azel Carpenter to E. L. Avery, Dr., Dentist. To treating and cleansing cancer of the mouth three times a day from February 12, 1915, to April 30, 1915, 77 days, at $2.00 per day......$154.00 To treating and cleansing cancer four to six times a day from May 1, 1915, to July 3, 1915, 64 days, at $3.00 per day....................$192.00 April 14, 1915. Cocaine and Antiseptic......... 4.00 June 1, 1915. Cocaine and Antiseptic......... 4.00 June 23, 1915. Cocaine and Antiseptic......... 4.00 Total .................................... $358.00 Feb. 28, 1915. By cash.................$10 March 9, “ “ “ 10 March 20, “ “ " 5 March 24, “ “ “ 5 April 1, “ “ “ 5 April 10, “ “ “ 5 April 22, “ “ “ 5 April 27, “ “ “ 10 May 26, “ “ “ 25 May 15, “ “ “ 25 May 28, “ “ “ 45 June 9, “ “ “ .. ••.............. 20 June 18, “ “ “ ¡25 June 30, “ “ “ 25 - $220.00 Balance due.............................. $138.00 It appears from the record that the decedent had suffered for some months from ,an incurable cancer of the mouth. She committed suicide on July 3, 1915, claimant having treated her from February 12, 1915, to the day of her death. During this period of treatment defendant cleansed and treated the cancer from three to six times each day, and removed therefrom from time to time pieces of bone. He administered to the decedent cocaine, morphine, and other drugs. Between March 23, 1915, and July 3, 1915, Dr. Huntington, a regular practicing physician and surgeon, made frequent visits to decedent. ' He knew from decedent and claimant that claimant was cleansing and caring for the cancer, and himself instructed claimant to administer antiseptic and anaesthetic drugs. No question is raised in this record as to the value of claimant’s services. At the conclusion of claimant’s case counsel for the estate made a motion for a directed verdict upon the ground that the services rendered by claimant were rendered for the treatment of a cancer by a man not shown to be legally qualified to practice medicine in the State of Michigan; that a treatment of cancer by a dentist is a treatment in violation of the law. Whereupon the court said to Mr. Howlett, counsel for claimant: “The Court: I don’t suppose, Mr. Howlett, you claim he is a doctor? “Mr. Howlett: Oh, no. “The Court: Simply he was performing services as a private citizen? “Mr. Howlett: Private citizen or nurse, under the direction of Dr. Sigler and Dr. Huntington. We object to the motion being granted. “Mr. Roche (counsel for defendant): I will say farther he has not shown himself to be a nurse who is authorized or empowered by the statute. “The Court: There is no statute on that in this State. “Mr. Roche: I understand. I wanted the motion on the record that any services rendered in furtherance of a contract, either express or implied, rendered in violation of the law are void. “The Court: The motion will be denied.” The court thereupon submitted the case to the jury, leaving them to determine the reasonable value of the claimant’s services. The jury returned a verdict in favor of the claimant in the sum of $138, the full amount claimed.