c284:No. 9814

CLARK, Circuit Judge
(dissenting).
I dissent for the reason that I consider this one of the most flagrant and disgraceful malpractice cases that has ever fallen under my observation. The appellee was taken into the hospital in an unconscious condition suffering from a condition that could have been readily recognized if certain well-recognized tests such as the urine test and the blood test had been applied. The physician — appellant callously refused or failed to apply these tests and turned the patient over to the police as a drunk. She was hauled away to the Women’s Bureau, where she was confined for several hours. On removal to another hospital where she had the attention of real physicians it was found that she was suffering from a blood clot on the brain, and an operation was performed. At the time of the trial she was a complete invalid and the inmate of a nursing home.
I rhink that on this record of neglect and callousness the'jury was entirely entitled to conclude that the patient’s condition was aggravated by the treatment she had received. I see no error in the instructions. While it might well have been more specific and more amplified on the question of proximate cause I find no ground for reversal.
I favor affirmance.
On Petition for Rehearing.
PRETTYMAN, Circuit Judge.
Appellee urges that the judgment of this court is erroneous, ‘because appellants did not request or the trial court refuse an instruction of the sort discussed in our opinion.
The trial court refused to instruct the jury that “before the plaintiff can recover, the burden of proof is upon her to prove by a fair preponderance of the evidence * * * that the alleged negligence was the proximate cause of the injuries concerning which she complains.” This error was prejudicial, for no equivalent instruction was given.
Lest onr opinion be misunderstood as violating Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., it will he modified by inserting before the last two sentences of the opinion (just before “There was no instruction’, etc.), the two sentences just above-written.

Passage view · GavelSight