NEGLIGENCE AND MALPRACTICE.
Malpractice, or _mala praxis_, may be defined to be an improper
discharge of professional duties, either through want of skill or
negligence. It is now more particularly applied to torts—when committed
by a physician, surgeon, or apothecary.
It is a great misdemeanor and offence at common law, whether it arise
from curiosity and experiment, or from neglect; because it breaks the
trust which the party has placed in the physician, tending directly to
his destruction [114]. A medical man who is guilty of gross negligence,
or evinces a gross ignorance of his profession, is criminally
responsible for the consequences. And one who, by a culpable want of
care and attention, or by the absence of a competent degree of skill
and knowledge, causes injury to a patient, is liable to a civil action
for damages; unless, indeed, such injury be the immediate result of
intervening negligence on the part of the patient himself; or unless
such patient has by his own carelessness directly conduced to such
injury [115].
It is sometimes difficult to distinguish between civil and criminal
malpractice, or to say when one is criminally, and when only civilly
responsible. But it may be said generally, that to constitute criminal
liability there must be such a |56| degree of complete negligence in
the practice as the law means by the word felonious [116].
There may be malpractice by commission, _i. e._, from the want of
ordinary skill in the discharge of professional duties; or malpractice
by omission, _i. e._, from negligence in the discharge of such duties.
The question, “Was there negligence?” will be answered from the stand
point of the law, not from that of medicine, when a matter comes to be
judicially investigated. The law as applicable to other professions
and occupations will be applied to the medical or surgical case under
consideration.
Strictly speaking, the term _negligence_ is limited in its application
to carelessness in the performance of professional duty; _carelessness_
is its proper synonyme. Duties performed without care, caution,
attention, diligence, skill, prudence, or judgment, are negligently
performed. Acts are so designated which are performed by one
heedlessly, even when there is no purpose to omit the performance of
duty. It is _non-feasance_, not malfeasance. It is the omitting to do,
and not the ill-doing—it is the leaving undone what one ought to have
done—not the doing what one ought not to have done—this last being a
want of skill. In its various degrees it ranges between simple accident
and actual fraud, the latter beginning where negligence ends [117].
Wharton, after criticising various definitions, proposes this,
“Negligence, in its civil relations, is such an inadvertent
imperfection, by a responsible human agent, in the discharge of a legal
duty, as immediately produces, in an ordinary and natural sequence,
a damage to another” [118]. |57| Negligence, in medical practice, is
a violation of the obligation that medical men impliedly enter into
when they accept the charge of a patient; such obligation enjoins care
and caution in what they do, and in what they omit to do. A medical
man is liable as well for want of skill, as for negligence, and an
injured party may bring his action to recover for damage resulting from
ignorance and carelessness, and recover on proving that he sustained
damage from either [119].
Physicians and surgeons have specified duties imposed upon them when
they undertake the charge of a patient. Refusing to perform their part
of the implied contract will constitute negligence, and for all injury
resulting therefrom they will be held accountable. It will constitute
a tort for which the law gives damages [120]. Of course a medical man,
unless he be an officer of the Government, charged with specific duties
which he thereby violates, has a legal right to decline to take charge
of a particular case. When in charge, however, he is liable for any
negligence, whether of omission or commission, which may produce injury
to his patient. _Voluntatis est suscipere mandatum, necessitas est
consummare_ [121].
There is an implied obligation on a man holding himself out to the
community as a physician and surgeon, and practising his profession,
that he should possess the ordinary skill requisite for reasonable
success, and that he should attend to the case with due care [122].
If the patient knows of the practitioner’s want of skill, he cannot
complain of the lack of that which he knew did not exist. |58|
A surgeon does not become an actual insurer [123]; the implied contract
is not to cure, but to possess and employ in the treatment of the
case such reasonable skill and diligence as are ordinarily exercised
by thoroughly educated surgeons; and in judging of the degree of
skill and attention required, regard is to be had to the time and
place. The law implies that in the treatment of all cases which they
undertake medical men will exercise reasonable and ordinary care and
diligence; they are bound always to use their best skill and judgment
in determining the nature of the malady and the best mode of treatment,
and in all respects to do their best to secure a perfect restoration
of their patients to health and soundness. But they do not impliedly
warrant the recovery of their patients, and are not liable on account
of any failure in that respect, unless it is through some default of
their own [124]. Tindal, C.J., in summing up to the jury in an action
for improper treatment to a hand and wrist, whereby the plaintiff
lost the use of her hand, well said, “Every person who enters into
a learned profession undertakes to bring to the exercise of it a
reasonable degree of care and skill. He does not undertake, if he is a
surgeon, that he will perform a cure, nor does he undertake to use the
highest possible degree of skill. There may be persons who have higher
education and greater advantages than he has, but he undertakes to
bring a fair, reasonable and competent degree of skill.”
Wharton and Stillé thus state the law: “A physician and surgeon is
only responsible for ordinary skill, etc., and for the exercise of his
best judgment in matters of doubt. He is not accountable for a want of
the highest degree of skill [125], nor for an erroneous, though honest
conclusion, |59| according to his best light [126]. The law has no
allowance for quackery. It demands qualification in the profession
practised, not extraordinary skill such as belongs to few men of rare
genius and endowment, but that degree which ordinarily characterizes
the profession. And in determining whether the practitioner possesses
ordinary skill, regard must be had to the advanced state of the
profession at the time [127].
As to what is ordinary or reasonable skill or care, the rule has
sometimes been laid down thus favourably, “The least amount of skill
with which a fair proportion of the practitioners of a given locality
are endowed, is to be taken as the criterion by which to judge the
physician’s skill or ability” [128]. Or, as another writer puts it,
“It has been finally determined to consider the least amount of skill
compatible with a scientific knowledge of the healing art as sufficient
to predicate the existence of ordinary skill” [129]. To render a medical
man liable even civilly for negligence, or want of due care or skill,
it is not enough that there has been a less degree of skill than some
other medical man may have shown, or a less degree of care than even
he himself might have bestowed, nor is it enough that he himself
acknowledges some degree of want of care; there must have been a want
of competent and ordinary care and skill, and to such a degree as to
have led to a bad result [130].
In a city there are many means of professional culture which are
inaccessible in the country. Hospitals can be walked, libraries
visited, new books and appliances bought, |60| constant intercourse
had with the greater lights of the profession. What is due diligence,
therefore, in the city, is not due diligence in the country; and what
is due diligence in the country is not due diligence in the city.
Hence, the question, in each particular case, is to be determined,
not by enquiring what would be the average diligence or skill of the
profession (which would be a thing very difficult to reach), but
what would be the diligence or skill of an honest, intelligent and
responsible practitioner in the position in which the one in question
was placed [131].
The skill required is not an _absolute_ but a _relative_ qualification;
and as such, therefore, always subordinated to whatever conventional
standard of professional proficiency we may choose to adopt. Like
morals, it may vary with times and places, or, if based upon
representative intellects, it is clear that the ideal type selected
must be one to which the majority, rather than the minority, of minds
approximate [132]. A physician, when called upon to manage a case, is
not required to apply the skill and care which could be applied by the
perfect ideal physician, for the reason that from the limitation of the
human intellect no perfect ideal physician exists in practice, and,
from the limitation of human endurance, no perfect ideal physician,
even if he existed, could watch a patient unintermittingly. But a
physician, when called upon to manage a case, is bound to exercise
the skill and vigilance which good and faithful physicians, under the
circumstances in which he is placed, would exercise. If called upon in
a country town, remote from the great centres of scientific activity,
to attend to an exceptional case which requires immediate action, he
is not liable if he does not employ those mechanisms which only a
residence in such a centre of scientific activity would enable him to
procure. On the other hand, a physician living in such a |61| centre
is liable for negligence, if, when called upon in such a case, he does
not use such mechanism, supposing its application to be advisable [133].
A physician and surgeon is bound to possess the ordinary skill,
learning and experience of his profession generally at the time in
similar localities, and with similar opportunities for experience [134].
A patient is entitled to the benefit of the increased knowledge of
the day. The physician or surgeon who assumes to exercise the healing
art is bound to be up to the improvements of the day. The standard of
ordinary skill is on the advance; and he who would not be found wanting
must apply himself with all diligence to the most accredited sources of
knowledge [135].
Sex is no excuse for negligence; there is no rule of law to the effect
that less care is required of a woman than a man. A lady physician
cannot as such claim any privilege of exemption from the care and
caution required of men, any more than a woman acting as a locomotive
engineer could be allowed to use less diligence to avoid mischief to
others than men must use. Male and female are governed by the same rule
in this respect: the rule of prudent regard for the rights of others
knows nothing of sex [136]. Inasmuch as gratuitous services are more
generally rendered by young and inexperienced physicians than by those
who are well established in their business, a presumption naturally
arises that one who renders such services is not possessed of great
skill, and was not supposed to be by the patient. This presumption may
be overcome by proof to the contrary; and the physician must be judged
by the |62| standard to which he led the patient to believe he had
attained; or, if he has done nothing to mislead his patient upon this
point, his responsibility will be measured by the degree of skill which
he is proved actually to possess [137].
It has been laid down in Maine, that physicians and surgeons who offer
themselves to the public as practitioners impliedly promise thereby
that they possess the requisite skill and knowledge to enable them to
heal such cases as they undertake with reasonable success; and that
this rule does not require the possession of the highest, or even the
average skill, knowledge and experience, but only such as will enable
them to treat the case understandingly and safely [138].
Considering how much the treatment of a case depends upon its varying
phases, which change as quickly as the shifting hues of the heavens, it
is hard for one medical man to come forward and condemn the treatment
of a brother in the profession, and to say he would have done this or
that, when probably, had he been in a position to judge of the case
from the first, he would have done no better [139].
If a physician does not bring to the treatment of an injury or of
a disease the ordinary amount of skill possessed by those in his
profession, it is immaterial how high his standing may be; if he has
skill and does not apply it he is guilty of negligence, and if he
does not have it then he is liable for the want of it. When a case of
alleged malpractice is before the court, the questions to be considered
are: Did the defendant possess the ordinary skill of persons acting as
medical men? If he did, was he chargeable in not applying it in the
treatment of the patient? Whether |63| he possessed greater skill,
or had been successful in the treatment of other patients, is wholly
immaterial. Where the point in issue is whether skill was applied in a
given case, the possession of skill without proof that it was applied
will be no defence [140].
The law punishes negligence no less than want of skill. It is
undoubtedly true that the physician is the best judge of the degree
of attention which any case requires. Nor is it in the omission to
make a given number of visits that negligence resides, but whenever
any important step in the treatment of disease is neglected, or any
important stage of it overlooked, which might have been used for the
benefit of the patient, then it may be averred that the physician has
been guilty of negligence, however assiduous he may otherwise have
been at different periods of his treatment. Skill and diligence may be
considered, therefore, as indissolubly associated, since skill judges
of the measure of diligence required and also furnishes the latter with
the eyes of observation and the hands of execution; while diligence on
her part gives cumulative power to skill, and leaves no link wanting
in the continuous train of treatment [141]. The measure of skill which
a physician is bound to exercise is not affected by his refusal of the
proffer of assistance from other medical men [142]. The Court said that
such a refusal is no more than an implied declaration of ability to
treat the case properly. By assuming and continuing the charge of the
patient, the physician is under an obligation to exercise a degree of
skill which is neither increased or diminished by such refusal.
In considering the skill and knowledge of a practitioner regard must
be had to the school to which he professes to |64| belong; and where
there is no particular system established or favoured by law, and no
system is prohibited, every physician is expected to practise according
to his professed and avowed system. A botanic physician is to be gauged
according to the botanic system, and a homœopathic physician by the
homœopathic system: so if a botanic doctor, or a homœopathist, is sued
for malpractice he may free himself from blame by showing that his
practice was according to the rules of the school which he professed
and was known to follow, and a departure from the received canons of
his system will be taken as a want of ordinary skill. But the jury is
not to judge by determining which school in their own view is best [143].
A sign or other proof that one actually practises physic or surgery
is _prima facie_ evidence of his professional character [144]. And
when a physician’s skill is at issue he may adduce evidence to prove
the existence of such general skill on his part, irrespective of the
particular case as to which the question arises; and he may show this
by the testimony of those in his profession who can speak from personal
knowledge of his practice [145].
The possession of a medical diploma is _prima facie_ of ordinary skill.
But of course it must be shown that the college from which it emanated
had authority to grant degrees in medicine [146].
If, in the absence of a medical man, a non-professional person is
called in to assist a person taken suddenly sick, such amateur is not
liable for special or slight negligence, |65| that is for the lack of
that diligence and skill belonging to a professed physician; but he
is liable for gross negligence (the _culpa lata_ of the Latinists),
that is, the lack of the diligence and skill belonging to ordinary
unprofessional persons of common sense; while, as we have seen, the
physician is liable for slight negligence (_culpa levis_), if he either
undertakes the case without the ordinary qualifications of a physician
under such circumstances, or manages it without the ordinary skill of
such a physician [147].
If a physician treats a patient without being requested so to do,
he is held to a more strict account than in ordinary cases. In one
instance, a medical man administered physic to a slave without the
owner’s consent, and the court held him responsible for all the evil
consequences which resulted [148]; and this rule is still more rigidly
enforced when the volunteer by his officiousness excludes a competent
practitioner who would have been otherwise obtainable. If one who is
not a regular medical practitioner professes to deal with the life and
health of others, he is bound to have and employ competent skill [149].
The mere fact that he renders his services gratuitously, or out of
charity, does not free the practitioner from all liability. But,
according to some authorities, the attendant in such cases is held to
a less strict accountability than when his services are based upon
an implied contract, and is liable only for gross negligence [150].
Amos, in his “Science of Law,” says, “The less the payment made in
return for diligence, the less the diligence that is expected; and if
no payment at all is made, as little diligence as possible is |66|
usually expected, though it may be that some is.” Wharton cannot accept
this doctrine from humane and other considerations [151]. And Ordronaux
says that it may be considered as a received principle of law that, a
physician, though rendering his services gratuitously, as in hospitals
or among the out-door poor, is bound to exhibit the same degree of
ordinary skill and diligence in the treatment of a patient as if he
were acting under the incentive of a consideration or prospective
reward. If he undertakes to execute the trust reposed in him, he is
bound to do it well, or else he may be compelled to respond in damages
to the party injured by his misfeasance. It is not the consideration
which constitutes the foundation of his responsibility, but the fact
that in voluntarily accepting the mandate, _spondet peritiam artis_,
indiscriminately to all. He cannot apportion medical skill or his
diligence to meet the prospective emoluments flowing out of any given
case [152].
In a criminal case, Denman, J., told the jury that it made no
difference whether a medical man was dealing with a patient or acting
as a volunteer, and dealing with a friend or with his own wife [153].
But Cockburn, C.J., in a case where a patient in a hospital sued two
surgeons for injury received from being scalded in a bath, in which
he had been placed by the nurses on the orders of the surgeons, said,
no doubt persons who went as patients into hospitals were not to be
treated with negligence; but, on the other hand, medical gentlemen
who gave their services gratuitously were not to be made liable for
negligence for which they were not personally responsible. The jury
gave a verdict in favour of the doctors [154].
If a sick man applies to one, not a physician, for |67| gratuitous
medical assistance, and this one either does not exert all his skill,
or administers improper medicine to the best of his ability, he is not
liable for damage [155].
The amount of prudence which a man must exercise in selecting a
physician, and the means to be cured, is the same that any prudent and
reasonable man would do in any other matter [156].
It is the duty of a patient to co-operate with his medical adviser, and
to conform to the necessary prescriptions; and if, under the pressure
of pain, he does not, or, if by refusing to adopt the remedies of the
physician, he frustrates the latter’s endeavours, or, if he aggravates
the case by his own misconduct, he cannot charge against the physician
the consequences due distinctively to himself; for no one can take
advantage of his own wrong. In such a case, even if the physician’s
treatment was objectionable, he can only recover nominal damages; and
if the injury was due to the patient’s fractiousness and disregard of
the doctor’s orders (the latter being judicious), no action at all will
lie [157].
In Ohio, it was held that, in an action for malpractice in the
treatment of a swollen ankle and diseased foot, the Judge had not erred
in saying to the jury, “If you find that the defendant directed the
plaintiff to observe absolute rest as a part of the treatment to his
foot, and that direction was such as a surgeon or physician of ordinary
skill would adopt or sanction, and the patient negligently failed to
observe such direction, or purposely disobeyed the same, and that such
negligence or disobedience approximately |68| contributed to the injury
of which he complains, he cannot recover in this action; although
he may prove that the defendant’s negligence and want of skill also
contributed to the injury. The injured party must not have contributed
at all.” The information given by a surgeon to his patient concerning
the nature of his malady is a circumstance that should be considered in
determining whether the patient, in disobeying the instructions of the
surgeon, was guilty of negligence or not [158].
The general doctrine of contributory negligence is this, that although
there may have been negligence on the part of the plaintiff, yet,
unless he might, by the exercise of ordinary care, have avoided the
consequence of the defendant’s negligence, he is entitled to recover;
if, by ordinary care, he might have avoided it, then he is the author
of his own wrong [159]. The rule is laid down in another case as
follows: If it be impossible to separate the injury occasioned by the
plaintiff from that occasioned by the neglect of the defendant, the
plaintiff cannot recover; if, however, they can be separated, for such
injury as the plaintiff may show thus preceded solely from the want of
ordinary skill or ordinary care of the defendant, he may recover [160].
The patient must exercise ordinary care and prudence; he is not bound
to observe the utmost possible caution. And the ordinary care required
has been defined to be that degree of care which persons of ordinary
care and prudence are accustomed to use and employ under similar
circumstances [161]. In fact the plaintiff must use his own senses [162].
Still, if he is rash and negligent, and yet the |69| physician has
been so very neglectful that ordinary care on the part of the patient
would not have prevented the unfortunate result, the plaintiff will be
entitled to recover damages [163]. So, where the doctor’s negligence is
the proximate cause of the injury, and that of the patient only the
remote cause [164]. And proximate does not mean the first or nearest in
order of time, but the first or nearest in order of cause [165].
It is to be remembered that a physician may be called to prescribe for
cases which originated in the carelessness of the patient; and though
such carelessness would remotely contribute to the injury sued for,
it would not relieve the physician from liability for his distinct
negligence and the separate injury occasioned thereby. The patient
may also, while he is under treatment, injure himself by his own
carelessness; yet he may recover of the physician, if he carelessly
or unskilfully treats him afterwards, and thus does him a distinct
injury [166]. The burden of proving that the plaintiff’s own negligence
contributed to the injury rests upon the defendant [167]. Evidence that
the patient requested the defendant to perform an operation, or do
an act, which caused the injury, does not tend to prove contributory
negligence, if the injury was not the natural result of such act
carefully performed [168].
If the patient is insane, and so incapable of co-operating with the
physician, contributory negligence is not imputable. And this inability
the physician is bound to take into account [169]. |70|
If the physician has injured the patient by his negligence, the
refusal of the patient, or his custodian, to allow an experiment,
by another physician, to repair the injury is not contributory
negligence, unless he had reasonable assurance of the success of the
experiment [170].
The practitioner is liable where a patient suffers from his want of
ordinary skill and diligence, even though the carelessness of those
nursing the patient may have aggravated the case and rendered the
ultimate condition of the patient worse than it otherwise would have
been. Although this carelessness in nursing may be proved in mitigation
of the damages sought against the physician, it will not serve to
bar the right of action [171]. And where two surgeons, who gave their
services gratuitously to the sick in a hospital, were sued by one
Perionowsky, for maltreatment there by causing him to be placed in a
bath so hot that he was scalded and injured, and it was proved that
the bath, though ordered by the defendants, was actually administered
by the nurses, and that the defendants were not present when it was
given, and that it was no part of their duty personally to superintend
such things. Cockburn, C.J., in summing up, told the jury that the
surgeons would not be liable for the neglect of the nurses unless near
enough to be aware of it and to prevent it [172]. And, in another case,
the court held that if a jury were to find that the parents of the
patient (a boy) were in charge of and nursed him during his sickness,
and that they did not obey the directions of the physician in regard to
the treatment and care of their son during such time, but disregarded
the same, and thereby contributed to the several injuries of which he
complains, he could not recover. If the injuries were |71| the result
of mutual and concurring neglect of the parties no action to recover
damages therefor will lie [173].
The medical man has ofttimes to sail between Scylla and Charybdis.
While, on the one hand, he is bound to consult the attainable
literature in his profession, and to diligently gather in, for every
case he undertakes to treat, the experience of his confreres—for in
determining what is negligence, the improvements that are constantly
taking place are always considered—at the same time he must not try new
modes or methods too readily, lest a Judge say of him, as one said in
a surgery case, “It appears from the evidence of the surgeons that it
was improper to disunite the callus without consent. This is the usage
and law of surgeons. Then it was ignorance and unskilfulness, in that
very particular, to do contrary to the rule of the profession what no
surgeon ought to have done. For anything that appears to the court,
this was the first experiment made with this new instrument; and, if
it was, it was a rash action, and he who acts rashly acts ignorantly;
and although the defendants (a surgeon and an apothecary), in general,
may be as skilful in their respective professions as any two gentlemen
in England, yet the court cannot help saying that, in this particular
case, they acted ignorantly and unskilfully, contrary to the known rule
and usage of surgeons;” (and they had to pay the plaintiff £500 for the
damage to his leg) [174]. Success is the only thing that justifies an
innovation either in politics or physic.
When it is proved that the physician has omitted altogether the
established mode of treatment, and has adopted one that has proved to
be injurious, evidence of skill, or of reputation for skill, is wholly
immaterial, except to show (what the law presumes) that he possesses
the ordinary |72| degree of skill of persons engaged in the same
profession. In such a case, it is of no consequence how much skill he
may have; he has demonstrated a want of it in the treatment of the
particular case.
The failure to use skill, if the surgeon has it, may be negligence; but
when the treatment adopted is not in accordance with the established
practice, but is positively injurious, the case is not one of
negligence, but of want of skill. If the case is a new one, the patient
must trust to the skill and experience of the surgeon he calls. So must
he if the injury or disease is attended with injury to other parts,
or other diseases have developed themselves, for which there is no
established mode of treatment. But when the case is one as to which a
system of treatment has been followed for a long time, there should be
no departure from it, unless the surgeon who does it is prepared to
take the risk of establishing by his success the propriety and safety
of his experiment. This rule protects the community against reckless
experiments, while it admits the adoption of new remedies and modes of
treatment only when their benefits have been demonstrated, or where,
from the necessity of the case, the surgeon or physician must be left
to the exercise of his own skill and experience [175].
Physicians are not bound to comply with the demands of the public; they
may accept or refuse a call: but having accepted, one must continue in
attendance upon the case until recovery, unless dismissed, or unless
he has withdrawn in a proper way. Even if his services are gratuitous,
he must continue them until reasonable time has been given to procure
other attendance.
A husband sued a medical man for neglecting to attend |73| his wife,
according to agreement, during childbirth, and the jury gave him a
verdict of $500; the court considered that the physician had broken his
contract and was liable therefor, but reduced the damages to a nominal
sum, as, in an action on contract, the husband could not recover for
the personal injury and sufferings of the wife [176].
If a physician at any time desires to withdraw from a case, he must
give such reasonable notice as will enable the patient to obtain
assistance elsewhere. He has a right to withdraw at any time,
especially with his patient’s consent, but if he insists upon that
assent as a shield from liability for any negligence of which he may
have been guilty, or for any malpractice committed, the patient may
show, if he can, that the consent was obtained by representations
that were false; and then the consent will be no protection against
liability for damage that had occurred before the consent was
given [177].
While it is quite competent for a physician and his patient to make
any agreement they think fit, limiting the attendance to a longer or
shorter period, or to a single visit; and while, if there is no such
limitation, the physician can discontinue his attendance at his own
pleasure, after giving reasonable notice of his intention to do so;
yet, if he is sent for at the time of an injury by one whose family
physician he has been for years, the effect of his responding to the
call will be an engagement to attend upon the case so long as it
requires attention, unless he gives notice to the contrary, or is
discharged by the patient; and he is bound to use ordinary care and
skill, not only in his attendance but in determining when it may be
safely and properly discontinued [178]. Ordronaux says a physician
cannot |74| abandon a case without due notice. To do so would
constitute negligence of a grave character, and render him answerable
for all injury sustained by the patient in consequence thereof. The
contract is for the performance of a service of indefinite duration,
and usually without stipulation for its continuance during any
particular period. It is plainly a fraud upon the employer to abandon
or neglect discharging the trust after having accepted it, for the
acceptance constitutes a promise, and a promise is a good foundation
upon which to rest a legal obligation. If the physician retires from
it, he can only do so by placing the employer in as good circumstances
as he found him, and by giving due notice of his intention [179].
A medical man is liable to a civil action for injury resulting to
a patient from his negligence or unskilful treatment, although the
patient neither employed nor was to pay him. As Baron Parke said:
“If an apothecary administers improper medicines to his patient, or
a surgeon unskilfully treats him, and thereby injures his health, he
will be liable to the patient, even where the father or friend of the
patient may have been the contracting party with the apothecary or
surgeon; for, though no such contract had been made, the apothecary,
if he gave improper medicines, or the surgeon, if he took him as a
patient and unskilfully treated him, would be liable to an action for
a misfeasance” [180]. And as Richards, C.B., said: “From the necessity
of the thing, the only person who can properly sustain an action for
damages for an injury done to the person of a patient, is the patient
himself, for damages could not be given on that account to any other
person, although the surgeon may have been retained and employed by
him to undertake the case” [181]; and in this same case, which was an
|75| action brought by a husband and a wife for an injury done to the
wife, Garrow, B., said; “In the practice of surgery, the public are
exposed to great risks from the number of ignorant persons professing
a knowledge of the art, without the least pretensions to the most
necessary qualifications, and they often inflict very serious injury
on those who are so unfortunate as to fall into their hands. In cases
of the most brutal inattention and neglect, the patients would be
precluded frequently from seeking damages by course of law, if it
were necessary to enable them to recover, that there should have been
a previous retainer, on their part, of the person professing to be
able to cure them. In all cases of surgeons retained by any public
establishments, it would happen that the patient would be without
redress, for it could hardly be expected that the governors of an
infirmary should bring an action against the surgeon employed by them
to attend the child of poor parents, who may have suffered from his
negligence and inattention” [182].
As in the case of an attorney, so with a physician, it is not every
mistake or misapprehension that will make him liable to an action for
negligence. There is scarcely a case in which a physician is called in,
in which he may not be charged with _culpa levissima_, or the omission
to ward off every possible casualty; and if _culpa levissima_ makes
him liable, then his liability becomes almost co-extensive with his
practice. He is only responsible for _culpa levis_ [183].
It must be remembered that the implied liability of a physician or
surgeon, retained to treat a case professionally, extends no further,
in the absence of a special agreement, than that he will indemnify his
patient against any injurious consequences resulting from his want of
the proper degree of skill, care or diligence, in the execution of his
|76| employment; and in an action against the surgeon for malpractice,
the plaintiff, if he shows no injury resulting from negligence or want
of skill in the defendant, will not be entitled to recover even nominal
damages [184].
The question whether the physician possessed adequate skill, and
exercised adequate care, is, in a case of malpractice, for the jury
to decide. Theoretically, and we may add, literally, the jury have
the unquestioned right to decide every controverted fact, even if its
decision may involve the most abstrusively difficult and uncertain
questions in the regions of scientific enquiry. But it is for the
Judge to determine whether there is or not such evidence as ought
reasonably to satisfy the jury that the fact sought to be proved is
established. As Lord Cairns once put it, “The Judge has to say whether
any facts have been established by evidence from which negligence _may
be reasonably inferred_, the jury have to say whether from these facts,
when submitted to them, _negligence ought to be inferred_.” It is for
the Judge to say whether the case should or should not be submitted
to the jury; and the rule is imperative that it should not be, unless
the evidence be such that therefrom the negligence charged may be
reasonably inferred [185].
Judges are generally desirous of impressing on juries the necessity of
construing everything in the most favourable way for the defendant,
when such actions are brought against a surgeon. “It is notorious
there are many cases in which jurors are not the most dispassionate or
most competent persons to try the rights of parties, and an action of
this kind (_i. e._, against a surgeon for malpractice) comes within
this class. In such actions the Judge should |77| firmly assume the
responsibility of determining himself whether sufficient evidence has
or has not been given to compel him to leave the case to the jury” [186].
Medical writers speak strongly against such actions. One says, “In
the majority of cases these actions are the direct offspring of envy,
hatred, malice and all uncharitableness, and when, rocked in the
cradle of calumny and nursed by the hand of speculation, injury is
often inflicted upon the character of the physician, who is at the
same time left without any proper remedy at law. The effect, also, of
such suits upon the public mind is apt to be pernicious, for success
in obtaining damages often stimulates others into a repetition of
the experiment, and the physician consequently practises his art
in chains, being perpetually exposed to the risk of a suit, which
may ruin his reputation as well as his fortune. It becomes lawyers,
therefore, to consider, when called upon to institute such suits, that
little value can be placed on the _ipse dixit_ of a layman sitting as
critic upon the professional conduct of a physician. And that, aside
from such personal delinquencies as drunkenness, or gross negligence,
cruelty towards, or abandonment of his patient, the field in which the
physician discharges his professional duties is practically _terra
incognita_ to the unlearned, and one where no lay critic can follow
him” [187].
The same critic points out that the majority of suits for malpractice
have been brought against surgeons and not against physicians.
“Failure is rarely excused in a surgeon. He is expected to be an
adroit medical carpenter who, with knife and saw and splint, can so
re-construct the fractured or disjointed members of the human body as
to leave no mark or line as evidence of their previous |78| disruption.
On the other hand, the physician, enshrined within the penetralia
of his mystic art, and mounted upon a Delphic tripod, inaccessible
to vulgar criticism, pronounces his diagnosis and formulizes his
prescriptions with unquestioned judgment. His diagnosis may be faulty,
his medicines ill-selected, or ill-timed in their administration, and
still no blame be incurred by him for any evil consequences that may
ensue. For who will presume to say, in case of the patient’s death,
that he had not naturally reached that last illness foreordained to
all men, and of which the physician’s unsuccessful treatment is only
official testimony? Who knows, in fact, when a man has reached his last
illness until he dies? * * * And, as a corollary to this, strange as it
may seem, one might, through unskilfulness, sacrifice a human life with
more impunity than he could mutilate or deform a toe or a finger” [188].
The question of the amount of damages for personal injuries arising
from malpractice is one resting a good deal in the discretion of the
jury, and must of necessity be more or less uncertain. The party must
recover all his damages, present and prospective, in one action.
If the damages are so excessive as to strike all mankind, at first
blush, as beyond all measure unreasonable and outrageous, and such as
manifestly show the jury to have been actuated by passion, partiality,
corruption, or prejudice, the court will grant a new trial. Sometimes,
however, courts have granted new trials for excessive damages where the
excessiveness has fallen short of this.
In considering what should be taken into account by a jury estimating
the amount of damages to be awarded, the American courts have held,
that the loss of time caused by the injury is to be considered [189].
Also, the age and |79| situation in life of the injured one,
the expenses incurred, the permanent effect upon the plaintiff’s
capacity to pursue his professional calling, or to support himself as
beforetimes, are essential factors [190].
Bodily pain, too, is to be considered and compensated for; and so much
of mental suffering as may be indivisibly connected with it; but mental
anguish and agony cannot be measured by money—the courts consider—and
there is no established rule authoritatively commanding such a futile
effort [191]. In fact, the courts say, that one should get compensation
for all the injuries that are the legal, direct, and necessary results
of the malpractice [192].
The late case of _Phillips_ v. _The South Western Railway Company_
fully enunciates what, in the estimation of the English Judges, are
to be considered in fixing the damages. Cockburn, C.J., said, that
the heads of damages were the bodily injuries sustained, the pain
undergone, the effect on the health of the sufferer, according to
its degree and its probable duration as likely to be temporary or
permanent, the expenses incidental to attempts to effect a cure,
and the pecuniary loss sustained through inability to attend to
a profession or business [193]. In the Court of Appeal, Bramwell,
L.J., remarked, “You must give the plaintiff a compensation for
his pecuniary loss, you must give him compensation for his pain and
bodily suffering. Of course, it is almost impossible to give an
injured man what can be strictly called compensation, but you must
take a reasonable view of the case, and must consider, under all the
circumstances, what is a fair amount to be awarded to |80| him” [194].
Phillips, who was a physician of middle age and robust health, making
£5,000 a year, was so injured by a railway company, that he was totally
unable to attend to his business; his life was a burden and a source of
utmost pain, and the probability was that he would never recover. The
jury gave him £16,000, and the court refused to consider it excessive.
A physician, who has received personal injuries, may recover damages
for loss of business as a physician, although he has not such a
degree as would entitle him to maintain an action for professional
services [195]. The value of the fees which he would have received
without suit may be estimated.
An action cannot be maintained against the representatives of a
deceased surgeon to recover damages arising from the unskilful
treatment of a patient. Such actions do not survive [196].
A medical practitioner who causes the death of a patient by such
malpractice or negligence as would have entitled the patient (if death
had not ensued) to maintain an action and recover damages against him
in respect of the injury sustained thereby, is liable to an action for
damages, notwithstanding the death of the patient, and although the
circumstances under which the death was caused amount to felony. Such
action may be brought for the benefit of the wife, husband, parent
and child of the deceased, and the jury may give such damages as they
may think proportioned to the injury resulting from such death to the
parties respectively for whom and for whose benefit such |81| action
is brought; but such injury must be a pecuniary loss, and the jury may
not give damages as a _solatium_ [197]. In some of the American cases
the mental anguish caused by the injury has been taken into account in
estimating the damages to be given [198].
Not more than one action, however, will lie for and in respect of
the same subject-matter of complaint, and every such action must be
commenced within twelve months after the death of the person injured.
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