Definition.—Malpractice may be defined to be—

1st. Wilful acts on the part of a physician or surgeon toward a person under his care, by which such person suffers death or injury;

2d. Acts forbidden by express statute, on the part of a physician or surgeon, toward a person under his care, by which such person suffers death or injury;

3d. Negligent acts on the part of a physician or surgeon in treating a patient, by means of which such patient suffers death or unnecessary injury.

These various divisions will be considered in the order in which they are above set forth.

Wilful Malpractice.—The cases which fall within the first two divisions of this definition are such acts as render the medical man liable to punishment in a criminal prosecution, and may not necessarily, although in some instances they may, constitute grounds of liability in a civil suit against him.

As examples of the first class of cases may be cited those instances, happily not numerous in the annals of the profession, where a physician or surgeon when treating a female patient has had carnal connection with her, representing that he was using that method of treating her to cure her disease. Such a case was Reg. v. Case, 1 Eng. Law & Eq., 544 (s. c., 1 Den. C. C., 580).[186]

Honest Intent no Defence in Such Cases.—In Reg. v. Reed, 1 Den. C. C., 377 (s. c., 2 Car. & K., 967), it was contended as a defence that the defendant really believed that he was curing his patient by treating her in this extraordinary way. The Court, per Wildes, C. J., brushed aside this contention with scorn, saying: “The notion that a medical man may lawfully adopt such a method of treatment is not to be tolerated in a court of justice;” and in this case and in others, convictions have been sustained for the crime of rape or of attempting to commit rape.[187]

Another example of wilful malpractice would be wilful neglect of a patient by his medical attendant, who became intoxicated voluntarily, though this will generally come under the second subdivision, as most states and countries have enacted statutes making it a criminal offence to practise medicine or surgery when intoxicated.

Acts Forbidden by Statute.—Within the second subdivision of the definition, or acts declared unlawful by statute, fall the cases of committing or attempting to commit an abortion, and cases of prescribing for or treating a patient by one voluntarily intoxicated. If the abortion is attempted without the knowledge or consent of the woman, and under the pretence of performing a necessary operation upon her to cure disease, undoubtedly the physician would be liable to a criminal prosecution by the State for the offence of committing an abortion and to civil action by her to recover damages. If the abortion was committed with her consent, while she would have no right of action against him for damages, he would be liable to criminal prosecution under the statute.

Abortion Not a Crime by the Common Law.—At common law it was not a crime to commit an abortion with the mother’s consent if the child had not quickened. In Mitchell v. Com., 78 Ky., 204 (s. c., 39 Am. Reports, 227), the Court, per Hines, J., says: “After a patient investigation we are forced to the conclusion that it was never called a punishable offence at common law to produce, with the consent of the mother, an abortion prior to the time when the mother became quick with child. It was not even murder at common law to take the life of the child at any period of gestation, even in the very act of delivery.” See also Evans v. People, 49 N. Y., 86.

The inhumanity and danger to society of this rule became manifest at a very early period, and both in England and in this country statutes were adopted, varying somewhat in the degree and kind of punishment and in the nomenclature of the crime, but all of them making the offence of committing an abortion, no matter at what stage of gestation, a crime.[188]

The Common-Law Doctrine Criticised.—Professor Elwell in his valuable work on “Malpractice, Medical Evidence and Insanity,” pp. 250, 251, makes the following remarks upon this subject: “The idea once existed quite generally, and it still exists to some extent, that there is no offence in destroying the embryo or foetus before there is a manifest knowledge of life by the mother, derived from motion of the child called ‘quickening.’ How absurd to suppose that there is no life until the mother can feel the muscular motions of the child! As well might we deny the vitality of the blood because it cannot be felt. The muscular tissues, and even the bones to which they are attached, must have some degree of substance before there can be motion, and of course this development depends upon life. Though this foolish notion is now fully exploded in medicine, it still lingers in the popular mind, and doubtless leads to much crime. The life of the foetus or embryo immediately after conception is just as positive physiologically as at any subsequent period. Quickening being an incident or sign in the course of development of the foetus, it indicates not the commencement of a new state of existence, but only a new manifestation of pre-existing life.... It is uncertain in its appearance, sometimes coming on at three months, sometimes at six months, and sometimes not at all.”

Legal Definitions of Terms, “Quick with Child,” etc.—In Evans v. People, 49 N. Y., 86, following R. v. Wycherly, 8 C. & P., 262, it was held that a woman is “quick with child” from the period of conception after the commencement of gestation, but is “pregnant with quick child” only when the child has become “quickened in the womb.” This distinction has been discussed in State v. Cooper, 2 Zab., N. J., 52, and since the Evans case, the same court in New York State has held that the expression, “woman with child,” means “pregnant woman.” Eckhardt v. People, 83 N. Y., 42 (s. c., 38 Am. Rep., 462).

Death of Child by Abortion.—If, in attempting to produce an abortion, the child is caused to be born alive but before the end of the period of gestation, and when it is not capable of sustaining life, and it dies, the person producing the abortion and bringing the child into the world at this time and in this manner is guilty of murder. Wharton’s Crim. Law, sec. 942; Rex. v. West, 2 Cox Crim. Cases, 500; Com. v. Brown, 14 Gray, Mass., 419.

Death of Mother by Abortion.—So also where in consequence of producing an abortion the death of the mother occurs, the person producing the abortion is guilty of murder at common law. 4 Blackstone’s Com., 201; 1 Bishop’s Crim. Law, 328. In some of the States, however, these offences are declared to be only manslaughter.

Further consideration of the subject of abortion will be had under that title in another part of this work.

Statutes Generally Except Abortions Necessary to Save Life.—It should be noted here, however, that nearly all the statutes which define and punish the crime of abortion, or the crime of manslaughter or murder committed in consequence of abortion, declare that when it is necessary to produce a miscarriage in order to save life, the act of doing so is excepted from the effect of the statute.

Negligent Malpractice.—Under the third subdivision of the definition, viz., when by reason of the negligent acts on the part of the physician or surgeon the patient suffers death or unnecessary injury, may be placed the most numerous cases of malpractice, according to the generally accepted meaning of the term.

Criminal Liability for Negligent Malpractice.—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. The general theory of the criminal law is based upon the doctrine that in order to constitute a crime there must be either an intent to do the wrong, or such a degree of negligence in the performance of a given act as to supply the place of the intent to do wrong, and require punishment for the protection of society, upon the ground that the carelessness of the defendant is so great as to make it necessary and proper to punish him, in order to deter others from following his example.

Doctrine of Leading Case of Com. v. Thompson.—In Com. v. Thompson (6 Mass., 134), Parsons, C. J., observes: “There was no evidence to induce the belief that the prisoner by his treatment intended to kill or injure the deceased and the ground of express malice must fall. It has been said that implied malice may be inferred from the rash and presumptuous conduct of the prisoner in administering such violent medicines. Before implied malice can be inferred, the judges must be satisfied that the prisoner by his treatment of his patient was wilfully regardless of his social duties, being determined on mischief.... To constitute manslaughter, the killing must have been the consequence of some unlawful act. Now there is no law which prohibits any man from prescribing for a sick person with his consent; and it is not a felony, if through his ignorance of the quality of the medicine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectations, should die. The death of a man killed by voluntarily following a medical prescription cannot be adjudged felony in the party prescribing unless he, however ignorant of medical science in general, had so much knowledge or probable information of the fatal tendency of the prescription that it may be reasonably presumed by the jury to be an act of wilful rashness at least, and not of honest intention and expectation to cure.”

The Doctrine of the Thompson Case Too Broad.—This lax statement of the law, made by the learned chief justice in this case, has been much doubted and criticised. It appears to be unsound in the length to which it goes in requiring, in order to constitute criminal liability, what may be termed excessive gross carelessness or wilful gross carelessness. It apparently runs counter to the prevailing opinions of the English judges, and to the later decisions of the courts in the United States, although it is followed and approved in Rice v. The State, 8 Mo., 561.

In Rex v. Long (4 Car. & P., 308-310), Park, J., said: “I call it acting wickedly when a man is grossly ignorant and yet affects to cure people, or when he is grossly inattentive to their safety.”

So in Rex v. Spiller (5 Car. & P., 353), the Court said: “If a person, whether a medical man or not, professes to deal with the life and health of another, he is bound to use competent skill and sufficient attention; and if he causes the death of another through gross want of either he will be guilty of manslaughter.”

Bishop, in his work on Criminal Law, lays down the rule that not every degree of carelessness renders a practitioner liable to criminal prosecution, and that it must be gross, or, as more strongly expressed, “the grossest ignorance or most criminal inattention.”[189]

Nevertheless he quotes with approval (2 Bishop Crim. Law, 264) the remark of Willes, J., that a medical man is taking a leap in the dark if he knew he was using medicines beyond his knowledge; and also the remarks of Bayley, J., in Rex v. Simpson (1 Lewin, 172), who said in that case: “I am clear that if a person not having a medical education, and in a place where a person of a medical education might be obtained, takes it upon himself to administer medicines which may have an injurious effect, and such medicines destroy the life of the person to whom they are administered, it is manslaughter. The party may not mean to cause death, or the medicine may produce beneficent effects, but he has no right to hazard medicine of a dangerous tendency when medical assistance can be obtained. If he does, he does it at his peril.”[190]

Gross Negligence Defined.—In general it may be stated that gross negligence is necessary to constitute criminal liability, but this may be predicated upon, or inferred from, such want of ordinary care and skill as shows gross ignorance, or such want of attention as indicates wilful disregard of the well-known laws of life and health.[191]

Gross Negligence Resulting in Injury a Misdemeanor.—It has also been held that although death does not but injury does ensue, as the result of gross negligence or inattention, that constitutes a misdemeanor punishable criminally.[192]

In Determining Degree of Negligence Circumstances and Conditions Govern.—It should be noted, however, that the circumstances and conditions attending the act of alleged criminal malpractice should be given much weight. So also should due weight be given to the advancement of knowledge and education in the world in general, and in the medical profession in particular. In an early English case, one of the judges remarked that not as much knowledge and skill could be expected of a surgeon or physician in a sparsely settled country district as in a city, and that he was at a loss to know what degree of knowledge and skill should be required of such a person. But in Gram v. Boener, 56 Ind., 447, Worden, J., said: “It seems to us that physicians or surgeons practising in small towns, or in poorly or sparsely settled country districts, are bound to possess and exercise at least the average degree of skill possessed and exercised by the profession in such localities generally. It is not true, as we think, to say that if a physician and surgeon has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practises, that would be sufficient. There might be but few practising in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them, and it would not do to say that because one possessed and exercised as much skill as the other, he could not be chargeable with the want of reasonable care and skill.”[193]

Unlicensed Practitioner Causing Death Guilty of Manslaughter.—Since the adoption by most civilized states and countries of the salutary practice of regulating by statute the practice of medicine and surgery, and forbidding persons not duly licensed from practising, and making it a misdemeanor to violate any of these statutes, it is clear that any person not having the requisite medical education and a license, who attempted to administer drugs and medicines or to perform operations, and through want of ordinary knowledge and skill caused the death of another, would be held guilty of manslaughter, because he brought about the death while he himself was engaged in a violation of the law. In some states where no discrimination in this respect is made between misdemeanors and felonies, the crime would be murder, punishable by death; and it has always been the law that an empiric or quack holding himself out as a regular physician is bound to have and exhibit the degree of skill and care which he professes, and will be strictly held to the standard of skill of educated and licensed medical men.[194]

As to the legal meaning of the term “ordinary care and skill,” and the rules of evidence applicable in cases of malpractice, a full discussion will be had below, when considering the subject of civil liability for malpractice.

Civil Liability for Malpractice.

Any person holding himself out to be a physician or surgeon, or any physician or surgeon, who is guilty of malpractice, is liable for damages, to be recovered in a civil action, instituted by the person injured, or by those having a legal right to such person’s services. This is so whether the injured person actually employed the defendant to prescribe or treat him, or not. The liability flows out of the relationship, without regard to the element of employment, and it may result from negligence in treatment, or in prescribing, or in giving information and instructions to the patient as to how to take care of himself when under treatment. The rules of law applicable to the duties of a physician to his patient are stated and the authorities supporting them cited in Chapter IV. of this work.[195]

Ordinary Care and Skill Only Required.—The leading cases in America on the subject of civil liability for malpractice are: Leighton v. Sargent, 7 N. H., 460, and Carpenter v. Blake, 60 Barb., 485 (s. c. on appeal, 75 N. Y., 12). In the former case the Court said: “In a science encumbered with so many sources of error and difficulties, it is obvious what cause we have for proceeding with the utmost caution, and for advancing from step to step with the greatest circumspection. It is in consideration of those peculiar difficulties that beset and encompass the physician and surgeon, that all enlightened courts have held that but ordinary care and skill shall be required of them, and that mere errors of judgment shall be overlooked, if the general character of treatment has been honest and intelligent, and that the result of the case shall not determine the amount of the responsibility to which he is held; and that when unskilfulness or negligent treatment of his patient is charged to a surgeon, it is not enough to show that he has not treated his patient in that mode or has not used measures which in the opinion of others, though medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as it goes to prove a want of reasonable skill and care for which he may be responsible. Alone it is not evidence of the latter, and therefore a party must go further and prove, by other evidence, that the defendant assumed the character and undertook to act as a physician without the education, knowledge, and skill which entitled him to act in that capacity.”

In Carpenter v. Blake, upon the last appeal (75 N. Y., 12), it was said that the reasonable ordinary care and diligence which the law requires of physicians and surgeons is that which persons engaged in the same general line of practice have and exercise in like cases.[196]

Story’s Statement of the Rule.—Story in his work on Bailments, p. 433, with his usual felicitous method of statement says: “In all cases where skill is required it is to be understood that it means ordinary skill in the business or employment which the bailee undertakes; for he is not presumed to undertake for extraordinary skill, which belongs to a few men only in his business or employment, or for extraordinary endowments or acquirements. Reasonable skill constitutes the measure of the engagement in regard to the thing undertaken.”

Occult Influences Should be Considered by Lawyers and Judges.—In this connection it should be borne in mind by lawyers and judges, that in the case of a physician treating disease, or a surgeon repairing an injury, occult influences frequently play a most important part. Professor Elwell in his work on Malpractice, etc., p. 25, lays great stress on this element of uncertainty. He says: “In the case of physicians, surgeons, attorneys, etc., another and important element besides skill enters into the result, and for this reason the degree of responsibility is to a certain extent and in a manner indicated and influenced. This important element is the operation of causes and influences over which the practitioner has but little or no control. They are occult, and no human foresight is able to anticipate them before they have completely deranged and materially interfered with his plans by bringing about a different result than that confidently depended upon.”[197]

Change and Advancement in Medical Knowledge also to be Considered.—It should on the other hand be clearly understood that the constant change and improvement which are going on in medical and surgical education, in the discovery of new remedies and new methods of treatment, and in the invention of new instruments, tend constantly to elevate the average skill and intelligence of the profession, and with them the standard by which the courts will determine liability for negligence. What would have been, but a few years ago, fully recognized by the courts as ordinary skill in the treatment of disease and the performance of operations, would now be regarded as antiquated and less than ordinary skill, because of the advancement in the knowledge of means which can be devoted to the treatment of disease and injury.[198]

We have already seen that what is the degree of skill to be required of one practising in a small town or a country district sparsely inhabited, and what is required in the case of a city practitioner, may differ to some extent with the circumstances. Quacks and pretenders, however, must be judged by the standard of regular practitioners.[199]

Degree of Care and Skill a Mixed Question of Law and Fact.—What constitutes reasonable care and skill is a mixed question of law and fact, like any other question of negligence. Where the evidence is undisputed and no conflicting inferences can be drawn from the facts presented, it is the duty of the Court to determine whether or not there is sufficient proof of want of ordinary care and skill to be submitted to the jury. Where, however, the evidence is conflicting on that point, or the inferences to be drawn from the facts established might be differently drawn by different men having the same opportunity for observation, and the same circumstances before them, it is for the jury to say whether or not the defendant has exercised reasonable care and skill, guided by proper directions from the Court as to the measure of skill required. This involves the question as to how far the practitioner is bound to be familiar with the methods, appliances, drugs, and methods of treatment of his profession in general.[200]

Experimentation Not Permissible.—Experimentation, whether upon charity patients or pay patients, is equally prohibited by well-settled rules of law. In other words, a departure from known methods of treatment for the purpose of or by way of trying unknown remedies, or operations not usually adopted by the profession, if an unfortunate result occurs, renders the defendant liable (McNevins v. Lowe, 40 Ill., 209).

Measure of Damages.

The measure of damages in cases of malpractice may vary with the kind of malpractice. In the case of wilful malpractice, the element of gross negligence justifies punitive or retaliatory damages, in those States where any such damages are allowed. That is, damages which will not only compensate for the injuries inflicted, but which will, by punishing the wrong done, tend to repress similar acts in the future. The tendency of the courts and of legal authority of the present time is, however, to limit as often as possible the cases in which punitive damages are allowed, upon the theory that if a grossly negligent act is committed it will require criminal prosecution, and that the strong arm of the State should be invoked to punish the wrong, rather than to line the pocket of the injured person.

On the other hand, in cases of malpractice, damages for want of ordinary care and skill are recompensed as in any other cases of negligence. They may include loss of time of the patient, inability to earn his living, such sum as the jury thinks is reasonable to be given as a compensation for the extra pain and suffering, and, where the injury is permanent, such further sum as will indemnify the patient for the injury or deformity which he may suffer on account of the defendant’s neglect. Citation of authority upon this question of damages is almost unnecessary.[201]

Liabilities of Partners, etc.—It has been held that where two physicians were partners, and one of them committed an act of negligent malpractice, both were liable in a civil court for damages.[202]

But the declarations of the partner who is guilty of the negligent act, made as to the act committed, and in the absence of the other partner, are not admissible as against the other partner. And so also is the rule as to declarations of the partner who committed the act after its commission as to the propriety of the treatment, and opinions expressed by him in reference thereto.[203]

It has also been held that one surgeon who recommends the employment of another during his absence from town is not liable for acts committed during his absence.[204]

Suits for Injuries to Married Women and Minor Children.—When the person injured is a married woman, her husband may sue for loss of services on account of malpractice, and when the injured person is a minor child the parent may sue as in any case of negligence. A third person, such as the husband of a woman injured by malpractice, or the father of minor child so injured, can only recover the value of the services thereby lost, and in some cases the enhanced expense of medical attention and nursing thereby rendered necessary.

Inspection of the Injured Person at the Trial—Before Trial Improper.—In an action in which the injury is to a portion of the body which may be seen, such as the shortening of a limb on account of improper treatment of a fracture, the limb may be exhibited to the jury.

It has been much discussed whether the defendant in a malpractice or other negligence case can compel the plaintiff to permit his person to be examined by physicians before trial, to enable the defendant to know the full extent of the injury so far as it is perceptible. In the latest cases the examination of plaintiff before trial was not allowed.[205]

In 1877 the Supreme Court of Iowa in the case of Schroder v. C., R. I. & P. R. R. Co., 47 Iowa, 375, held that the court had inherent power and jurisdiction to compel the plaintiff to submit to such an examination.

This decision has been followed by the courts of several of the western and southern States, while in others the power has been denied. These cases will be found fully collected in Roberts v. O. & L. C. R. Co. and in U. P. R. R. Co. v. Botsford cited above.

The ground of the decision of the United States Supreme Court and of the New York Court of Appeals seems to be, that in the absence of legislative provision permitting a court to order such an examination, it has no inherent power to do so, and did not derive any such powers from the common-law courts of England, which never had exercised such powers.

In some of the cases which deny the right to compel such examination, it is claimed that if such a statute was passed as would confer upon the courts power to compel such an examination, the statute would be unconstitutional, and much is said in those decisions about the sacredness and immunity of the person. It seems difficult, however, to understand why such statutes should be considered as differing in any respect from statutes permitting orders for the examination of witnesses and parties before trial, or for the discovery and inspection of books and papers, and the like, which statutes have been enacted for many years and have never been held to be unconstitutional. Surely an honest suitor having a just claim for damages for personal injuries would not object to such an examination, because the result would often strengthen his case, while a dishonest suitor having a false and unmeritorious claim ought to be exposed and have his false claims defeated, in the interests of justice and truth. On the other hand, a suitor who was honestly mistaken in his belief that he had been disfigured or injured by an act of malpractice might often discover his mistake, and be saved the annoyance and expense of defeat after a trial in open court.

Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened; when the fact is, as is conclusively shown by Prof. Frank H. Hamilton in a paper published by him many years ago, and quoted with approval by Professor Elwell, in his work on Malpractice, etc., that the percentage of cases, in certain kinds of fractures, in which perfect results are obtained by even the most eminent surgeons, is very small. In such cases as these the true state of affairs might often be disclosed by careful inspection prior to the trial. On the whole more good than harm would seem to be the probable outcome of permitting such examinations, in malpractice cases, if not in all cases of alleged personal injuries.

Evidence in Malpractice Cases.—The prevailing trial practice in malpractice cases is to prove the condition of the patient prior to the employment of defendant and at the time the treatment in question began, the methods of treatment adopted, and instructions given, and the condition of the patient during and after such treatment, and then to place other physicians on the witness-stand, and put to them hypothetical questions involving the facts as established by the evidence, and calling upon them to state whether the method of treatment adopted indicated proper skill and care, or even the usual and recognized methods of the profession.[206]

In some States evidence of the general reputation of the defendant for skilfulness or the contrary is held admissible. In other States such evidence is held inadmissible (see Vol. XIV., Am. and Eng. EncyclopÆdia of Law, p. 83, and cases collected in Note 6).

Contributory Negligence.—In conclusion it should be stated that the patient is bound to follow obediently all proper directions given him by his physician or surgeon, as to his diet, mode of life, time of taking and quantity of medicine to be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent. In short, the same rule as to contributory negligence applies in this as in any other case of negligence. This principle has been so long and so well settled that citation of authority in support of it is unnecessary.