R. Vashon Rogers

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 homoeopathic physician by the homoeopathic system: so if a botanic doctor, or a homoeopathist, 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.