Whenever death ensues as the alleged consequence of malpractice it becomes necessary to inquire into the conduct of the physician, so as to determine how far his want of skill, or negligence, has conspired to produce it. The offence may, under certain circumstances indicating a wanton and malicious disregard of human life, amount to murder. Of course, a medical practitioner who should intentionally, and with malice, cause the death of a patient, would be held guilty of this crime; but in no case will an indictment for murder lie, unless there be a felonious destruction of life, with malice either express or implied. If a patient die from want of competent skill or sufficient attention the practitioner is guilty of manslaughter (199). “If one that is of the mystery of a physician take upon him the cure of a man, and giveth him such physic so as he dieth thereof, without any felonious intent and against his will, it is no homicide.” So saith my Lord Coke. Blackstone says, “This is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally.” On the one hand, we must be careful and most anxious to prevent people from tampering in physic so as to trifle with the life of man; and on the other hand, we must take care not to charge criminally a person who is of general skill because he has been unfortunate in a particular case. It is God who gives, man only administers, medicine; and the medicine "83" that the most skilful may administer may not be productive of the expected effect; but it would be a dreadful thing if a man were to be called in question, criminally, whenever he happened to miscarry in his practice. It would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck (200).

At one time it was held, that if one, not a regular physician or surgeon, should administer a medicine or perform an operation with a fatal effect, it would be manslaughter at the least; but long since, by Sir Matthew Hale, (one of the greatest Judges that ever adorned the English Bench), this doctrine was questioned (201). Now, however, both in England and America, it is well settled that it makes no difference whether the party be a regular practitioner or not; if he, bona fide and honestly exercising his best skill to cure a patient, performs an operation or administers a medicine which causes the patient’s death he is not guilty of manslaughter. “God forbid,” saith Lord Hale, “that any mischance of this kind should make a person not licensed, guilty of murder or manslaughter. This doctrine, that if any one dies under the hand of an unlicensed physician, it is felony, is apochryphal and fitted, I fear, to gratify and flatter doctors and licentiates in physic; though it may have its use, to make people cautious and wary how they take upon themselves too much, in this dangerous employment.” Hullock, B., remarked that it would be most dangerous for it to get abroad that if an operation should fail the surgeon would be liable to be prosecuted for manslaughter. And as to making a difference between regular and irregular practitioners the same learned Judge aptly put it, “in remote parts of the country many persons would be left to die if "84" irregular surgeons were not allowed to practise.” Or as another Judge put it, we should have many of the poorer sort of people die for want of help, lest their intended helpers might miscarry (202).

Lord Lyndhurst agrees with the rule, but makes an exception. He says, “I agree that in these cases there is no difference between a licensed physician or surgeon and a person acting as a physician or surgeon without a license. In either case if a party having a competent degree of skill and knowledge makes an accidental mistake in the treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person, totally ignorant of the science of medicine, takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter.” Webb, a publican, had given large doses of Morrison’s pills to one ill of small-pox (203).

“If any one, whether he be a regular or licensed medical man or not, professes to deal with the life or health of others, he is bound to have competent skill to perform the task that he holds himself out to perform, and he is bound to treat his patient with care, attention and assiduity;” and if the patient dies for want of either, the practitioner is guilty of manslaughter. “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill” (204). And if a medical man, though lawfully qualified to act as such, cause "85" the death of a person by the grossly unskilful or grossly incautious use of a dangerous instrument, he is guilty of manslaughter. No one is justified in making use of an instrument, in itself a dangerous one, unless he does so with a proper degree of skill and caution (205). There must be competent knowledge and care in dealing with a dangerous drug; if a man is ignorant of the nature of the drug he uses, or is guilty of gross want of care in its use, it would be criminal culpability (206). In Iowa, it was held that one assuming to act as a physician, who treats a patient in good faith and to the best of his ability, is not criminally responsible for the death of his patient, caused by the medicine he administers (207).

“To substantiate the charge of manslaughter, the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance, or the most criminal inattention; one or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter.” Thus Lord Ellenborough laid down the law in the case of a man midwife who was on his trial for murder by malpractice (208). Long since in the Mirror (209) it was said, “If physicians or chirurgeons take upon them a cure, and have no knowledge or skill therein, or if they have knowledge, if nevertheless they neglect the cure, or minister that which is cold for hot, or take little care thereof, or neglect due diligence therein, and especially in burning and cutting off members, which they are forbidden to do, but at the peril of their patient; if their patients die or lose their members, in such cases they are manslayers or mayhemdors.” Park, J., "86" charged the jury very similarly in one of St. John Long’s celebrated cases. “If,” said his Lordship, “you think there was gross ignorance or scandalous inattention in the conduct of the prisoner, then you will find him guilty; if you do not think so, then your verdict will be otherwise” (210).

Wharton considers that the position assumed by Lord Ellenborough depends upon the honesty and bona fides of the practitioner; and that if he is pursuing a plan of bold imposture the law would be otherwise (211).

In Long’s case, Baron Garrow said, “I make no distinction between the person who consults the most eminent physician and the cases of those whose necessities or whose folly may carry them into any other quarter. It matters not whether the individual consulted be the President of the College of Surgeons, or the humblest bone-setter of the village; but, be it one or the other, he ought to bring into the case ordinary skill and diligence. I am of opinion that if a person who has ever so much or so little skill sets my leg and does it as well as he can and does it badly, he is excused; but, suppose the person comes drunk, and gives me a tumbler full of laudanum, and sends me into the other world, is it not manslaughter? And why is that? Because I have a right to have reasonable care and caution.” In a subsequent case against the same practitioner, Bayley, B., said to the jury, “I have no hesitation in saying for your guidance, that if a man be guilty of gross neglect in attending to his patient after he has applied a remedy, or of gross rashness in the application of it, and death ensues in consequence, he will be liable to a conviction for manslaughter.” “I consider rashness will be sufficient to make it manslaughter. As, for instance, if I have the toothache, and a person undertakes to cure it by "87" administering laudanum, and says, ‘I have no notion how much will be sufficient,’ but gives one a cupful, which immediately kills; or if a person prescribing James’ powder says, ‘I have no notion how much should be taken,’ and yet gives one a tablespoonful, which has the same effect; such persons, acting with rashness, will, in my opinion, be guilty of manslaughter. A prosecution is for the public benefit, and the willingness of the patient cannot take away the offence against the public” (212).

The matter has been well put in a Missouri case. “If,” said the Judge, “the party prescribing has so much knowledge of the fatal tendency of the prescription that it may reasonably be presumed that he administered the medicine from an obstinate and wilful rashness, and not from an honest intention and expectation of effecting a cure, he is guilty of manslaughter at least, though he might not have intended any bodily harm to the patient” (213). It is the presence of intention which determines the moral complexion of an action, and whenever this intention (always presumed to be good) is proved to be bad, then, and then only, does a physician become criminally responsible for his wrongdoings. Doubtless, a bad intention may be at times inferred from the character of the misconduct; and neglect, particularly when gross, may be classed among those reasons which justify such an inference (214).

What the law deems gross negligence has been thus defined in a case where a “Herbalist” was on trial for manslaughter, for the death of a patient through an overdose of colchium seeds and brandy for a cold. “Gross negligence might be of two kinds; in one sense, where a man, for instance, went hunting, and neglected his patient, "88" who died in consequence. Another sort of gross negligence consisted in rashness, where a person was not sufficiently skilled in dealing with dangerous medicines which should be carefully used, of the properties of which he was ignorant, or how to administer a proper dose. A person who, with ignorant rashness, and without skill in his profession, used such a dangerous medicine, acted with gross negligence. It was not, however, every slip that a man might make that rendered him liable to a criminal investigation. It must be a substantial thing. If a man knew that he was using medicines beyond his knowledge and was meddling with things above his reach, that was culpable rashness. Negligence might consist in using medicines in the use of which care was required, and of the properties of which the person using them was ignorant. A person who so took a leap in the dark in the administration of medicines, was guilty of gross negligence. If a man was wounded and another man applied to his wound sulphuric acid, or something which was of a dangerous nature, and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable, and not the person who inflicted the wound, because a new cause had supervened. But, if the person who dressed the wound applied a proper remedy, then, if a fatal result ensued, he who inflicted the wound remained liable.” In these words Willes, J., charged the jury, and they, after a long deliberation, brought in a verdict of “not guilty” (215). And in the very recent case of State v. Hardister (216), it was held that a physician is criminally liable for his gross ignorance causing the death of his patient, but not for a mere mistake of judgment.

However, in the celebrated case against the father and founder of the botanic or steam system of medicine, whose "89" favorite remedies were coffee, “well-my-gristle,” and “ram cats,” it was held, that if a person assuming to be a physician, through gross ignorance, but honestly and bona fide, administers medicine which causes the death of the patient, he is not guilty of manslaughter (217). This was in the year 1809; and the doctrine laid down was followed in 1844 in Missouri in an exactly similar case (218). And quite recently in Iowa, where one Shulz was tried for manslaughter because his patient died under the Baunscheidt practice, i. e., pricking the body and rubbing in a certain kind of oil, the Court on review said: “In 2 Bishop’s Criminal Law, (4th Ed.) sec. 695, the law upon this subject is declared as follows: ‘From the relationship of physician and patient the death of the latter not unfrequently arises. On this subject the doctrine seems to have been held that whenever one undertakes to cure another of disease or to perform on him a surgical operation, he renders himself thereby liable to the criminal law, if he does not carry to his duty some degree of skill, though what degree may not be clear; consequently, if the patient dies through his ill-treatment, he is indictable for manslaughter. On the other hand, a more humane doctrine is laid down, that since it is lawful and commendable for one to cure another, if he undertakes this office in good faith and adopts the treatment he deems best, he is not liable to be adjudged a felon, though the treatment should be erroneous, and in the eyes of those who assume to know all about this subject, which in truth is understood by no mortal, grossly wrong, and though he is a person called, by those who deem themselves wise, grossly ignorant of medicine and surgery. The former doctrine seems to be the English one, and so in England a person, whether a licensed medical practitioner or not, who undertakes to deal with the life or health of "90" people, is bound to have competent skill or suffer criminally for the defect. Now, if a man thinks he has competent skill, and makes no mis­rep­re­sen­ta­tion to his patients concerning the amount or kind of medical education actually received by himself, he seems in reason to stand on exactly the foundation occupied by every person who honestly undertakes medical practice after full advantages, so far as concerns his state of mind, and it is the mind to which we look in questions of legal guilt. Any person undertaking a cure, but being grossly careless and thus producing death, is for a different reason liable to a charge of manslaughter, whether he is a licensed practitioner or not.’ These cases seem to us to announce a correct rule. The interests of society will be subserved by holding a physician civilly liable in damages for the consequences of his ignorance, without imposing upon him criminal liability when he acts with good motives and honest intentions” (219).

If the death of a man has been accelerated by the want of due skill and competency, or by the carelessness, of his physician, the latter cannot defend himself by proving that his patient was afflicted with a mortal disease (220). If a man who has received a serious wound is placed under the charge of a surgeon who, in probing the wound or otherwise operating on the patient, immediately causes his death; then, if the surgeon has acted negligently, or maliciously, he is indictable for the homicide, and the original assailant only for an attempt. But, if the surgeon using due skill and care occasions death while he is endeavouring to heal the wound, then he who inflicted the wound is chargeable with the death; for he who does an unlawful act is responsible for all the consequences that in the ordinary course of events flow from it. It is an ordinary consequence of a wound that a surgeon should be called in to attend to it, "91" and it is a necessary incident of surgery that patients should die under the knife. It is no defence, where a death is not shewn to have been produced by the medical attendant’s negligence, that the deceased might have recovered if a higher degree of professional skill had been employed (221).

If a person is assailed by a fatal disease, and there is no escape from it, save by a dangerous surgical operation, then, if he gives his free and intelligent consent to the operation, and it is skilfully performed, the surgeon cannot be blamed even though the patient perish under the knife. The German Jurists go still further and say, suppose a dangerous operation is required as the last hope of resuscitating an unconscious person; if the operation is performed with the skill usual to surgeons under such circumstances, and death ensue, the surgeon is blameless (222). If a woman is in such a state of labor that her life can only be preserved by the sacrifice of that of the child, then it is not only the right but the duty of the attendant to save the mother at the expense of the babe. Wharton says that this position is indisputable (223).

From the leading cases the following propositions may be extracted, say Wharton and StillÈ, sec. 1063.

1. If the defendant acted honestly and used his best skill to cure, and it does not appear that he thrust himself in the place of a competent person, it makes no difference whether he was at the time a regular physician or surgeon, or not.

2. To constitute guilt, gross ignorance or negligence must be proved. "92"

3. A defendant who, with competent knowledge, makes a mistake in a remedy is not answerable, but it is otherwise when a violent remedy, shewn to have occasioned death, is administered by a person grossly ignorant but with average capacity, in which case malice is presumed in the same way that it is presumed when a man compos mentis lets loose a mad bull into a thoroughfare, or casts down a log of wood on a crowd.

4. Where competent medical aid can be had, the application of violent remedies by an ignorant person, though with the best motives, involves him in criminal responsibility.

5. Express malice, or an intent to commit a personal or social wrong, makes the practitioner criminally responsible in all cases of mischief.

These well known writers say, that according to Caspar and BÖcker, in the treatment of internal diseases, the physician can never be held guilty of criminal carelessness for failing to use any particular remedy, since there is never any remedy upon which all authorities are agreed, and since it is always possible the patient may recover without the use of such remedy (224).