reason and authority, is that, as it is the duty of the physician or surgeon to treat all whom he undertakes to serve with reasonable and ordinary care, skill and diligence, which, by holding himself out as such he professes to possess and promises to exercise, so too, though his treatment is gratuitous, his liability for negligence and malpractice are the same as in case of a pay patient. It should be added that a physician who is paid for his services in treating the poor without charge to them does not serve gratuitously, so as to affect his duty to exercise reasonable and ordinary care, skill and diligence in such treatment. Although a physician or surgeon may doubtless, by express contract, undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. A physician is not a warrantor or insurer of a cure, and is not to be tried by the result of his remedies.10 His only contract is to treat

8

Du Bois v. Decker, 130 N. Y. 325, 41 N. Y. Super. 638, 29 N. E. 313, 14 L. R. A. 429; Becker v. Janinski, infra; McNevins v. Lowe, 40 Ill. 209. Du Bois v. Decker, supra. See Leighton v. Sargent, 7 Foster, 648. A declaration that a physician and surgeon "undertook and promised to set, dress, take care of, and manage, as such physician and surgeon, said broken bone, in a proper, prudent and skillful manner," held not to allege a special undertaking to cure plaintiff, but only to use reasonable professional skill and attention to that end (Reynolds v. Graves, 3 Wis. 416).

skill. The fracture may be so complicated that no skill vouchsafed to man can restore original straightness and length; or the patient may, by willful disregard of the surgeon's directions, impair the effect of the best-contrived measures. He deals not with insensate matter, like the stonemason or bricklayer, who can choose their materials and adjust them according to mathematical lines; but he has a suffering human being to treat, a nervous system to tranquillize, and a will to regulate and control." See Carpenter v. Blake, 60 Barb. 488.

10 Hancke v. Hooper, 7 Carr. & P. 'Gallaher v. Thompson, Wright 81; McCandless v. McWha, 22 Pa. (Ohio), 466; McCandless v. McWha, St. 261. Proof that the surgeon gave 22 Pa. St. 261. In the last case, assurances to plaintiff that he posWoodward, J., said: "The implied sessed and would exercise extraordicontract of a physician or surgeon is not to cure-to restore a limb to its natural perfectness - but to treat the case with diligence and

[LAW OF NEG. VOL. I-102]

nary skill, and effect a cure, held not admissible, when not pleaded (Goodwin v. Herson, 65 Me. 223).

the case with reasonable diligence and skill. If more than this is expected, it must be expressly stipulated for. A physician is only liable for his own negligence, and not for that of another physician independently employed by the patient, though on his recommendation.11

§ 605. [Consolidated with § 604.]

§ 606. Degree of skill required. -The general rule, therefore, is, that a medical man is liable for such a want of ordinary care, diligence or skill upon his part as leads to the injury of his patient. To render him liable, it

12

977 [hospital physicians not liable for maltreatment by attendant in administering bath to patient ordered by them, they not being present or cognizant of it].

"Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389; Hitchcock v. Burgett, 38 Mich. 501. Defendant attended plaintiff for typhoid fever, and, as a result of the treatment, she recovered. While sick, plaintiff's 12 Lamphier v. Phipos, 8 Carr. & P. eye became affected, and she re- 475; Landon v. Humphrey, 9 Conn. quested defendant to send an oculist, 209; Wood v. Clapp, 4 Sneed, 65; which he promised, but neglected, to Carpenter v. Blake, 69 Barb. 488, 50 do. An oculist, who was afterwards N. Y. 696; Bellinger v. Craigue, 31 procured by another, stated that he Barb. 534; Briggs v. Taylor, 28 Vt. could do nothing, but that, if he 180; McNevins v. Lowe, 40 Ill. 209; were called sooner, he might have Ritchey v. West, 23 Id. 385; Barnes v. effected a cure. Held, not defend- Means, 82 Id. 379; Gramm v. Boener, ant's duty to provide the specialist, 56 Ind. 497; Tefft v. Wilcox, 6 Kans. and, as the evidence failed to show 46; Smothers v. Hanks, 34 Iowa, 286. that the injury to plaintiff's eye was In McCandless v. McWha, 22 Pa. the result of the fever, plaintiff was St. 261; Woodward, J., said, that hy properly nonsuited (Jones v. Vroom, reasonable skill and diligence the 8 Colo. App. 143, 45 Pac. 234). A court meant "such as thoroughly railroad company is not liable for educated surgeons ordinarily emany negligence of its surgeon, em- ploy." Where one holds himself ployed by it to treat gratuitously out to the public as a physician and its injured employees, in causing an surgeon, the law implies a promise injured employee to be moved from and duty on his part that he will use one place to another (York v. Chi- reasonable skill and diligence in the cago, etc. R. Co., 98 Iowa, 544, 67 treatment, and for the cure of those N. W. 574); s. P., Allan v. State S. S. who may employ him (Reynolds v. Co., 132 N. Y. 91, 30 N. E. 482 Graves, 3 Wis. 416; Patten v. Wig[ship's surgeon; giving poisonous gin, 51 Me. 594); Barney v. Pinkmedicine by mistake]). See Peri- ham, 29 Neb. 350, 45 N. W. 694, 26 onowsky v. Freeman, 4 Fost. & F. Am. St. Rep. 389 (1890); Mc

is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than even he himself might have bestowed; nor is it enough that he himself acknowledged 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.18

§ 607. He is bound to have skill. But a professed physician or surgeon is bound not only to use such skill as he has, but to have a reasonable degree of skill." The

law will not countenance quackery; and although the law does not require the most thorough education or the largest experience, it does require that an uneducated, ignorant man shall not, under the pretense of being a well qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations.15 If the practitioner, however, frankly informs the patient of his want of skill, or the patient is in some other way fully

geon." On a second trial, plaintiff a doctor's title to compensation that again obtained a verdict, which was a recovery of judgment for his seraffirmed, it being held not neces- vices necessarily involved a determisary that there should be proof of nation that he had used due care, so gross culpability on the part of a as to bar any action upon his neglisurgeon; that, having engaged in the gence; and this, notwithstanding all performance of services requiring defence on the ground of negligence skill and care, he is liable for a want was expressly waived in the action of the requisite skill or for an omis- brought by the doctor. Mullin, J., sion to exercise proper care, and that dissented; and, as it seems to us, one who offers himself for employ had the weight of reason upon his ment in a professional capacity un- side. A medical man is bound to takes: (1) That he possesses that have the ordinary skill and judg reasonable degree of learning and ment of members of his profession skill which is ordinarily possessed by (Hathorn v. Richmond, 48 Vt. 557; the professors of the same art and Barnes v. Means, 82 Ill. 379; Mcscience, and which is ordinarily re- Nevins v. Lowe, 40 Id. 210; Gates garded by the community, and by v. Fleischer, 67 Wis. 504, 30 N. W. those conversant with the employ- 674; Simonds v. Henry, 39 Me. 155; ment, as necessary to qualify him to Landon v. Humphrey, 9 Conn. 200; engage in such business. (2) That Small v. Howard, 128 Mass. 131). he will use reasonable and ordinary But he is not bound to have more care and diligence in the exercise of (Howard v. Grover, 28 Me. 97; his skill and the application of his Smothers v. Hanks, 34 Iowa, 286; knowledge to accomplish the pur- see Bowman v. Woods, 1 Greene pose for which he is employed. [Iowa], 441; Gallaher v. ThompThat he will use his best judgment son, Wright [Ohio], 466). An inin the exertion of his skill and the struction that a physician must exapplication of his diligence. S. P., ercise such skill as is ordinarily exerSmothers v. Hanks, 34 Iowa, 286; cised by educated physicians, withPatten v. Wiggin, 51 Me. 594; Smith out further defining it, is incorrect v. Dumond, 53 Hun, 637, 6 N. Y. (Hitchcock v. Burgett, 38 Mich. Supp. 242; Graves v. Santway, 52 501). See note 14, § 607, ante. Hun, 613, 6 N. Y. Supp. 892. In Bellinger v. Craigue, 31 Barb. 534, the obligation to use care and skill was held to be so essential a part of Wood v. Clapp, 4 Sneed, 65.

(3)

15 Long v. Morrison, 14 Ind. 595; Ritchey v. West, 23 Ill. 385; Fowler v. Sergeant, 1 Grant (Pa.), 355;

aware of it, the latter cannot complain of the lack of that which he knew did not exist.18

§ 608. Standard of skill not absolute. The standard of skill may vary according to circumstances, and may be different even in the same State or country. In country towns, and in unsettled portions of the country remote from cities, physicians, though well informed in theory, are but seldom called upon to perform difficult operations in surgery, and do not enjoy the greater opportunities of daily observation and practice which large cities afford. It would be unreasonable to exact from one in such circumstances that high degree of skill which an extensive and constant practice in hospitals or large cities would imply a physician to be possessed of." The rule is not such skill as is possessed by medical men in the same locality, for there may be none other, or not a sufficient number of competent physicians to set a standard; all may be quacks, and the law can in no case countenance quackery; but what is required is that he shall possess such skill as capable members of the profession ordinarily possess under similar circumstances, having regard to similar localities and the opportunities they afford for 16 A person not qualified as a regu- A charge that if, when defendant lar medical practitioner, but assum- was called, both parties understood ing to practice as such, and under- that he would treat plaintiff accordtaking to treat another for a disease, ing to the approved practice of clairis liable for injury caused by his voyant physicians, and if he did so ignorance (Ruddock v. Lowe, 4 Fost. treat him, with the ordinary skill and knowledge of the clairvoyant system, plaintiff could not recover, held, properly refused. Instead of was required to use only the degree the words, "With the ordinary skill of care and skill of the physicians and knowledge of the clairvoyant in his neighborhood is not ground system," the instructions should for reversal, there being evidence have read, "with the ordinary skill that there were other physicians in and knowledge of physicians in good the neighborhood presumably of standing, practicing in that vicin average ability, when compared with similar localities (Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561).

& F. 519).

17 An instruction that defendant

ity" (Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228). See Barton v. Govan, 116 N. Y. 658, 22 N. E. 556.