keeping abreast with the advance in medical knowledge and science.18 A physician, though inexperienced and unlearned, may in some circumstances undertake an operation, and in such case he is bound only to use the best skill he has; for, as has been remarked,1 "many persons would be left to die if irregular surgeons were not allowed to practice." § 609. Test of skill. - None but the most general test of a physician's skill can be stated as rules of law. The great variance between the medical theories which find acceptance among different schools, each of which has its sincere and devoted adherents, and each being, in the estimation of its opponents, mere quackery, makes it impossible to assert, as a proposition of law, that any particular system affords an exclusive test of skill.20 Hence it becomes highly important to distinguish between what is universally recognized by intelligent opinion as quack 19 Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38 (1902); Gillette v. Tucker, 67 Ohio St. 106, 65 N. E. 865 (1903). See Whitesell v. Hill, 101 Iowa, 629, 66 N. W. 894, 70 N. W. 750, 37 L. R. A. 830 (1896). See note 12, § 606, ante. 19 Rex v. Van Butchell, 3 Carr. & P. 629; and see McCandless v. McWha, 22 Pa. St. 268. In Rex v. Simpson, 4 Carr. & P. 407, note, Bayley, B., said: "If a person not of a medical education, where professional aid might be obtained, undertakes to administer medicine which might have a dangerous effect, and thereby occasions death, such person is guilty of manslaughter." The text is quoted and approved in Gramm v. Boener, 56 Ind. 497. See Bolt v. Murray, 41 Hun, 638. 20 Thus, in Corsi v. Maretzek, 4 E. D. Smith, 1, it was held that a homeopathic physician stood upon an equality before the law with allo- ery on the one hand and the scientific schools of medicine on the other. A school of medicine must have a body of rules and principles, based on a scientific knowledge of the human body, by which all its members profess to be bound in diagnosis and treatment.21 But one who professes to adhere to a particular school must come up to its average standard, and must be judged by its tests, and by the light of the present day.22 Thus, a physician who should now practice the reckless and indiscriminate bleeding which was in high repute fifty years ago, or should shut up a patient in fever, and deny all cooling drinks, would doubtless find the old practice a poor excuse for his imbecility. So, if a professed homeopathist should violate all the canons of homeopathy, he would be bound to show some very good reason for his conduct, if it was attended with injurious effects. Upon many points of medical and surgical practice, all the schools are agreed; and indeed common sense and universal experience prescribed some invariable rules, to violate which may generally be called gross negligence.28 § 610. Character of disease may determine degree of skill. The state of health of the patient may have much weight in determining whether ordinary diligence and care have been used by the attending physician. What might be deemed ordinary care in some circumstances "Nelson v. Harrington, 72 Wis. be all that would be required of 591, 40 N. W. 228, 7 Am. St. Rep. him." But this was regarded as too 900, 1 L. R. A. 719 (1888); Grainger high a standard of professional duty, v. Still, 187 Mo. 197, 85 S. W. 1114, and a new trial was ordered (Stern 70 L. R. A. 49 (1905). See Mc- v. Lanng, 106 La. 738, 31 So. 303 Clarin v. Grenzfelder, 126 S. W. (1901); Martin v. Courteney, 75 (Mo. App.) 817 (1910); Wilkins v. Minn. 255, 77 N. W. 813 (1899); Brock, 81 Vt. 332, 70 Atl. 572 Spead v. Tomlinson, 73 N. H. 46, (1908). 59 Atl. 376, 68 L. R. A. 432 (1904). [Christian Science healer]). 22 In Simonds v. Henry, 39 Me. 155, the court charged the jury "that if the plaintiff exercised all the knowledge and skill to which the art at that time had advanced, that would 23 Thus a failure to remove the placenta after childbirth is highly culpable negligence (see Lynch v. Davis, 12 How. Pr. 323). would be gross negligence in others. A disease known to be rapid and dangerous will require a more instant and careful attention and application of remedies than one comparatively harmless, requiring only good nursing.24 § 611. Habits and tendencies of patient may determine degree of skill. - Aside from the manipulation of a fractured limb, a surgeon has to contend with very many powerful and hidden influences, such as the habits, hereditary tendencies, vital force, mental state and local circumstances of the patient. While, on the one hand, these will explain his ill success and moderate the degree of his responsibility, it would seem that he is bound to inform himself of these facts, so far at least as they would be likely to influence, in the management of the case, the conduct of a prudent physician. We should say, for example, that a physician about to administer an anæsthetic is bound to inform himself as to the condition of the patient's heart, lungs, or other organs, which, if diseased, would warn a prudent physician against the administration of that beneficent agency.25 § 612. Physicians not liable for errors of judgment. A physician, like an attorney, is not answerable in a given case for the errors of an enlightened judgment; 26 but 24 little, perhaps nothing, can be done hastily, it being a disease of the joints and muscular system, usually requiring a long course of treatment, giving to the attending physician full time to study his case and apply his means of cure." Dr. Elwell, in his work on Malpractice, p. 28, observes: "It undoubtedly requires a higher degree of skill for the successful and safe treatment of iritis than that required in rheumatism, because, in the former case, the most important and delicate structure of the system is involved, the parts of which when affected with an inflammation may 26 If he keeps within recognized and soon be destroyed, so rapid and dan- approved methods, he is not liable gerous is the disease, and unless for mere errors of judgment (Leightreated intelligently and with great ton v. Sargent, 27 N. H. 460; promptness, blindness quickly super- McClallen v. Adams, 19 Pick. 333; venes; while in rheumatism, but Du Bois v. Deckert, 130 N. Y. 325, 29 25 See Jones v. Fay, 4 Fost. & F. 525. also, like an attorney, he cannot interpose his judgment contrary to that which is settled. He must apply, without mistake, what is settled in his profession. He cannot try experiments with his patients to their injury." The pecu § 613. Duty of continuing in attendance. liar nature of the services which a medical man undertakes to render, often makes it his duty to continue them long after he would gladly cease to do so. He may, no doubt, decline absolutely to take charge of a case; 28 but, having once begun the task, he cannot abandon it as N. E. 313; Boldt v. Murray, 41 Hun, 638, 2 N. Y. State, 232; Wells v. World's Med. Asso., 9 N. Y. State, 452). But see Howard v. Grover, 28 Me. 97. In that case, the jury render a verdict against a surgeon for a large sum, "the alleged fault consisting in an error of judgment in not removing more of the limb." The court reduced the verdict merely; a decision we think not maintainable either upon principle or authority (see Twombly v. Leach, 11 Cush. 397). The defendant, a surgeon, was employed by a railway company to examine the plaintiff, who had sustained an injury in a collision on its line; and having done so, so far as he could, he told the plaintiff that they were so slight that he accepted a small sum in compensation. Held, that, even assuming his injuries were greater, there was no ground of action (Pimm v. Roper, 2 Fost. & F. 783). Plaintiff's attending physician, in good faith, but mistakenly, reported the case to the board of health as one of small-pox. Held, that the fact that defendants might have omitted to use ordinary skill in coming to their opinions would not render them liable for the involuntary removal of plaintiff, by the health inspector, to a small-pox hospital (Brown v. Purdy, 54 N. Y. Super. 109). Under laws N. Y. 1874, ch. 446, providing that no person shall be confined as a lunatic except on the sworn certificate of two physicians as to the fact of his insanity, made after personal examination, the physicians are liable for lack of ordinary care and prudence, and for failure to make due inquiry into the question of sanity, as their duties are not judicial (Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338). 27 Carpenter v. Blake, 60 Barb. 488; Tefft v. Wilcox, 6 Kans. 46; Patten v. Wiggin, 51 Me. 594; see Slater v. Baker, 2 Wils. 359; Rex v. Long, 4 Carr. & P. 423. Willful negligence must be proved in order to recover for it (Wenger v. Calder, 78 Ill. 275). An instruction that a departure from approved methods in general use, if it injures the patient, will render the physician liable, is not incorrect (Allen v. Voje, 114 Wis. 1, 89 N. W. 924 (1902). 28 A licensed physician is not liable for refusing to respond to a call (Hurley v. Eddingfield, 156 Ind. 416, 59 N. E. 1058, 83 Am. St. Rep. 198 (1901); Tomer v. Aiken, 126 Iowa, 114, 101 N. W. 769 (1904). freely. Even if his services are gratuitous, he must continue them until reasonable time has been given to procure other attendance; and, if he is not attending gratuitously, he has no right to desert a patient before the end of the illness which he undertook to treat, without reasonably cause.29 The propriety of this rule is obvious in some instances, and is easily demonstrable in all cases. Thus, no one can doubt that, even where his attendance was gratuitous, a surgeon could not be allowed to cut off a limb, and then leave the patient to stop the flow of blood as best he could; and this, although an extreme case, proves that there must be a rule adequate to secure justice for such a case. That a paid physician must continue his attendance, if desired, until the emergency which he was called to meet is past, seems to be not only reasonable in itself, but to be sustained by analogy from the rule which requires lawyers to conduct their clients causes to trial and judgment after they have once undertaken them. If personal attendance is no longer necessary, e. g., in the treatment of an injured limb, he should, if the case calls for it, give the patient instructions as to its care, and failure to do so is actionable negligence.1 § 614. Evidence of negligence and burden of proof. The plaintiff must affirmatively prove all the elements of "A physician's ordinary engagement is to attend to the case as long as it requires attention, and he must use reasonable care in determining when such attention is no longer required (Lawson v. Conaway, 37 W. Va. 159, 16 S. E. 564, 38 Am. St. Rep. 17, 18 L. R. A. 627 (1892). *See § 568, ante. In an action by a veterinary surgeon to recover for services in attending defendant's horse, proof that at the time of plaintiff's last visit the horse was very ill, and that plaintiff promised to call again early the next morn ing, but did not return at all, held sufficient to sustain a finding of negligence in treating the horse (Boom v. Reed, 69 Hun, 426, 23 N. Y. Supp. 421). After gelding a colt, defendant, a veterinary surgeon, was bound to give the colt such continued further attention, after the operation, as the necessity of the case required (Williams v. Gilman, 71 Me. 21). See Bemus v. Howard, 3 Watts, 255 [pleading]. 1 Beck v. German Klinik, 78 Iowa, 696, 43 N. W. 617. |
