PREFACE.

The idea that in the library of nearly every practitioner in the professions of both Physic and Law there has been for some time a small gap among the books, which could be filled by a little work like this now submitted, has induced the author to prepare and publish the following pages.

While it is hoped that this little work will prove of use to the members of the Legal and Medical Professions, it is intended to be suggestive rather than exhaustive—a primer not an encyclopædia; and it is not expected that it will obviate the necessity for frequent conferences between physicians and lawyers whenever, in the practice of either, questions arise requiring the experience of the other.

In most cases the very words of the judges and reporters have been used, and if any expressions are noticed that may be deemed over strong it will be found that they are the words of others: the author’s aim has been rather to act as an humble compiler and citer of cases, than to obtrude opinions or theories of his own.

Brief chapters on Dentists and Druggists have been given because of the intimate connection between these gentlemen and the members of the medical profession.

With great diffidence this book is committed to the tender mercies of the critics of these two learned professions—to those who can so effectually wield the pen, the tongue and the scalpel.

R. V. B., JR.

Kingston, Ont., November, 1884.

CHAPTER I.

EARLY PRACTITIONERS AND LAWS.

The first medical practitioners in England, of whom we have any record, were the Druids: these philosophers, theologians and soothsayers, also practised medicine and surgery, and were skilled in anatomy and physic. To add to the veneration in which they were held, to impress the ignorant masses with the idea that they had power with the gods and could prevail, and perhaps to cultivate a belief in the efficacy of the remedies provided, they mingled incantations and charms with their medicaments and nostrums. Their panacea was the mistletoe, cut from the sacred oak, with a consecrated hook of gold held in holy hands, on a mysterious night when the propitious beams of the waxing moon fell upon it; wrapped for a while in a sanctified cloth and treasured up in the holy of holies of the woodland god, this strange parasitic growth was deemed possessed of many virtues and was named All-heal. Two other herbs, the selago and samolus were also in those days highly valued for their medicinal efficacy.

To every healing herb a divinity was assigned by the Druids, and the good gods were ever ready to help suffering humanity against the evil genii who presided over the poisonous and unwholesome.

These priests also considered the creeping through tolmens (or perforated stones) good for many diseases. Their best charm, however, was the anguineum, or snake’s egg, produced (’tis said) from the saliva and frothy sweat of a cluster of snakes writhing in a tangled mass, tossed in the air by the fierce hissings of the serpents, and caught ere it fell to the ground in a clean white cloth. A genuine egg, though encased in gold, would float against a running stream and do many another marvel. The Druid seems to have been a herbalist, a believer in the faith or prayer cure, as well as a homœopathist, for in taking the diseased plant, the mistletoe, to cure diseases he anticipated the doctrine of similia similibus curantur.

Even in those old days, according to Tacitus, there were female physicians who competed with the practitioners of the other sex. The wives of the Druids exercised the calling of sorceresses, causing considerable evil by their witchcrafts, but caring for warriors wounded in battle. Later on women seem to have enjoyed a pre-eminence as physicians and surgeons in England. Thus are we told that a "Mayd" treated a wounded "Squyre,"

Meekely shee bowed downe, to weete if life

Yett in his frosen members did remaine;

And, feeling by his pulses beating rife

That the weake sowle her seat did yett retaine,

Shee cast to comfort him with busy paine.

Into the woods thenceforth in haste shee went,

To seeke for herbes that mote him remedy;

For she of herbes had great intendiment.

There, whether yt divine tobacco were,

Or panachæa, or polygony,

Shee fownd, and brought it to her patient deare,

Who al this while lay bleding out his hart blood neare.

The soveraine weede betwixt two marbles plaine

Shee pownded small, and did in peeces bruze;

And then atweene her lilly handes twaine

Into his wound the juice thereof did scruze;

And round about, as she could well it uze,

The flesh therewith she suppled, and did steepe

T’abate all spasme and soke the swelling bruze;

And, after having searcht the intuse deepe,

She with her scarf did bind the wound from cold to keep.

Of fair Nicolette we read—

Her strength alone

Thrust deftly back the dislocated bone;

Then culling various herbs of virtue tried,

While her white smock the needful bands supplied,

With many a coil the limb she swathed around,

And nature’s strength returned.

Chirurgery, or surgery—that is manual application—appears to have been the earliest branch of the healing art. We are told of a wonderful cure effected upon Queen Elgiva, whose beauteous face had been mutilated by the brutal clergy. Many superstitious practices were in the early days mingled with the operations of the surgeons, as well as of the physicians. History speaks of a man the muscles of whose legs were drawn up and contracted so as to defy all the skill of the surgeons, until an angel advised wheat flour to be boiled in milk, and the limb to be poulticed with it while warm; then all was well.

From the tenth to the twelfth century the practice of medicine and surgery, in England, was almost exclusively in the hands of the monks and clergy. So lucrative did they find it that many of the monks devoted themselves entirely to it, to the utter neglect of their religious duties. This the authorities of the church disapproved of, and made many attempts to restrain. At last, in 1163, it was enacted by the Council of Tours that no clergyman or monk should undertake any bloody operation. From that time the clerics confined themselves to prescribing medicines, and the practice of surgery naturally fell into the hands of the barbers and smiths, who had previously been employed as assistants and dressers to the ecclesiastical operators.

The smiths soon found that most of the business was absorbed by the barbers: the latter kept little shops for cutting hair, shaving, bathing and curing the wounded, especially about the royal palaces and the houses of the great: the shops were marked by a striped pole and a basin, symbols that all the king’s subjects might know where to apply in time of need; (the fillet around the pole indicating the ribbon for bandaging the arm in bleeding, and the basin the vessel to receive the blood). The barbers became so important that in 1461 the freemen of "The Mystery of Barbers, using the mystery or faculty of Surgery," obtained a charter from Edward IV., and were incorporated under the name of "The Company of Barbers in London," and none were allowed to practise save those admitted by the company. Although this charter was several times confirmed by subsequent kings, yet side by side with the regular barber-surgeons there grew up a body of men who practised pure surgery, and who actually formed a company, called "The Surgeons of London." In 1540, by Act of Parliament, these rival companies were united and named "The Masters, or Governors, of the Mystery and Commonalty of the Barbers and Surgeons of London."

The third section of this Act, after reciting that persons using the mystery of surgery oftentimes meddled and took into their cure and houses people infected with pestilence, great pox, and other contagious infirmities, and also used or exercised barbery, as washing, or shaving, or other feats thereto belonging, "which was very perilous for infecting the King’s liege people resorting to their shops and houses and there being washed and shaven," enacted "that no manner of person within the City of London, suburbs of the same and one mile compass of said City of London, after the feast of the Nativity of Our Lord God then next coming, using barbery or shaving, or that hereafter shall use barbery or shaving within the said city, etc., he nor they, nor none of them, to his, her, or their use, shall occupy any surgery, letting of blood, or any other thing belonging to surgery, drawing of teeth only excepted; and furthermore, in like manner, whosoever that useth the mystery or craft of surgery within the circuit aforesaid, as long as he shall fortune to use the said mystery or craft of surgery, shall in nowise occupy nor exercise the feat or craft of barbery or shaving, neither by himself, nor by one other for him, to his or their use; and moreover, that all manner of persons using surgery for the time being, as well freemen as foreigners, aliens and strangers within the circuit aforesaid, before the feast of St. Michael the Archangel, next coming, shall have an open sign on the street side where they shall fortune to dwell, that all the King’s liege people there passing by may know at all times whither to resort for remedies in time of necessity."

In 1745 this union of barbers and surgeons was dissolved; or, apparently, the surgeons ousting the barbers, received a new name and all the privileges of the old company, with the exclusive right to practise within London and for seven miles around. In 1800 the Surgeons’ Company was called "The Royal College of Surgeons, in London;" and this, in 1843, was changed to that of "The Royal College of Surgeons of England."

In Scotland, at a very early day, the chirurgeons and barbers were united, and enjoyed many rights and privileges. In 1505 the "craftes of Surregeury and Barbouris" were formed into a college or corporation, by the town council of Edinburgh, and became one of the fourteen incorporated trades of the city. George the Third erected this corporation into a Royal College, and now it is known as "The Royal College of Surgeons of Edinburgh." In 1599, James VI., "to avoid the inconvenience caused by ignorant, unskilled, and unlearned persons, who, under the colour of chirurgeons, are in the habit of abusing the people to their pleasure, and of destroying thereby infinite numbers of his Majesty’s subjects," incorporated the faculty of Physicians and Surgeons of Glasgow; and gave them jurisdiction over the City of Glasgow and the adjoining counties. A recent Act of Parliament has very much shorn the privileges of this faculty.

In Ireland, the "Fraternity of Barbers and Chirurgeons of the Guild of S. Mary Magdalene" was incorporated by Henry II. The apothecaries belonged to this body until 1745, when, with the aid of a statute, they set up for themselves, as "The Guild of S. Luke," or "The worshipful Company of Apothecaries." In 1784 the regularly educated surgeons of Dublin became incorporated under the name of "The Royal College of Surgeons in Ireland."

In the twelfth century medicine seems to have been first studied as a science in England. The Universities enacted that none should practise physic without passing through a certain course of study. In the fourteenth century the degree of Doctor of Physic was by no means uncommon. For many years physicians were greatly aided in chemistry and medical science by the discoveries of alchemists, and the search after the philosopher’s stone and the elixir of life gave many useful hints to practitioners. Chaucer well describes a "Doctour of Phisike," in the Prologue to the Canterbury Tales, and gives an insight into the state of medical knowledge in the fourteenth century.

He was grounded in astronomie.

He kept his patient a ful gret del

In houres by his magike naturel.

He knew the cause of every maladie,

Were it of cold, or hote, or moist, or drie,

And when engendred, and of what humour.

He was a veray parfite practisour.

The cause yknowe, and of his harm the rote,

Anon he gave to the sike man his bote.

Ful redy hadde he his apothecaries

To send him dragges, and his lettuaries,

For eche of hem made other for to winne:

His frendship n' as not newe to beginne.

Wel knew he the old Esculapius,

And Dioscorides, and eke Rufus;

Old Hippocras, Hali, and Gallien;

Serapion, Rasis and Avicen;

Averrois, Damascene and Constantin,

Bernard, and Gatisden and Gilbertin.

Of his diete mesurable was he,

For it was of no superfluitee,

But of gret nourishing and digestible.

His studie was but litel on the Bible.

In 1421, under Henry V., an Act was prepared, providing that "no one shall use the mysterie of fysyk, unless he hath studied it at some university, and is at least a bachelor in that science. And saying, the sheriff shall inquire whether any one practises in his county contrary to this regulation; and if any one so practise fysyk he shall forfeit £40 and be imprisoned: and any woman who shall practise fysyk shall incur the same penalty." But this appears never to have become law.

It was not, however, until the beginning of the sixteenth century that modern British medical practice may be said to have commenced. And in 1511 was passed the first statute for regulating the medical profession. From the preamble of this Act we learn that physic and surgery were then practised by "ignorant persons, who could tell no letters on the book, and by common artificers, smiths, weavers, and women, who took upon themselves great cures, partly using sorcery and witchcraft, partly applying very noxious medicines to the disease."

Many years after this, however, were to be found those who though not "ignorant persons" approved of what would now be called sorcery, witchcraft and noxious medicines. Bacon gives the following as infallible cures for the whooping-cough: let a pie-bald horse breathe on the patient: give him fried mice, three a day for three days in succession: pass the sick person nine times under the belly and over the back of a donkey: feed the patient on currant cake made by a woman who did not change her name when she was married: or, hold a toad in the mouth that it may catch the disease. Burton, the Anatomist, says that an amulet consisting of a spider in a nut-shell, lapped with silk, is a cure for ague. Graham, in his "Domestic Medicine," prescribes spider’s webs for ague and intermittent fevers.

By the statute of Henry the profession was for the first time divided into physicians, surgeons and apothecaries: a division still kept up in England. It also enacts, under a penalty, that "no physician or surgeon shall practise in London, or within seven miles of it, without examination by the Bishop of London, or the Dean of St. Paul’s, and four doctors of physic; nor out of the city, or precinct, but if he be first examined and approved by the bishop of the diocese, or his vicar-general, calling to them such expert persons in the same faculty as their discretion shall think convenient." Fancy a D.D. sitting in judgment on an M.D. How orthodox and regular in his attendance at church would the latter have to be! However, 14 & 15 Henry VIII. cap. 5, vests this power of examination in the President and Elects of the College of Physicians of London. This Royal College was founded in 1518 by letters patent from the king. Power was given to it to make laws for the government of all men of the faculty of physic in London and within seven miles, and for the correction of the physicians within those limits and their medicines: and none could practise within those limits without a license. Shortly after an Act of Parliament confirmed this patent so that none could practise in England without the license of the college, save graduates of Oxford and Cambridge. Subsequently Fellows of the college were given power, together with the warden of the Apothecaries’ Society, to enter the houses of apothecaries in London, to examine their wares, drugs and stuffs, and to burn and destroy those that were defective.

In 1560, by 32 Henry VIII. cap. 40, surgery was declared a part of physic, and the practice thereof was thrown open to all of the company or fellowship of physicians throughout the realm. Not long afterwards the Parliament of this reforming king seems to have changed its mind and made a move in the direction of free-trade in physic, and by 34 & 35 Henry VIII. cap. 8, any man or woman was permitted to practise to a limited extent. We fancy we can trace the influence of the sturdy king in the provisions of this Act, which was entitled, "An Act that persons being no common surgeons may administer outward medicines notwithstanding the statute;" the statute after referring to the Act passed in the third year of the king’s reign (which imposed penalties upon those who should practise as physicians or surgeons without being examined and admitted) goes on to say, "Sithence the making of which said Act (that of 3 Henry VIII.) the company and fellowships of surgeons of London, minding only their own lucres, and nothing the profit or ease of the diseased or patient, have sued, troubled and vexed divers honest persons, as well men as women, whom God hath endued with the knowledge of the nature, kind and operation of certain herbs, roots and waters, and the using and ministering of them to such as be pained with customable diseases, as women’s breasts being sore, a pin and the web in the eye, uncomes of hands, burnings, scaldings, sore mouths, the stone, strangury, saucelin, and morphers, and such other like diseases; and yet the said persons have not taken anything for their pains or cunning, but have ministered the same to poor people only, for neighbourhood and God’s sake, and of pity and charity. And it is now well-known that the surgeons admitted will do no cure to any person, but where they shall know to be rewarded with a greater sum or reward than the cure extendeth unto: for in case they would minister their cunning unto sore people unrewarded there should not so many rot and perish to death, for lack of help of surgery, as daily do; but the greatest part of surgeons admitted have been much more to be blamed than those persons that they trouble." It further states that "although the most part of the persons of the said craft of surgery have small cunning, yet they will take great sums of money and do little therefor, and by reason thereof they do oftentimes impair and hurt their patients rather than do them good." In consideration whereof and for the ease and health of the king’s poor subjects, it was enacted that it should be lawful to every person having knowledge and experience of the nature of herbs, etc., to practise and minister them without suit or vexation. (Here is evidence of the existence of herb doctors, hydropaths and lady physicians in those days.)

Numerous Acts of Parliament have been passed touching the medical profession since the days of "Bluff King Hal," one under James I. to prevent popish recusants practising physic, or using or exercising the trade or art of an apothecary; another under William and Mary for exempting apothecaries from serving as constables or scavengers; another for exempting spirits and spirituous liquours used by physicians, &c., in the preparation of medicine from duty, and others for purposes too numerous to mention. But it is the Medical Act of 1858, as amended by 22 Vict. cap. 21, that now governs the practitioners.

In 1681, the Royal College of Physicians of Edinburgh, was incorporated and power was given of licensing practitioners and of preventing others practising. In Ireland, although the idea had been conceived many years before, it was not until 1654 that a body called "The President and Fraternity of Physicians" was founded; subsequently this company was incorporated and powers given to it very similar to those enjoyed by the London College. Under the Medical Act, Her Majesty was empowered to change the name of this institution (which had already enjoyed several aliases), to that of "The Royal College of Physicians of Ireland."

In England and Ireland a third class of medical practitioners exists, namely, the apothecaries. Prior to the days of Henry VIII. an apothecary seems to have been the common name in England for a general practitioner in medicine. About that time shops began to be established for the exclusive sale of drugs and medicinal compounds, and those who kept these shops often took upon them to doctor their customers. In 1542 Henry’s parliament permitted any irregular practitioner to administer outward medicines, and these shopkeepers readily availed themselves of the permission granted by the Act and pushed the sale of their drugs and obtained larger prices on account of the advice they gave with them, and they appropriated exclusively the title of apothecaries. In 1617 they were incorporated under the name of "The Master, Wardens and Society of the Art and Mystery of Apothecaries of the City of London." About the beginning of the seventeenth century they began to prescribe as well as supply medicine; and although the College of Physicians resisted this poaching on what they considered their preserves, still early in the eighteenth century the matter was settled in favor of the apothecaries, since which time they have been legally recognised as a branch of the medical profession.

An Act of 1815 now regulates the practice of apothecaries throughout England and Wales, and no one can act as such or recover any charges for his services unless he has a certificate from the Society of Apothecaries. An apothecary is bound to make up any prescription duly signed by a licensed physician. Creswell, J., considered an apothecary one "who professes to judge of internal disease by its symptoms, and applies himself to cure that disease by medicine." And Glenn says that the practice of an apothecary may now be said to consist in attending and advising patients afflicted with diseases requiring medical (as distinguished from surgical) treatment; and prescribing, compounding and supplying medicines for their cure and relief.

The invention of medicine was generally attributed by the ancients to the gods, and both in Egypt and Greece female divinities were intimately connected with the healing art. Isis not only caused, but cured disease; she discovered—so it was said—many remedies and as late as Galen several compounds in the materia medica bore her name. Hygeia, the daughter of Æsculapius, was deemed the goddess of health, and Juno presided at accouchments. These fables show that in the remotest antiquity woman practised medicine. The laws of Greece, at a later period, forbad women to practise; thus, also, was it in Rome. However, 300 years before Christ, Agnodice—a young Athenian—dared to attend in disguise the schools of medicine forbidden to her sex. Preserving her incognito, when her education was finished she soon acquired a lucrative practice; and eventually her case caused the law against women to be revoked.

In the Middle Ages, among Mohammedans, many women were skilled in attending to the needs of their own sex; and among the Christians, nuns as well as monks ministered to bodies as well as souls diseased, practising both surgery and physic. In Italy, at Salerno, women prepared drugs and cosmetics, practised among persons of both sexes, took doctor’s degrees, wrote treatises on medical subjects, obtained the royal authority to engage in the art, and composed poems in praise of their science. At the University of Bologna, as late as 1760, Anna Morandi Manzolini filled the chair of Anatomy; her reputation was European, and her lecture-room was frequented by students of all countries—so great was her skill in delicate dissections, and so clearly did she demonstrate the wonders of the human form divine. Dr. Maria delle Donne was professor of medicine and obstetrics in the same college in 1799; and many were the lady graduates of the Universities of Padua, Pavia and Ferrara, as well as Bologna.

In France, the earliest official document extant relative to the profession (dated 1311) forbids the practice of surgeons, or female surgeons, who have failed to pass the required examinations; and an edict of 1352 refers to female practitioners. In Spain, the Universities of Cordova, Salamanca and Alcala bestowed doctor’s degrees on many women. In Germany, also, a number of the fair sex successfully cultivated the science of medicine, and practised it, in the last century and in the early part of this. In England, as has already been seen, in early days women practised the healing arts. Henry VIII. checked them for a time, but in his old age, changing his mind on this, as on almost every other subject, gave them liberty to minister to the outward and less serious ailments of his people.

Crossing the Atlantic an entry is found, under the date of March, 1638, which tells a tale. It is this: "Jane Hawkins, the wife of Richard Hawkins, had liberty till the beginning of the third month, called May, and the magistrates (if she did not depart before) to dispose of her: and in the meantime she is not to meddle in surgery or phisick, drinks, plaisters or oyles, nor to question matters of religion, except with the elders for satisfaction." But now woman is no longer regarded as too good or too stupid to study medicine in America; in nearly every State in the Union she has free access to Medical Colleges. The Council of the College of Physicians and Surgeons of Ontario admit to registration and practice any person who complies with their requirements, without regard to sex. And the Imperial Parliament, by an Act passed in 1876, affirmed the principle that women are entitled to become registered practitioners of medicine.

CHAPTER II.

FEES.

The Roman Law considered the services of an advocate and of a physician as strictly honorific; and, as in the Roman age, practitioners in law and medicine, were usually men of leisure and wealthy, who did not practise for the sake of a livelihood, remuneration for their services could not be recovered in the ordinary way. Although owing to the Utopian ideas concerning the honour of a liberal profession then in vogue it was considered that any mention of a "fee," or a "salary," by that name would soil and disgrace the robe of a practitioner, still it was an established fiction of the Civil Law that the promise of an honorarium always accompanied the employment of a professional man, and that such promise created one of those obligations that might be enforced by action. The Common Law of England adopted the theory of the Civil Law as to the high standing of the profession, but afforded no remedy for the recovery of the charges. Surgeons and apothecaries were enabled to recover by law remuneration for their services, but a physician was presumed to attend his patient for an honorarium (something left to the honour of the patient to pay or not to pay), and could not maintain an action for his fees until the passing of the Medical Act, 1858, put an end to his anomalous position in this money-making age, and gave him as free an entrance into the courts of law to recover compensation for his work and labour, time and skill bestowed, as the worker in any other path of life. Before this a physician could not recover even expenses out of pocket, such as those incurred in travelling to visit a patient, unless there had been an agreement specially made to that effect.

If a physician was a surgeon as well, and attended a case where the advice of a physician and the aid of a surgeon were necessary, he could recover the value of his services as a surgeon but not as a physician.

In England the question sometimes arises, where the practitioner is only a surgeon, whether he can charge for attendance as a physician or as an apothecary. It has been held that typhus fever is not a disease that belongs to a surgeon’s branch of medicine, and that he cannot therefore recover for his attendance on a patient suffering under it. So, too, with regard to consumption and dropsy, though, in the latter case, he may recover for any work done for the patient specifically within his practise, such as puncturation, scarification, bandaging and friction.

At one time it was considered that an apothecary was not entitled to charges for his attendances, but only for his medicine: then the law decided that he might charge for either attendances or medicines, but not for both. Shortly afterwards Tenterden held that one might recover for attendance (the charge being reasonable), as well as for medicine. After that full justice was done to this branch of the profession, and it was decided that there was no rule of law, and there certainly is none of morals, to prevent an apothecary from making distinct charges for attendances and medicines; but if he charges very high for his drugs the jury may think the attendances ought not to be paid for as well.

In Scotland, also, at one time physicians’ fees were regarded as honoraries, and not recoverable by action except under a special contract. Neither in the United States nor in the Colonies have these distinctions been made between the different branches of the profession, nor has the principle been adopted that the profession of a physician is a merely honorary one, and that his services cannot be charged for.

In England every person registered according to the Medical Act, 1858, and in Ontario those registered under the Provincial Act, can practise medicine or surgery, or medicine and surgery; and can recover in any court of law, with full costs of suit, reasonable charges for professional aid, advice, and visits, and the costs of any medicine or other medical and surgical appliances rendered or supplied to his patient; but no person is entitled to recover any such charges in any court of law unless he can prove upon the trial that he is so registered. Registration has now become a part of the plaintiff’s title to recover, which it is imperative upon him to prove. A copy of the medical register for the time being, purporting to be printed and published under the direction of the General Council, is evidence in all courts that the persons therein specified are registered according to the provisions of the Medical Act; and the absence of the name of any person is evidence, until the contrary be made to appear, that such person is not so registered; and the contrary may be shown by a certified copy, under the hand of the registrar, of the entry of the name of such person on the register. Similar rules are in force in the various States where Medical Boards have been constituted by legislative authorities for the purpose of examining and licensing practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana, Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin.

Subject to the various statutory enactments, every physician or surgeon, or any one who chooses to act as such, is entitled to a reasonable reward for his services and for his medicines. If there was no express promise to pay when the services were requested, the law implies one: the broad principle being, that when a person has bestowed his skill and labor for the benefit of another, at his request, and no agreement is made in respect to them, the law raises an implied promise to pay such compensation as the person performing the service deserved to have; and when there is no statutory or other restraint upon the remedy, an action lies on such promise. The amount, unless settled by law, is a question for the jury, and in settling that, the eminence of the practitioner, the wealth of the patient, the delicacy and difficulty of the operation, as well as the time and care expended, are to be considered.

The law, as a rule, sets no limitation to fees, provided they be reasonable. Within this rule a practitioner is allowed discretionary powers and may charge more or less according to his own estimate of the value of his services. No one will pretend to assert that all services are of equal value, and no one will claim that those who can render them the most skilfully should receive only the same reward as those who can render them the least so. A medical man of great eminence may be considered reasonably entitled to a larger recompense than one who has not equal practice, after it has become publicly understood that he expects a larger fee, inasmuch as the party applying to him must be taken to have employed him with a knowledge of this circumstance. But doctors must not be unreasonable in their charges; as Lord Kenyon remarked, "Though professional men are entitled to a fair and liberal compensation for their assistance, there are certain claims which they affect to set up, which if unreasonable or improper, it is for the jury to control". That a patient is a millionaire does not justify an extortionate charge. The French rule is to consider the gravity of the disease as well as the fortune and position of the patient in settling the remuneration of a physician.

The existence of an epidemic does not authorise the charging of exorbitant fees.

In some ages and countries the fees payable to medical practitioners have been fixed by law. In Persia, for instance, in ancient times the law said that "a physician shall treat a priest for a pious blessing, or a spell; the master of a house for a small draught animal; the lord of a district for a team of four oxen; and if he cure the mistress of a house a female ass shall be his fee." (Vendidad Farg. VII.) To take another instance, the medical men in attendance upon the old princes of Wales had their fees settled; for curing a slight wound, a surgeon received for payment the clothes of the injured person which had been stained with blood; and for curing a dangerous wound he had, in addition to the bloody clothing, board and lodging while in attendance, and 180 pence. In Egypt, according to Herodotus, practitioners were paid out of the public treasury, although they might also receive fees from their patients.

A medical man can also recover for the services rendered by his assistants or students; and that even though the assistant is unregistered. It is not necessary that there should be any agreed specified price, he will be allowed what is usual and reasonable.

The right of a medical man to recover his charges for professional services does not depend upon his effecting a cure, or on his services being successful, unless there is a special agreement to that effect. It does not depend upon the fortune of the case whether it be good or bad, but upon the skill, diligence and attention bestowed. For, as a general rule, a physician does not guarantee the success of his treatment; he knows that that depends upon a higher power. Still, some good must have resulted from his efforts. The rule appears to be that if there has been no beneficial service there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence. The practitioner must be prepared to show that his work was properly done, if that be disputed, in order to prove that he is entitled to his reward. Where the surgical implements employed in amputating an arm were a large butcher knife and a carpenter’s sash-saw, it was held that the Court rightly charged the jury, that if the operation was of service, and the patient did well and recovered, the surgeon was entitled to compensation, though it was not performed with the highest degree of skill, or might have been performed more skilfully by others.

If a surgeon has performed an operation which might have been useful but has merely failed in the event, he is nevertheless, entitled to charge; but, if it could not have been useful in any event, he will have no claim on the patient. A medical man who has made a patient undergo a course of treatment which plainly could be of no service, cannot make it a subject of charge; but an apothecary who has simply administered medicines under the direction of a physician may recover for the same, however improper they may have been. If the physician has employed the ordinary degree of skill required of one in his profession, and has applied remedies fitted to the complaint and calculated to do good in general, he is entitled to his fees, although he may have failed in this particular instance, such failure being then attributable to some vice or peculiarity in the constitution of the patient, for which the medical man is not responsible.

It is the duty of a physician who is attending a patient infected with a contagious disease, when called upon to attend others not so infected, to take all such precautionary means experience has proved to be necessary to prevent its communication to them. When a physician who was told by a patient not to attend any infected with small-pox or his services would be dispensed with, failed to say that he was attending such a patient, and promised not to do so, but continued to attend, and did by want of proper care communicate small-pox to the plaintiff and his family, it was held that these facts were proper evidence to go to the jury in reduction of damages in an action for his account, and that the physician was responsible in damages for the suffering, loss of time and damage to which the plaintiff may have been subjected. If a physician by communicating an infectious disease has rendered a prolonged attendance necessary, thereby increasing his bill, he cannot recover for such additional services necessitated by his own want of care This rule will apply with equal force to puerperal fever.

In the case of vaccination, the physician, while he does not guarantee the specific value of the vaccine virus, yet guarantees its freshness; so that if he inoculate a patient with virus in an altered state, constituting as it then would mere putrid animal matter, and erysipelas or any injury to any limb necessitating amputation should arise, he will undoubtedly be held responsible for the suffering, loss of time, and permanent injury to the patient. Long since Lord Kenyon was of the opinion that if a surgeon was sent for to extract a thorn, which might be pulled out with a pair of nippers, and through his misconduct it became necessary to amputate the limb, the surgeon could not come into a court of justice to recover fees for the cure of the wound which he himself had caused.

The physician when sending in his bill should be specific in his charges and not general; he should give the number of visits and dates. In one case a lump charge of "$13 for medicine and attendance on one of the general’s daughters in curing the whooping cough," being objected to by the valiant officer, was held by the Court to be too loose to sustain an action. Where a practitioner brought an action for a bill consisting of a great number of items, and gave evidence as to some of them only, and the jury gave a verdict for the whole amount of the bill, the Court refused to interfere and grant a new trial because every item was not proved. Where a medical man delivered his bill to a patient without a specific charge, leaving a blank for his attendance, the Court inferred that he considered his demand in the light of a "quiddam honorarium," (this was before the Medical Act), and intended to leave it to the generosity of the patient, and the latter having paid into court a certain amount, the Court held the surgeon was bound by the amount so paid and could not recover any more. As a rule, however, if a doctor’s bill is not paid when presented he is not limited by it to the amount of his claim, if he can show that his services were of greater value. When witnesses are called to speak as to the value of the practitioner’s services the Courts generally incline towards the lowest estimate.

The number of visits required must depend on each particular case, and the physician is deemed the best and proper judge of the necessity of frequent visits; and in the absence of proof to the contrary, the Court will presume that all the professional visits made were deemed necessary and were properly made. There must not be too many consultations; and the physician called in for consultation or to perform an operation may recover his fees from the patient, notwithstanding that the attending practitioner summoned him for his own benefit and had arranged with the patient that he himself would pay.

Where a medical man has attended as a friend, he cannot charge for his visits. This was held in one case where it was proved that the practitioner had attended the patient as a friend, upon the understanding that he was to have refreshments and dinners free of charge; and in another case, where a medical man had attended professionally, for several years, a lady with whom he was on terms of intimacy (but received no fees, except once, when he had prescribed for her servant). The day before her death this lady had written to her executors, asking them to remunerate the doctor in a handsome manner, and moreover in her will she gave him a legacy of £3,000 and a reversionary interest in £6000 more. It was proved that he had attended others without having taken fees or sent in bills. It was held that his services had been tendered as for a friend, and accepted as a friends, and his demand as a debt against the assets of the lady was rejected. One would have thought that the physician in this latter case should have been satisfied.

Where a tariff of fees has been prepared, and agreed to by the physicians in any locality, they are bound by it legally as far as the public is concerned, morally as far as they themselves are concerned). It is no part of the physicians business to supply the patient with drugs; if he does so he has a right to be reimbursed therefor.

If a physician enters into a special contract to perform a cure he will be held strictly to its terms, nor will he be allowed to plead circumstances, which, under the general law of professional obligation, might fairly exonerate him from blame, for failing of success in the treatment of his patient. To promise an absolute cure is to assume arrogantly the possession of powers never delegated to man; only a weak and vapid intellect will commit so egregious a blunder. Yet, if a man choose to do it he may, and having entered into an express contract he will be held liable for its fulfilment. For it is his own fault if he undertake a thing above his strength. If the agreement is, no cure, no pay: he cannot even recover for medicines supplied if the cure is not effected. At least, so it was held at Vermont. Contracts to receive a certain sum contingent upon the performance of a cure have always been considered as professionally immoral, and in the civil law were repudiated as against public policy.

The physician is always allowed discretionary powers over the patient entrusted to his care in modes of treatment, so as to be able to alter them according to the varying necessities of the case. Unless such change of treatment involves a risk of life or consequences of which he is unwilling to assume the responsibility, he is not under obligation to give notice or obtain permission before making it. Particularly is this the case where the patient is not at home or among friends or relatives, but is in some degree in his custody and under his exclusive supervision, as well as care. In such circumstances he is authorised to perform operations, or change his treatment, or enforce discipline essential to its fulfilment, without first consulting or obtaining permission from friends or guardians at a distance, since delay might involve a greater risk to the health and possibly the life of the patient than would a necessitated operation; and of such things he alone is the proper, as he alone can be the best, judge. He may recover his fees for such operation or change of treatment without proving that it was necessary or proper, or that before he performed it he gave notice to the party who had to pay, or that it would have been dangerous to have waited until such notice had been given. The burden of proving unskilfulness or carelessness in the operation lies upon the party objecting to it.

When a medical man is called as a witness before a court, to testify as to facts within his knowledge, he must attend and give evidence upon payment of the same fees as other witnesses are entitled to; unless it is otherwise provided by statute.

Where a statute provides that a medical man should be paid a certain witness fee, he is entitled to that fee although he be not called to give professional evidence, and it is not necessary to prove that he is in practice. A witness should be paid his fees when he is subpœnaed; but even if he attends he can refuse to give evidence until he is paid, unless he takes the oath before making the objection. A subpœna should be served a reasonable time before the trial, to enable a witness to put his affairs in such order that his attendance on the court may be as little detrimental as possible to his interests.

Where a medical man is summoned to attend a coroner’s inquest, unless the statute law is clearly to the contrary, he is only entitled to be paid for each days attendance, not for each body on which the inquest was held.

Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the deceased was attended during his last illness, or at his death, by a duly qualified medical man, may summon that medical man to attend the inquest; if he finds that he was not so attended, he may summons any legally qualified neighbouring practitioner, and may direct him to hold a post-mortem examination; but a second practitioner will not be entitled to any fees, unless a majority of the jury have, in writing, asked him to be called. The fees are, for attendance without post-mortem $5, if with post-mortem, without an analysis of the contents of the stomach or intestines, $10; if with such analysis, $20; together with a mileage each way of twenty cents. If the practitioner when duly summoned fails to attend, without sufficient reason, he is liable to a penalty of $40.

Is an expert witness entitled to receive greater compensation than an ordinary witness? or can he be compelled to give a professional opinion without being paid for it? The States of Iowa, North Carolina and Rhode Island have answered these questions by statutes which say such witnesses shall be entitled to extra compensation to be fixed by the court, in its discretion: while Indiana says experts may be compelled to appear and testify to opinions without payment or tender of compensation other than the per diem and mileage allowed by law to other witnesses.

The subject does not appear to have been very much considered in England. In a case, at Nisi Prius, Lord Campbell declared that an expert was not bound to attend upon being served with a subpœna, and that he ought not to be subpœnaed; that he could not be compelled to attend to speak merely to matters of opinion. And Mr. Justice Maule, where an expert demanded additional compensation, said there was a distinction between a witness to facts and a witness selected by a party to give his opinion on a subject with which he is peculiarly conversant from his employment in life. The former is bound as a matter of public duty to testify as to all facts within his knowledge, the latter is under no such obligation, and the party who selects him must pay him for his time before he will be compelled to give evidence.

Worden, J., of the Supreme Court of Indiana, in considering the question, in a case that came up prior to the statute above referred to, reviewed most of the American decisions and the opinions of the text writers, and concluded "that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, cannot be compelled to perform service by giving such opinions in a court of justice without payment." The Court further said, "It would seem, on general principles, that the knowledge and learning of a physician should be regarded as his property, which ought not to be extorted from him in the form of opinions without just compensation." "If the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by giving his opinion, he is performing a strictly professional service. The position of a medical witness testifying as an expert is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of this service is not to prove facts in the cause, but to aid the Court or Jury in arriving at a proper conclusion from facts otherwise proved". In an earlier case (in 1854), in Massachusetts, the Court said, "to compel a person to attend because he is accomplished in a particular science, art or profession, would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable that nothing but necessity can justify it".

On a trial for murder the prosecution had procured the attendance of Dr. Hammond to testify professionally, and had agreed to give him $500 as his fee. This fee was complained of as an irregularity, but the Court in delivering judgment remarked, "The district attorney, it is true, might have required the attendance of Dr. H. on subpœna, but that would not have sufficed to qualify him as an expert with clearness and certainty upon the questions involved. He would have met the requirements of the subpœna if he had appeared in court when he was required to testify and given impromptu answers to such questions as might have been put to him. He could not have been required, under process of subpœna, to examine the case, and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony, as an expert, in respect to the question of the sanity of the prisoner;" and held "that there was no irregularity in the payment of such a fee".

Such text writers of high repute as Taylor, Phillips, Redfield and Ordronaux, all agree that an expert cannot be compelled to give professional opinions without proper remuneration. The last named writer says, "Where a subpœna is served upon an expert he must obey it, if within the range of physical possibility. But once on the stand as a skilled witness his obligation to the public ceases, and he stands in the position of any professional man consulted in relation to a subject upon which his opinion is sought. He cannot be compelled to bestow his skill and professional experience gratuitously; whoever calls for an opinion from him in chief must pay him, and the expert may decline to answer until the party calling him has paid. When he has given his evidence he cannot decline repeating it, or explaining it. A similar rule will, by parity of reasoning, apply to personal services demanded from the expert, as well as to opinions asked".

On the other hand, the Supreme Court of Alabama, in 1875, confirmed a fine imposed upon a physician for refusing to state the nature and character of a wound received by a man and its probable effect, upon the ground that he had not been remunerated for his professional opinion, nor had compensation for it been promised or secured. And the Court of Appeals in Texas, in 1879, held, that the court could compel a physician to testify as to the result of a post-mortem examination; adding, that a medical expert could not be compelled to make a post-mortem examination unless paid for it, but an examination having already been made by him he could be obliged to disclose the results thereof.

The result of the authorities seems to be that, without the aid of a statute, an expert cannot be compelled to bestow his skill and professional experience gratuitously upon any party, for his skill and experience are his individual capital and property.

CHAPTER III.

WHO SHOULD PAY THE DOCTOR.

If Smith says to Brown, a medical man, "Attend upon Robinson, and if he does not pay you I will;" that being a promise to answer for a debt of Robinson’s, for which he is also liable, the guarantee is only a collateral undertaking, and, under the Statute of Frauds, must be in writing and signed by Smith, or some other person thereunto by him lawfully authorised, in order to be binding upon him. But if Smith says to Dr. Brown, absolutely and unqualifiedly, "Attend upon Robinson, and charge your bill to me," or "I will pay you for your attendance upon Robinson;" then the whole credit being given to Smith, no written agreement is necessary to enable the doctor to recover the amount of his account from him, since it is absolutely the debt of Smith.

Where a person calls at the office of a physician, and, he being absent, the visitor leaves his business card with these words written on it, "Call on Mrs. Jones, at No. 769 High Street," handing it to the clerk in attendance, with the request that he would give it to the doctor and tell him to go as soon as possible; this caller becomes liable to pay the doctor’s bill for attendance upon Mrs. Jones in pursuance of such message. Yet Mrs. Jones, if a widow, may also be liable; for one who acquiesces in the employment of a physician, and implies, by his or her conduct, that the doctor is attending at his or her request, is responsible for the value of his services. If Mrs. Jones is living with her husband, or, without her fault, away from him, the doctor has still another string to his bow, and may recover the amount of his bill from Mr. Jones; for the rule is, that a husband must pay his wife’s doctor’s bills. Of course the doctor cannot make all three pay.

Long since, Park, J., was clearly of the opinion that if a mere stranger directed a surgeon to attend a poor man, such person was clearly liable to pay the surgeon. Yet, in some cases in the United States, it has been held that the man who merely calls the doctor is not bound to pay him. When, for instance, in Pennsylvania, a son of full age, when living with his father, fell sick, and the father went for the doctor, urging him to visit his son. Afterwards the physician sued the parent. The Court said this was wrong, that he should have sued the son, as the father went as a messenger only, that the son, who had the benefit of the services, was the responsible person; and remarked that it was clear that had the defendant been a stranger, however urgent he may have been and whatever opinions the physician may have formed as to his liability, he would not have been chargeable without an express promise to pay, as, for instance, in the case of an inn-keeper or any other individual whose guest may receive the aid of medical service. A different principle, the Court considered, would be very pernicious, as but very few would be willing to run the risk of calling in the aid of a physician where the patient was a stranger or of doubtful ability to pay. This was in 1835. And, in Vermont, one brother took another, who was insane, to a private lunatic asylum and asked that he (the insane one), might be taken in and cared for. This was done. In course of time the doctor sued the sane one for his bill, but the Court would not aid him in the matter, saying, "He is not liable unless he promised to pay".

In the case of Mr. Dodge, above referred to, the Court said, "He might very readily have screened himself from all liability, by simply writing the memorandum on a blank card, or by adding to that which he wrote on his own card something that would have apprised the doctor of the fact that he acted in the matter for Mrs. Jones, as her agent."

The reporter did not approve of this decision, and so appended the following graphic note: "Let us see how this thing works. We will take as an illustration an almost every-day occurrence arising in the country. A. B. is taken suddenly and seriously ill in the night time, and sends to his neighbour, C. D. living in the next house to his, to have him go after the doctor as soon as he can, for he is in great pain and distress. C. D. jumps out of bed without hesitation, and hastily dresses himself, and goes out to his barn and takes a horse from the stable, and not waiting to put on a saddle or bridle, jumps on to the horse with the halter only, puts him at full speed for the doctor’s office, some two or three miles distant. On arriving there he finds the doctor absent from home, but his clerk is there, and C. D. at once says, ‘Tell the doctor to call on A. B. who has been taken suddenly sick; tell him to come as soon as possible.’ In accordance with this message the doctor calls upon A. B., and prescribes for and attends him professionally for several days. After a reasonable time the doctor sends in his bill to A. B. and it not being paid as soon as the doctor desires, he calls on C. D. and requests him to pay the bill. C. D. with perfect astonishment, asks why he is to pay. The doctor informs him that he made himself liable to pay the bill because, when he delivered the message, he did not tell the clerk that he came for the doctor by the request of A. B. nor that he acted as agent of A. B. in delivering his message. Well, says C. D. the fact was I did go at the request of A. B. and merely acted as his agent in delivering the message, and I will swear to these facts if necessary. The doctor insists that it will do him no good if he should give such testimony, for the law is settled on that point, as just such a case has recently been decided in New York under just such a state of facts, where the jury, in the justice court, found a verdict for the doctor for the amount of his bill, and, on appeal by the defendant to the general term of the New York Common Pleas, that court unanimously sustained the verdict of the jury, and affirmed the judgment of the court below. Well, says C. D. ‘If that is the law I think I will wait awhile before I go after a doctor again as an act of neighbourly kindness.’" This case was decided as late as March, 1873.

A wife has implied authority to bind her husband for reasonable expense incurred in obtaining medicines and medical attendance during illness; but this implied authority is put an end to if she commits adultery while living apart from her husband, and there has been no subsequent condonation; or, if she leaves her husband’s home of her own accord and without sufficient reason, and the fact has become notorious, or the husband has given sufficient notice that he will no longer be responsible for any debts that she may incur. If a husband turn an innocent wife out of doors without the means of obtaining necessaries, it is a presumption of law, which cannot be rebutted by evidence, that she was turned out with the authority of her husband to pledge his credit for necessaries, and in such a case medical attendance will be considered as one of the primary necessaries. A married woman’s misconduct does not exonerate the husband from paying a doctor whom he requests to attend her.

Although the law requires the husband to furnish the wife with all necessaries suitable to his condition in life, including medical attendance in case of sickness, still it gives him the right to procure these necessaries himself and to decide from whom and from what place they are to come. If a physician attends a wife whom he knows to be living separate and apart from her husband, he ought to enquire whether she has good cause for so doing; for if she has not he cannot make the husband pay the bill; and it has been held that it devolves upon the doctor to show that there was sufficient cause for the wife’s separation. The employment of a physician by a husband to attend his sick wife, presumably continues throughout the illness; and the mere fact that the wife is removed, with the husband’s consent, from his home to her father’s, will not enable him to resist payment of the doctor’s bill for visits paid to her at the father’s.

Notwithstanding the law’s desire not to favour any particular school, a quack’s bill was thrown out where the services were rendered without the husband’s assent. This was done in a case where a doctor was in the habit of putting a woman into a mesmeric sleep, she thereupon became a clairvoyant and prescribed the medicines which the doctor furnished, and for these he sued. The Judge said:—"The law does not recognize the dreams, visions or revelations of a woman in mesmeric sleep as necessaries for a wife for which the husband, without his consent, can be made to pay. These are fancy articles which those who have money of their own to dispose of may purchase if they think proper, but they are not necessaries known to the law for which the wife can pledge the credit of the absent husband".

In England, it was, until 1869, considered that a parent’s duty to furnish necessaries for an infant child was a moral and not a legal one, so that he was not liable to pay for medicines or medical aid furnished to his child without some proof of a contract on his part either expressed or implied. And this still is the view where the child is over fourteen. The rule of law varies in the different States of the Union. In most of those in which the question has come before the courts the legal liability of the parent for necessaries furnished to the infant is asserted, unless they are otherwise supplied by the father; and it is put upon the ground that the moral obligation is a legal one, and some of the courts have declared this quite strongly. In other States the old English rule has been held to be law, and agency and authority have been declared to be the only ground of such liability. The authority of the infant to bind the parent for medical aid supplied him will be inferred from very slight evidence. But a contract to pay will not be implied when the infant has been allowed a sufficiently reasonable sum for his expenses. Where the services have been rendered with the parent’s knowledge and consent, he will generally have to pay for them. A boy left home against his father’s will, and refused to return at his parent’s command. Being seized with a mortal illness he did at last come back. His father went with him to a physician to obtain medical advice, and the doctor afterwards visited him professionally at his father’s house. No express promise to pay was proved, nor had the father said he would not pay. The Court held the father liable to pay the doctor’s bill. And in an English case, where a father had several of his children living at a distance from his own house under the protection of servants, it was held that if an accident happened to one of the children he was liable to pay for the medical attendance on such child, although he might not know the surgeon called in, and although the accident might have been received through the carelessness of a servant.

By a recent English statute, when any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, in his custody, under the age of fourteen, whereby the child’s health shall have been, or shall be likely to be, seriously injured, he shall be guilty of an indictable offence punishable by imprisonment. Charles Downes was the two-year-old child of a member of the sect of Peculiar People. These people never call in medical aid or give medicines: to do so would be contrary to their religious opinions; but if any is sick they call in the elders of the church, who pray over him, anointing him with oil in the name of the Lord; then they hope for a cure, as they have thus literally complied with the directions in the 14th and 15th verses of the 5th chapter of the Epistle of St. James. This child was ill for months; the usual course was pursued by his father; no medical aid was obtained, although easily obtainable. The illness was misunderstood, and, although he was taken care of and well supplied with food, the child died. The father was indicted for manslaughter, and the jury found that the death was caused by the neglect to obtain medical assistance, that the father bona fide (though erroneously) believed that medical aid was not required, and that it was wrong to use it. The Judge entered a verdict of guilty, and the Court held—under this statute—that a positive duty was imposed upon the father to provide adequate medical aid when necessary, whatever his conscientious scruples might be, and that that duty having been wilfully neglected by the prisoner, and death having ensued from that neglect, he was properly convicted of manslaughter.

It had been held by Pigott, B., in a case against these same Peculiar People, and also by Willis, J., that, at common law, there was no legal duty upon a father to employ a physician for his sick child.

It is not enough to shew neglect of reasonable means for preserving or prolonging the child’s life, to convict of manslaughter, it must be shewn that the neglect had the effect of shortening life. It will not do merely to prove that proper medical aid might have saved or prolonged life and would have increased the chance of recovery, but that it might have been of no avail. In this case the father, perhaps, might have been convicted of neglect of duty as a parent, under the statute (per Stephen, J.).

Medicines and medical aid are necessaries for which an infant may legally contract, and for which he can render himself liable. In Massachusetts, it was held that he would not be liable merely because his father was poor and unable to pay.

A master is not bound to provide medical assistance for his servant, but the obligation, if it exists at all, must arise from contract; nor will such a contract be implied simply because the servant is living under the master’s roof, nor because the illness of the servant has arisen from an accident met with in the master’s service. But where a servant left in charge of her master’s children was made ill by suckling one of the children, and called in a medical man to attend her, with the knowledge and without the disapprobation of her mistress, it was decided that the doctor could make the father and master pay. And a master is bound to provide an apprentice with proper medicines and medical attendance.

In England, when a pauper meets with an accident, the parish where it occurs is usually liable for the surgeon’s bill. If, however, the illness of the pauper arises from any other cause than accident or sudden calamity, the parish in which he is settled is under legal liability to supply him with medical aid, although he may be residing in another parish. But all these questions with regard to paupers are determined according to the poor laws of the different countries.

It has frequently happened that when a railway passenger or employee has been injured by a collision or accident, and some railway official has called in a doctor, the company has afterwards refused to pay the bill; and the courts have declined to make them do so, unless it be shown that the agent or servant who summoned the medical man had authority to do so. It has been held that neither a guard, nor the superintendent of a station, nor the engineer of the train in which the accident happened, had any implied authority, as incidental to their positions, to render their companies liable for medical services so rendered. The Court of Exchequer said, "It is not to be supposed that the result of their decision will be prejudicial to railway travellers who may happen to be injured. It will rarely occur that the surgeon will not have a remedy against his patient, who, if he be rich, must at all events pay; and if poor, the sufferer will be entitled to a compensation from the company, if they by their servants have been guilty of a breach of duty, out of which he will be able to pay, for the surgeon’s bill is always allowed for in damages. There will, therefore, be little mischief to the interests of the passengers, little to the benevolent surgeons who give their services." But, in England, it has been decided that the general manager of a railway company has, as incidental to his employment, authority to bind his company for medical services bestowed upon one injured on his railway. In Illinois, a similar decision was given as to a general superintendent, although in New York judgment was given the other way.

If an accident happen to a stage coach by which a passenger’s leg is broken, or his human form divine is otherwise injured, the coachman has no authority to bind his master by a contract with a surgeon to attend to the injury; nor if a lamp-lighter, by neglect, burn any person, has he, or any officers of the gas company, power to bind the company by a contract for the cure of the injured person. If ordinary employees had such authority, then every servant who, by his negligence or misconduct, had caused injury to an individual, would have an implied authority to employ, on behalf and at the expense of his employer, any person he thought fit to remedy the mischief.

CHAPTER IV.

WHO MAY PRACTISE.

The law has nothing to do with the merits of particular systems or schools of medicine. Their relative merits may become the subject of inquiry when the skill or ability of a practitioner, in any given case, is to be passed upon as a matter of fact. But the law does not and cannot supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but it is essentially progressive in its nature. No one system of practice has been uniformly followed, but physicians, from the days of Hippocrates, have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries until the rise of the methodics, who in their turn gave way to innumerable sects. Theories of practice believed to be infallible in one age have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed, his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following the medical world was divided between the Galenists and the chemists, until a complete ascendancy over both was obtained by the vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of disease and the mode of its treatment, than to that careful observation and patient accumulation of facts by which, in other sciences, the phenomena of nature have been unravelled. It is not to be overlooked that as an art it has been characterised in a greater degree by fluctuations of opinion as to its principles and the mode of its practice than perhaps any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories. That it has alternated between the advancement of new doctrines and the revival of old ones; and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day a radical and fundamental difference divides the allopathists from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality. The axiom that doctors differ is as true now as ever it was Thus spake Daly, J.; the reporter observes in a note: "It may, perhaps, be safely questioned whether the sister sciences of law and theology present any such unity or certainty of opinion as might enable them to arraign the medical profession."

In Great Britain and Ireland, since the passing of the Medical Act of 1858, every one registered under the provisions of that Act is entitled, according to his qualification, to practise medicine or surgery, or both (as the case may be), in any part of Her Majesty’s Dominions, and to recover on any court of law (should any patient neglect to pay) his reasonable charges for professional aid, advice and visits, and the costs of any medicine, or other medical or surgical appliances rendered or supplied by him to his patient; but any one not so registered cannot recover any such charges in any court of law. Proof of registration is absolutely necessary for a recovery; but it will suffice if the registration has taken place before the trial.

And as to who may be registered; the Act says any one may be who is a fellow, member, licentiate, or extra licentiate, of the Royal College of Physicians of London, or of the Royal College of Physicians of Edinburgh, or of the King and Queen’s College of Ireland; or fellow, member, or licentiate in midwifery, of the Royal College of Surgeons of England, or fellow or licentiate of the Royal College of Surgeons of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow, or of the Society of Apothecaries, London, or of the Apothecaries Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any university of the United Kingdom, or licentiate in surgery of any university in Ireland; or doctor of medicine by doctorate granted prior to August, 1858, by the Archbishop of Canterbury; or doctor of medicine of any foreign or colonial college, after examination, or who satisfies the Council of Education and Registration that there is sufficient reason for admitting him to be registered.

In France, the medical profession is divided into two grades; in the higher grade are all doctors of medicine of the universities; those in the lower grade are officiers de santé. In Germany, the right to practise is conferred by a state licence granted on passing the staats-examen: the degree of doctor of medicine is almost always taken at some university after obtaining the state license. In Austria, the right to practise is carried by the degree of doctor of medicine obtained from a university.

The legislature of every colony of Great Britain has full power to make laws for the purpose of enforcing the registration within its jurisdiction of medical practitioners, including those registered under the Imperial Act.

In Ontario, the medical profession is incorporated under the name and style of "The College of Physicians and Surgeons of Ontario," and every person registered under the provisions of the Ontario Medical Act is a member of the college. There is a "Council," in part appointed by certain educational institutions, in part elected by practitioners. This council fixes the curriculum of studies, appoints examiners, and arranges the examinations of those desirous of admission to practise; it also arranges for the registration of those who pass the examinations, or had certain qualifications before July, 1870. Every one who passes the examinations and has complied with the rules and regulations of the council, and paid his fees, is entitled to registration, and by virtue thereof to practise medicine, surgery and midwifery in the Province. If registration is not granted to one he may compel it by a writ of mandamus.

Registration is essential to entitle a practitioner to recover any charges for medical or surgical advice, or for attendance, or for performance of any operation, or for any medicine he may have prescribed or supplied. (This last clause does not apply to any licensed chemist or druggist.) And if any one unregistered, for hire, gain or hope of reward, practises or professes to practise medicine, surgery or midwifery, or advertises to give advice therein, he is liable to a fine of from $25 to $100. And any one not registered who takes or uses any name, title, addition or description implying or calculated to lead people to infer that he is registered, or that he is recognized by law as a physician, surgeon, accoucheur, or a licentiate in medicine, surgery or midwifery, is liable to the same penalty. Any person who wilfully or falsely pretends to be a physician, doctor of medicine, surgeon, or general practitioner, or assumes any title, addition or description, other than he actually possesses and is legally entitled to, is liable to a fine of from $10 to $50. But it is not punishable to practise for love or charity, and any one who has the degree of doctor of medicine may place the letters "M.D." after his name, even though he is not a registered practitioner, if he do not act as such for hire or gain.

Where one partner was registered and the other was not, and there was painted on the sign after the name of the first "M.D., M. C. P. & S., Ont.," and after the name of the other only "M.D.," it was held that the use of the simple letters "M.D.," in contradistinction to the full titles of the partner on the same sign was not the use of a title "calculated to lead people to infer registration," and that the unregistered partner was not guilty of an offence under the act.

In Ontario, provision is made for the registration of Homœopathists as well as of regular practitioners, and for the Eclectics who were practising in the Province for six years before 1874.

A physician practising in another country, and performing medical services for a patient then residing there, may recover his fees in this Province notwithstanding he is not registered. A medical practitioner duly registered in England, under the Imperial Act, is entitled in Ontario to registration upon payment of fees without examination.

In the United States, the common law doctrine, which favours the right of every man to practise in any profession or business in which he is competent, prevails to a great extent; and medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This was also the doctrine of the civil law, which drew no barriers around either law or medicine. Any one who pleased might practise them without any previous qualification; subject always to responsibility for injury inflicted upon others.

In the absence of any statutes, therefore, limiting the common law right to practise medicine inherent in every person, the term physician may there be applied to any one who publicly announces himself to be a practitioner of the art and undertakes to treat the sick, either for or without reward. The common law knows nothing of systems or schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer Doctor, Indianopathist, Clairvoyant Doctor and regular physician are alike. The scales of justice are no more affected by the large doses of the allopathist than by the infinitesimal supplies of the homœopathist. But the law will sometimes interfere where one not pretending to be a practising physician uses a peculiar system in his own family. A father, during the sickness of his children and wife, refused to provide any medical treatment, except that applied by himself, called the Baunscheidt system, which consists in pricking the skin of the patient in different parts of the body with an instrument armed with a number of needles and operated by a spring, and then rubbing the parts affected with an irritating oil. The wife and three children had died within a month. The man practised the exanthematic treatment upon them, but did not even call in physicians who used that mode. The Superior Court of Pennsylvania deprived this believer in the Baunscheidt panacea of the custody of his surviving children.

Before the common law every one undertaking to treat the sick professionally, and as the exercise of his vocation, is legally a physician. He has the rights of one, and when he assumes those rights the law lays upon him the heavy burdens and responsibilities of the profession. It is, of course, far otherwise if any statute prescribes particular qualifications for the practice of the profession and one undertakes to discharge its duties without such qualifications. Then he is doubly a wrong-doer; first, as against the statute; and, second, as against the public, who have a right to demand in him the ordinary proficiency of his profession.

In Arkansas, California, Connecticut, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and Vermont, there appear to be no statutory requirements regulating the practice of physicians or surgeons. In Virginia, the practitioner only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine, Minnesota, Ohio and Wisconsin, a practitioner must either have a license from a medical board or society, constituted according to the law of the respective States, or else be a graduate of a medical college. In South Carolina and the District of Columbia, he must be licensed by the medical board; so, too, in Delaware. But this rule in Delaware does not apply to those who practise exclusively the Thompsonian or botanic, or homœopathic systems; or practise gratuitously or for what is willingly given them.

In New York State, early in the century, it was enacted that no one practising physic or surgery, without a license, could collect any debts incurred by such practice, and it was a penal offence so to practise. In 1830, the unauthorized practice of physic or surgery was made a misdemeanor punishable by fine or imprisonment, or both. Shortly afterwards the offence was made penal instead of criminal, and it was declared the provisions should not extend to any one using or applying for the benefit of any sick person any roots, barks, or herbs, the growth or produce of the United States. In 1844, all laws limiting the right to practise medicine or surgery were repealed; free trade in physic prevailed; all examinations, certificates and licenses were declared unnecessary; the repealing Act expressly permitted any person to practise physic subject to punishment, as for a misdemeanor, if he should be convicted of gross ignorance, malpractice, or immoral conduct. However, a change came, and, in 1874, the legislature declared that it was "a misdemeanor for any person to practise medicine or surgery in the State of New York, unless authorized so to do by a license or diploma from some chartered school, State board of medical examiners, or medical society," or to practise under cover of a medical diploma illegally obtained. The penalty for the first offence is a fine of not more than $200; for a subsequent offence a fine of from $100 to $500, or imprisonment for not less than thirty days, or both. In 1880, it was further enacted that no person shall "practise physic or surgery within the State unless he is twenty-one years of age, and has been heretofore authorized so to do pursuant to the laws in force at the time of his authorization, or is hereafter authorized so to do, either by license from the regents of the University of the State of New York, a diploma of an incorporated medical college within the State, or of one without the State approved of by some proper medical faculty within the State." Every physician or surgeon, except those who had been practising ten years before 1880 (and a few others), had to register with the clerk of the county, where he practised, his name, residence, place of birth, together with his authority to practise.

After the repeal of the old Medical Acts, and before the enactment of the law of 1874, the New York Court of Common Pleas had to define who was a physician or doctor, and it said the words simply meant, "a person who made it his business to practise physic; and it was wholly immaterial to what school of medicine he belonged, or whether he belonged to any. The legal signification of the term doctor means simply a practitioner of physic. The system pursued is immaterial. The law has nothing to do with the merits of particular systems." The point came up in considering a case where an agreement of employment between an opera director and a vocalist provided for the forfeiture of a month’s salary in case the latter should fail to attend at any stated performance, except in the case of sickness, certified to by a doctor to be appointed by the director. The director appointed Dr. Quin, an homœopathist. Signor Corsi, the baritone, had a bad cold and a sore throat, but would not consult Dr. Quin, and proffered a certificate of an allopathist of his own choosing. This Max Maretzek would not take, and he refused to pay Corsi his salary. The singer sued, but the Court held that the provision was binding upon the artist, although the director had appointed a person in the practice of what is known as the homœopathic system of medicine. The Court considered it was error to attempt in the then present state of medical science to recognize as a matter of law any one system of practice, or to declare that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not.

It has been held, however, that where a "regular physician" is spoken of, an allopathic is meant.

In Iowa, the Court said, "As yet there is no particular system of medicine established or favoured by the laws of Iowa, and as no system is upheld none is prohibited. The regular, the botanic, the homœopathic, the hydropathic and other modes are alike unprohibited. Though the regular system has been advancing as a science for centuries, aided by research and experiment, by experience and skill, still the law regards it with no partiality or distinguishing favour, nor is it recognized as the exclusive standard or test by which the other systems are to be adjudged".

Notwithstanding the New York law of 1874, one can undertake to effect cures by manipulation without possessing a diploma. He may even maintain an action for the compensation agreed upon, although not a graduate and having no license to practise. A man professed to cure by rubbing, kneading and pressing the body. The court considered his system was rather one of nursing than of either medicine or surgery, and that it could not result in any injury to the person practised upon than that of possible financial loss Yet, in Maine, where a license is required, even a "medical clairvoyant" was held to come within the statute, and it was decided that he could not render his professional services without having the legal permission. In England, an unregistered person sued to recover his charges for galvanic operations, and for materials and electric fluid used therein. The jury decided in favour of the galvanizer, and the court would not disturb the verdict, as the work was done before the Act of 1858 came into operation, but expressed a strong opinion that if the work had not been done when it was, it would have been impossible to hold that the case did not fall within the statute.

A physician must practise according to the principles of his school. There are distinct and different schools of practice; allopathic or old school, homœopathic, Thompsonian, hydropathic or water cure; and if a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, not by those of other schools. It is presumed that patient and physician both understand this.

A person professing to follow one system of medical treatment cannot be expected by his employer to practise another. While the regular physician is expected to follow the rules of the old school in the art of curing, the botanic physician must be equally expected to adhere to his adopted method. While on the part of every medical practitioner the law implies an undertaking that he will use an ordinary degree of care and skill in medical operations, and he is unquestionably liable for gross carelessness or unskilfulness in the management of his patients, still the person who employs a botanic practitioner has no right to expect the same kind of treatment or the same kind of medicine that a regular physician would administer. The law does not require a man to accomplish more than he undertakes, nor in a different manner from what he professes. So, if one is employed as a botanic physician, and performs his services with ordinary care and skill, in accordance with the system he professes to follow, that will be regarded as a legal defence to a suit for malpractice. It would show a full compliance with his profession and undertaking, and if injury resulted to the plaintiff he could blame no one but himself.

If a patient has not been deluded by any but himself, and voluntarily employs in one art a man who openly exercises another, his folly has no claim to indulgence. The old Mahomedan case, cited by Puffendorf with approbation, is very much to the point. A man who had a disorder in his eyes called on a farrier for a remedy. This worthy gave him a remedy commonly used by his quadrupedal patients. The man lost his sight, and brought an action against the farrier for damages; but the Judge said that no action would lie, for, if the complainant had not himself been an ass, he would never have employed a horse doctor. But when a case, the converse of this, came up, the Court remarked that, "stock and the human family are animals with many similitudes and some variances; so that, although it be admitted that one acquainted with the mode of treating diseases of the human family should not be relied on to select from the materia medica substances apt for the treatment of stock, still we think it clear that one having a scientific knowledge of the diseases of men must be presumed to have so much knowledge of the diseases of a mule as to enable him to determine whether a disease with which the animal is afflicted be of recent or long standing. An expert in the diseases of man is necessarily an expert in the diseases of animals, so as to make his opinion competent evidence upon a matter in reference to which he will swear that his scientific knowledge has enabled him to form an opinion." And so a physician was allowed to give his opinion as to whether the disease with which a mule was afflicted was, or was not, of long standing, as he considered himself competent so to do from his knowledge of the diseases to which human flesh is heir, although he knew nothing in particular about the diseases of stock.

As one who employs a homœopathic or botanic physician knowingly cannot object to his bill because he was not treated in the way usual among orthodox practitioners; so, on the other hand, if a physician of one school is employed by one who has a penchant for that particular system, and treats his patient according to a different system, he cannot recover for his services if he fail to benefit the patient.

Proof that one practises physic is prima facie evidence of his professional character; and if one holds himself out as a physician and surgeon, and acts as such, the law will hold him liable as such.

A physician who merely casually makes up a prescription for a friend when meeting him upon the street, cannot be called his medical attendant; that term means one to whose care a sick person has been confided.

CHAPTER V.

NEGLIGENCE AND MALPRACTICE.

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. 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.

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 degree of complete negligence in the practice as the law means by the word felonious.

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.

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". 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.

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. 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.

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. 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.

A surgeon does not become an actual insurer; 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. 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, nor for an erroneous, though honest conclusion, according to his best light. 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.

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". 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". 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.

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, 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.

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. 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 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.

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.

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.

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. 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 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.

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.

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.

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 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.

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. 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. 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 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 homœopathic physician by the homœopathic system: so if a botanic doctor, or a homœopathist, 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.

A sign or other proof that one actually practises physic or surgery is prima facie evidence of his professional character. 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.

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.

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, 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.

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; 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.

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. 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 usually expected, though it may be that some is." Wharton cannot accept this doctrine from humane and other considerations. 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.

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. 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.

If a sick man applies to one, not a physician, for 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.

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.

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.

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 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.

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. 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.

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. In fact the plaintiff must use his own senses. Still, if he is rash and negligent, and yet the 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. So, where the doctor’s negligence is the proximate cause of the injury, and that of the patient only the remote cause. And proximate does not mean the first or nearest in order of time, but the first or nearest in order of cause.

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. The burden of proving that the plaintiff’s own negligence contributed to the injury rests upon the defendant. 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.

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.

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.

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. 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. 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 the result of mutual and concurring neglect of the parties no action to recover damages therefor will lie.

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). 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 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.

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 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.

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.

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. Ordronaux says a physician cannot 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.

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". 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"; and in this same case, which was an 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".

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.

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 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.

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.

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 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".

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".

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 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".

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. Also, the age and 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.

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. 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.

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. 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 him". 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. 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.

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 action is brought; but such injury must be a pecuniary loss, and the jury may not give damages as a solatium. 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.

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.

CHAPTER VI.

CRIMINAL MALPRACTICE.

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. "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 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.

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. 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 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.

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.

"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". And if a medical man, though lawfully qualified to act as such, cause 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. 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. 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.

"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. Long since in the Mirror 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., 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".

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.

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 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".

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". 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.

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, 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". And in the very recent case of State v. Hardister, 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.