MALPRAXIS AND NEGLECT OF DUTY
A medical man is liable to a civil action for damages 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. And it is not necessary that the patient should have employed or was to have paid him, provided always that there be no negligence or carelessness on the part of the patient. Lord Chief-Justice Tindall remarks: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonably fair and competent degree of skill.” It has also been decided that if the defendant acted honestly, and used his best skill to cure, and it does not appear that he thrust himself in the place of a competent person, it makes no difference whether he was at the time a regular physician or surgeon or not (R. v. Van Butchell; R. v. Williamson, &c.). A surgeon does not undertake to perform a cure, nor does he profess to bring the highest professional skill into the consideration of the case; but he does undertake to bring a fair and reasonable amount. The degree of skill required by law is good common sense, or such knowledge as the operator had, joined with a good purpose to help the afflicted, even if such interference rendered the patient a cripple for life. “It would be dreadful,” says Hullock, B., “if every time an operation was performed an individual was liable to have his practice questioned.” “So, if a physician or surgeon give his patient a potion or plaster to cure him, which, contrary to expectation, kills him, this also is neither murder nor manslaughter, but misadventure.” A medical man is only liable for gross negligence, not for every slip he may make; but the distinction between criminal and actionable negligence cannot be defined; but it appears that the negligence must be so gross as to come under the legal meaning of the word “felonious.” ([See p. 82].)