If a medical practitioner passes himself off as a physician, (by no means an unfrequent practice in distant parts of the country) although he has no diploma, and no right to assume that character, he cannot maintain an action for his fees. Lipscombe v. Holmes, 2 Camp. 441. see Appendix. Though as a surgeon he might have recovered compensation: and even if he were no regular surgeon, the doctrine in Gremare v. Le Clerc Bois Valor, 2 Camp. 144. would entitle him to recover in an action of assumpsit. But query the authority of this case.[[140]]
If there be any promise, a physician may receive on a quantum meruit, Shepherd v. Edwards; Hill 11. Jac. 2. Croke 370. In this case the plaintiff declared that he being a professor of physic and surgery had cured the defendant of a fistula and he had judgment. All physicians may practise surgery; (32 Hen. 8.) though surgeons may not encroach in physic; therefore query whether in this case the plaintiff did not sue as a surgeon; and the disease was one which in this day would clearly be classed as a surgical case. It was not so however in Dale against Copping, (Bulst. part 1. p. 39) when the promise of an infant to pay a certain sum to the defendant for curing him of the falling sickness was held binding, “for that this shall be taken as a contract, and that to be for a thing in the nature of necessity to be done for him, and the same as necessary as if it had been a promise by him made for his meat, drink, or apparel, and in all such cases his promise is good and shall bind him.”
OF ACTIONS AGAINST MEDICAL PRACTITIONERS.
If a Physician, Surgeon, Apothecary, or other medical practitioner, undertakes the cure of any wound or disease, and by neglect or ignorance the party is not cured, or suffers materially in his health, such medical attendant is liable to damages in an action of trespass on the case: but the person must be a common Surgeon[[141]], or one who makes public profession of such business, as surgeon, apothecary, &c. for otherwise it was the plaintiff’s own folly to trust to an unskilful person, unless such person expressly undertook the cure, and then the action may be maintained against him also. See Bull. N. P. p. 73; 2 Esp. N. P. p. 601.
“And it seems that any deviation from the established mode of practice, shall be deemed sufficient to charge the Surgeon, &c. in case of any injury arising to the patient.” See Slater v. Baker and Stapleton. 2 Wils. 359. which was a special action on the case against a Surgeon and an Apothecary, for unskilfully disuniting the callous of the plaintiff’s leg after it was set, (see Appendix, p. 189) which it appears was done for the purpose of trying a new instrument. The Plaintiff recovered 500l. against the Defendants jointly, and the Chief Justice said he was well satisfied with the verdict. On a motion for a new trial, the judgment was affirmed by the whole Court.
In Seare against Prentice, 8 East. R. 348. it was determined that this action lies against a Surgeon for gross ignorance and want of skill in his profession, as well as for negligence and carelessness, to the detriment of a patient; though if the evidence be of negligence only, which was properly left to the jury, and negatived by them; the Court will not grant a new trial, because the jury were directed that want of skill alone would not sustain the action. See Appendix, p. 194.
In the case of Neale v. Pettigrew, a Surgeon was held responsible in damages for the negligence and unskilfulness of his apprentice or servant[[142]].
Though the cited cases are surgical, there is no doubt that similar actions would be maintainable against Physicians or other medical practitioners; but as internal injuries are less demonstrable than external, there might be some difficulty in obtaining the necessary evidence. We shall treat in another place of the criminal responsibility of persons undertaking cures in cases where death ensues from their mal-practice.
MIDWIFERY.
“In former times the necessity of Baptism to new born infants was so rigorously taught, that for this reason they allowed lay people and even women, to baptize the declining child, where a priest could not be immediately found; so fondly superstitious in this matter, that in hard labours the head of the infant was sometimes baptized before the whole delivery; this office of baptizing in such cases of necessity was commonly performed by the midwife; and tis very probable, this gave first occasion to midwives being licensed by the bishop, because they were to be first examined by the bishop or his delegated officer, whether they could repeat the form of baptism which they were in haste to administer upon such extraordinary occasions. But we thank God our times are reformed in sense and in religion.” (Watson’s Cler. Law, c. 31, p. 318.) The concluding sentence appears to be somewhat ill placed, for a few lines before the reverend author says, “And Note, that a child baptized with water in the name of the Father and of the Son, and of the Holy Ghost, is sufficiently baptized, although not baptized by a lawful priest, as may be collected from the Rubrick; and so it is if the child be baptized by other form, yet the person baptizing not being a lawful priest is punishable, like as a lawful priest baptizing by other form than is set down by the Book of Common Prayer is punishable;” and a few lines after, he says, that a Clergyman “ought not to bury the corps of any person dying unbaptized:” surely if the baptism of a child by a lay person is good, and the body cannot have Christian Burial without it, there is nothing senseless or irreligious, and we will venture to add nothing morally or legally wrong, in the performance of this provisional ceremony. If there were no other object than to satisfy the anxiety of the mother at a moment when the calmness of her feelings is vitally important, it ought not to be omitted whenever the danger of the child and the absence of a priest appear to render it necessary.