This Rule True even in the Case of a Charity Patient.—This is true, it is believed, even when the patient is a charity patient, and the services are gratuitous. Shiels v. Blackburn (1 H. Blacks., 159). For any other rule less strict might entail the most serious consequences. Ordronaux, “Jur. of Med.,” 13 and 14, citing Inst., lib. 3, 26, 11; Pothier, “Du Contrat Mandat,” Chap. I., § 4.
Elements of the Contract Between Physician and Patient.
Duties of Physician.—When the relations between physician and patient are not defined otherwise by express contract, the implied contract is, and the law presumes, that the physician contracts, first, to use the necessary care and attention; second, to use the necessary skill; third, in case the physician furnishes his own medicines (and the obligation to furnish them would probably be imposed, if it was the custom of the school or class of physicians to which the particular physician belonged to do so), that the medicines are proper and suitable. As a corollary of these duties it necessarily follows, also, that the physician contracts that the instruments or appliances which he uses are free from taint or contagion, and are suitable and proper for the uses to which they are put. Upon this theory an action could be maintained against a physician for using impure vaccine.
Duties of Patient.—The patient on his part contracts, first, to give the physician information concerning the facts and circumstances of the case, and full opportunity to treat him properly; second, to obey his instructions and follow his directions, and, third, to pay him the reasonable worth and value of his services. The different branches of this contract are reciprocal. The failure of either party to fulfil the obligation of any one of them which is imposed upon him, would bar him of his remedies against the other party to recover damages for any breach, or any proximate result of his breach, of such obligations. The necessary care and attention required of the physician in such a case are measured by the requirements of the case and the physician’s duties to his other patients, modified, however, by the rule that the physician is presumed to know, at the time he takes up the case, the condition and situation of his other patients at that time. Consequently, if those who have first employed him are so situated at the time that his services for them are likely to be soon and continuously required, he cannot without making himself liable in damages undertake another case and then neglect it, but he should either decline to take it, or should with the full knowledge and consent of the patient make provision for the temporary substitution of some other physician, during the time that his prior obligations engross his attention. Nevertheless, if the situation and condition of those to whom he has first contracted his services is such that he had, although he exercised due professional knowledge and skill, no reason to apprehend that these patients would need his exclusive service, and by a sudden development, arising from those occult causes which obtain in all serious diseases and injuries, any of his prior patients suffer a sudden and dangerous relapse, or from an accession of new and dangerous symptoms and conditions so that he must fly to their aid, he would not be liable to another patient, to whom he had afterward contracted his services, for neglecting his case; still he should in such instances use extra means to obtain the services of some other and equally skilful man.
Only Ordinary and Usual Skill Required.—The degree and character of necessary skill contracted for has been variously defined by the courts. When malpractice is discussed, a more extended consideration of this matter will be required. At present the doctrine laid down in Shearman and Redfield on “Negligence,” paragraphs 433-435, may be adopted. It is as follows:
“Although a physician or surgeon may doubtless by express contract undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected it must be expressly stipulated for.... The general rule, therefore, is, that a medical man, who attends for a fee, is liable for such want of ordinary care, diligence or skill on his part as leads to the injury of his patient. To render him liable, it is not enough that there has been a less degree of skill than some other medical man might have shown, or a less degree of care than even himself might have bestowed; nor is it enough that he himself acknowledged some degree of want of care; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result.... But a professed physician or surgeon is bound to use not only such skill as he has, but to have a reasonable degree of skill. The law will not countenance quackery; and although the law does not require the most thorough education or the largest experience, it does require that an uneducated, ignorant man shall not, under the pretence of being a well-qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations. If the practitioner, however, frankly informs his patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.”[164]
Average Standard of Skill of any Professed School must be Attained.—It is also a rule that one who professes to adhere to a particular school must come up to its average standard, and must be judged by its tests, and in the light of the present day. Thus a physician who would practise the reckless and indiscriminate bleeding which was in high repute not very many years ago, or should shut up a patient in fever and deny all cooling drinks, would doubtless find the old practice a poor excuse for his imbecility. So, if a professed homœopathist should violate all the canons of homœopathy, he would be bound to show some very good reasons for his conduct, if it was attended with injurious effects. Upon many points of medical and surgical practice all of the schools are agreed, and indeed common sense and universal experience prescribe some invariable rules, to violate which may generally be called gross negligence. Yet the patient cannot justly complain if he gets only that quality and kind of service for which he bargains. If he employs a cheap man, he must expect cheap service. Puffendorf, in his “Law of Nature and Nations,” observes: “We read a pleasant story of a man who had sore eyes and came to a horse-doctor for relief. The doctor anointed his eyes with the same ointment he used among his horses, upon which the man falls blind, and the cause is brought before the judge, who acquits the physician. For if the fellow, says he, had not been an ass he had never applied himself to a horse-doctor.” See also Jones on Bailments, 100; 1 Field’s “Lawyers’ Briefs,” sub. Bailments, Sec. 573; Musser v. Chase, 29 Ohio St., 577; Lanphier v. Phipos, 8 Carr. & Payne, 478.
Degree of Care and Skill Used a Question of Fact.—In an action at law, whether brought by a physician to recover for his services, or by a patient to recover for malpractice or neglect, it is always a question of fact, to be determined by the jury under proper instructions as to the measure of care and skill required, whether or not the physician has in a given case used that degree of care and displayed that amount of skill which might reasonably be expected of a man of ordinary ability and professional skill. These same rules apply to the surgeon. He must possess and exercise that degree of knowledge and sense which the leading authorities have announced, as a result of their researches and experiments up to the time, or within a reasonable time before, the issue or question to be determined is made.[165]
Rule in Leading Case of Lanphier v. Phipos.—In the case of Lanphier v. Phipos, 8 C. & P., 478, already cited, Chief Justice Tyndall enunciated the rule as to the degree of skill required of a physician or surgeon, which has been followed by all the courts since then. He 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, if he is an attorney, undertake at all events to gain the cause, nor does a surgeon undertake that he will perform a cure; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable and competent degree of skill. And in an action against him by a patient, the question for the jury is whether the injury complained of must be referred to a want of proper degree of skill and care in the defendant, or not. Hence he is never presumed to engage for extraordinary skill, or for extraordinary diligence and care. As a general rule, he who undertakes for a reward to perform any work is bound to use a degree of diligence, attention and skill, adequate to the performance of his undertaking; that is, to do it according to the rules of the art; spondet peritiam artis. And the degree of skill arises in proportion to the value and delicacy of the operation. But he is in no case required to have more than ordinary skill, for he does not engage for more.”
Physician Must Instruct Patient how to Care for Himself, etc.—A corollary of these rules is, that the physician must give proper instruction to his patient how to take care of himself, how to manage a diseased or injured member, when and how to take any medicines that may be prescribed, what diet to adopt, and that in case the physician fails to give these instructions he is liable for any injuries that result from this failure. Carpenter v. Blake, supra.