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 ([117]).
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” ([118]). |57| 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 ([119]).
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 ([120]). 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 ([121]).
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 ([122]). 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. |58|
A surgeon does not become an actual insurer ([123]); 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 ([124]). 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 ([125]), nor for an erroneous, though honest conclusion, |59| according to his best light ([126]). 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 ([127]).
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” ([128]). 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” ([129]). 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 ([130]).
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, |60| 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 ([131]).
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 ([132]). 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 |61| 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 ([133]).