The Law and Medical Men

by R. Vashon Rogers

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 ([134]).

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 ([135]).

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 ([136]). 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 |62| 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 ([137]).

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 ([138]).

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 ([139]).

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 |63| 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 ([140]).

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 ([141]). 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 ([142]). 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 |64| 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 ([143]).

A sign or other proof that one actually practises physic or surgery is prima facie evidence of his professional character ([144]). 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 ([145]).

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 ([146]).