If, in the absence of a medical man, a non-professional person is called in to assist a person taken suddenly sick, such amateur is not liable for special or slight negligence, |65| that is for the lack of that diligence and skill belonging to a professed physician; but he is liable for gross negligence (the culpa lata of the Latinists), that is, the lack of the diligence and skill belonging to ordinary unprofessional persons of common sense; while, as we have seen, the physician is liable for slight negligence (culpa levis), if he either undertakes the case without the ordinary qualifications of a physician under such circumstances, or manages it without the ordinary skill of such a physician ([147]).
If a physician treats a patient without being requested so to do, he is held to a more strict account than in ordinary cases. In one instance, a medical man administered physic to a slave without the owner’s consent, and the court held him responsible for all the evil consequences which resulted ([148]); and this rule is still more rigidly enforced when the volunteer by his officiousness excludes a competent practitioner who would have been otherwise obtainable. If one who is not a regular medical practitioner professes to deal with the life and health of others, he is bound to have and employ competent skill ([149]).
The mere fact that he renders his services gratuitously, or out of charity, does not free the practitioner from all liability. But, according to some authorities, the attendant in such cases is held to a less strict accountability than when his services are based upon an implied contract, and is liable only for gross negligence ([150]). Amos, in his “Science of Law,” says, “The less the payment made in return for diligence, the less the diligence that is expected; and if no payment at all is made, as little diligence as possible is |66| usually expected, though it may be that some is.” Wharton cannot accept this doctrine from humane and other considerations ([151]). And Ordronaux says that it may be considered as a received principle of law that, a physician, though rendering his services gratuitously, as in hospitals or among the out-door poor, is bound to exhibit the same degree of ordinary skill and diligence in the treatment of a patient as if he were acting under the incentive of a consideration or prospective reward. If he undertakes to execute the trust reposed in him, he is bound to do it well, or else he may be compelled to respond in damages to the party injured by his misfeasance. It is not the consideration which constitutes the foundation of his responsibility, but the fact that in voluntarily accepting the mandate, spondet peritiam artis, indiscriminately to all. He cannot apportion medical skill or his diligence to meet the prospective emoluments flowing out of any given case ([152]).
In a criminal case, Denman, J., told the jury that it made no difference whether a medical man was dealing with a patient or acting as a volunteer, and dealing with a friend or with his own wife ([153]). But Cockburn, C.J., in a case where a patient in a hospital sued two surgeons for injury received from being scalded in a bath, in which he had been placed by the nurses on the orders of the surgeons, said, no doubt persons who went as patients into hospitals were not to be treated with negligence; but, on the other hand, medical gentlemen who gave their services gratuitously were not to be made liable for negligence for which they were not personally responsible. The jury gave a verdict in favour of the doctors ([154]).
If a sick man applies to one, not a physician, for |67| gratuitous medical assistance, and this one either does not exert all his skill, or administers improper medicine to the best of his ability, he is not liable for damage ([155]).
The amount of prudence which a man must exercise in selecting a physician, and the means to be cured, is the same that any prudent and reasonable man would do in any other matter ([156]).
It is the duty of a patient to co-operate with his medical adviser, and to conform to the necessary prescriptions; and if, under the pressure of pain, he does not, or, if by refusing to adopt the remedies of the physician, he frustrates the latter’s endeavours, or, if he aggravates the case by his own misconduct, he cannot charge against the physician the consequences due distinctively to himself; for no one can take advantage of his own wrong. In such a case, even if the physician’s treatment was objectionable, he can only recover nominal damages; and if the injury was due to the patient’s fractiousness and disregard of the doctor’s orders (the latter being judicious), no action at all will lie ([157]).
In Ohio, it was held that, in an action for malpractice in the treatment of a swollen ankle and diseased foot, the Judge had not erred in saying to the jury, “If you find that the defendant directed the plaintiff to observe absolute rest as a part of the treatment to his foot, and that direction was such as a surgeon or physician of ordinary skill would adopt or sanction, and the patient negligently failed to observe such direction, or purposely disobeyed the same, and that such negligence or disobedience approximately |68| contributed to the injury of which he complains, he cannot recover in this action; although he may prove that the defendant’s negligence and want of skill also contributed to the injury. The injured party must not have contributed at all.” The information given by a surgeon to his patient concerning the nature of his malady is a circumstance that should be considered in determining whether the patient, in disobeying the instructions of the surgeon, was guilty of negligence or not ([158]).
The general doctrine of contributory negligence is this, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant’s negligence, he is entitled to recover; if, by ordinary care, he might have avoided it, then he is the author of his own wrong ([159]). The rule is laid down in another case as follows: If it be impossible to separate the injury occasioned by the plaintiff from that occasioned by the neglect of the defendant, the plaintiff cannot recover; if, however, they can be separated, for such injury as the plaintiff may show thus preceded solely from the want of ordinary skill or ordinary care of the defendant, he may recover ([160]).
The patient must exercise ordinary care and prudence; he is not bound to observe the utmost possible caution. And the ordinary care required has been defined to be that degree of care which persons of ordinary care and prudence are accustomed to use and employ under similar circumstances ([161]). In fact the plaintiff must use his own senses ([162]). Still, if he is rash and negligent, and yet the |69| physician has been so very neglectful that ordinary care on the part of the patient would not have prevented the unfortunate result, the plaintiff will be entitled to recover damages ([163]). So, where the doctor’s negligence is the proximate cause of the injury, and that of the patient only the remote cause ([164]). And proximate does not mean the first or nearest in order of time, but the first or nearest in order of cause ([165]).