It is to be remembered that a physician may be called to prescribe for cases which originated in the carelessness of the patient; and though such carelessness would remotely contribute to the injury sued for, it would not relieve the physician from liability for his distinct negligence and the separate injury occasioned thereby. The patient may also, while he is under treatment, injure himself by his own carelessness; yet he may recover of the physician, if he carelessly or unskilfully treats him afterwards, and thus does him a distinct injury ([166]). The burden of proving that the plaintiff’s own negligence contributed to the injury rests upon the defendant ([167]). Evidence that the patient requested the defendant to perform an operation, or do an act, which caused the injury, does not tend to prove contributory negligence, if the injury was not the natural result of such act carefully performed ([168]).
If the patient is insane, and so incapable of co-operating with the physician, contributory negligence is not imputable. And this inability the physician is bound to take into account ([169]). |70|
If the physician has injured the patient by his negligence, the refusal of the patient, or his custodian, to allow an experiment, by another physician, to repair the injury is not contributory negligence, unless he had reasonable assurance of the success of the experiment ([170]).
The practitioner is liable where a patient suffers from his want of ordinary skill and diligence, even though the carelessness of those nursing the patient may have aggravated the case and rendered the ultimate condition of the patient worse than it otherwise would have been. Although this carelessness in nursing may be proved in mitigation of the damages sought against the physician, it will not serve to bar the right of action ([171]). And where two surgeons, who gave their services gratuitously to the sick in a hospital, were sued by one Perionowsky, for maltreatment there by causing him to be placed in a bath so hot that he was scalded and injured, and it was proved that the bath, though ordered by the defendants, was actually administered by the nurses, and that the defendants were not present when it was given, and that it was no part of their duty personally to superintend such things. Cockburn, C.J., in summing up, told the jury that the surgeons would not be liable for the neglect of the nurses unless near enough to be aware of it and to prevent it ([172]). And, in another case, the court held that if a jury were to find that the parents of the patient (a boy) were in charge of and nursed him during his sickness, and that they did not obey the directions of the physician in regard to the treatment and care of their son during such time, but disregarded the same, and thereby contributed to the several injuries of which he complains, he could not recover. If the injuries were |71| the result of mutual and concurring neglect of the parties no action to recover damages therefor will lie ([173]).
The medical man has ofttimes to sail between Scylla and Charybdis. While, on the one hand, he is bound to consult the attainable literature in his profession, and to diligently gather in, for every case he undertakes to treat, the experience of his confreres—for in determining what is negligence, the improvements that are constantly taking place are always considered—at the same time he must not try new modes or methods too readily, lest a Judge say of him, as one said in a surgery case, “It appears from the evidence of the surgeons that it was improper to disunite the callus without consent. This is the usage and law of surgeons. Then it was ignorance and unskilfulness, in that very particular, to do contrary to the rule of the profession what no surgeon ought to have done. For anything that appears to the court, this was the first experiment made with this new instrument; and, if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants (a surgeon and an apothecary), in general, may be as skilful in their respective professions as any two gentlemen in England, yet the court cannot help saying that, in this particular case, they acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons;” (and they had to pay the plaintiff £500 for the damage to his leg) ([174]). Success is the only thing that justifies an innovation either in politics or physic.
When it is proved that the physician has omitted altogether the established mode of treatment, and has adopted one that has proved to be injurious, evidence of skill, or of reputation for skill, is wholly immaterial, except to show (what the law presumes) that he possesses the ordinary |72| degree of skill of persons engaged in the same profession. In such a case, it is of no consequence how much skill he may have; he has demonstrated a want of it in the treatment of the particular case.
The failure to use skill, if the surgeon has it, may be negligence; but when the treatment adopted is not in accordance with the established practice, but is positively injurious, the case is not one of negligence, but of want of skill. If the case is a new one, the patient must trust to the skill and experience of the surgeon he calls. So must he if the injury or disease is attended with injury to other parts, or other diseases have developed themselves, for which there is no established mode of treatment. But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing by his success the propriety and safety of his experiment. This rule protects the community against reckless experiments, while it admits the adoption of new remedies and modes of treatment only when their benefits have been demonstrated, or where, from the necessity of the case, the surgeon or physician must be left to the exercise of his own skill and experience ([175]).
Physicians are not bound to comply with the demands of the public; they may accept or refuse a call: but having accepted, one must continue in attendance upon the case until recovery, unless dismissed, or unless he has withdrawn in a proper way. Even if his services are gratuitous, he must continue them until reasonable time has been given to procure other attendance.
A husband sued a medical man for neglecting to attend |73| his wife, according to agreement, during childbirth, and the jury gave him a verdict of $500; the court considered that the physician had broken his contract and was liable therefor, but reduced the damages to a nominal sum, as, in an action on contract, the husband could not recover for the personal injury and sufferings of the wife ([176]).
If a physician at any time desires to withdraw from a case, he must give such reasonable notice as will enable the patient to obtain assistance elsewhere. He has a right to withdraw at any time, especially with his patient’s consent, but if he insists upon that assent as a shield from liability for any negligence of which he may have been guilty, or for any malpractice committed, the patient may show, if he can, that the consent was obtained by representations that were false; and then the consent will be no protection against liability for damage that had occurred before the consent was given ([177]).