While it is quite competent for a physician and his patient to make any agreement they think fit, limiting the attendance to a longer or shorter period, or to a single visit; and while, if there is no such limitation, the physician can discontinue his attendance at his own pleasure, after giving reasonable notice of his intention to do so; yet, if he is sent for at the time of an injury by one whose family physician he has been for years, the effect of his responding to the call will be an engagement to attend upon the case so long as it requires attention, unless he gives notice to the contrary, or is discharged by the patient; and he is bound to use ordinary care and skill, not only in his attendance but in determining when it may be safely and properly discontinued ([178]). Ordronaux says a physician cannot |74| abandon a case without due notice. To do so would constitute negligence of a grave character, and render him answerable for all injury sustained by the patient in consequence thereof. The contract is for the performance of a service of indefinite duration, and usually without stipulation for its continuance during any particular period. It is plainly a fraud upon the employer to abandon or neglect discharging the trust after having accepted it, for the acceptance constitutes a promise, and a promise is a good foundation upon which to rest a legal obligation. If the physician retires from it, he can only do so by placing the employer in as good circumstances as he found him, and by giving due notice of his intention ([179]).
A medical man is liable to a civil action for injury resulting to a patient from his negligence or unskilful treatment, although the patient neither employed nor was to pay him. As Baron Parke said: “If an apothecary administers improper medicines to his patient, or a surgeon unskilfully treats him, and thereby injures his health, he will be liable to the patient, even where the father or friend of the patient may have been the contracting party with the apothecary or surgeon; for, though no such contract had been made, the apothecary, if he gave improper medicines, or the surgeon, if he took him as a patient and unskilfully treated him, would be liable to an action for a misfeasance” ([180]). And as Richards, C.B., said: “From the necessity of the thing, the only person who can properly sustain an action for damages for an injury done to the person of a patient, is the patient himself, for damages could not be given on that account to any other person, although the surgeon may have been retained and employed by him to undertake the case” ([181]); and in this same case, which was an |75| action brought by a husband and a wife for an injury done to the wife, Garrow, B., said; “In the practice of surgery, the public are exposed to great risks from the number of ignorant persons professing a knowledge of the art, without the least pretensions to the most necessary qualifications, and they often inflict very serious injury on those who are so unfortunate as to fall into their hands. In cases of the most brutal inattention and neglect, the patients would be precluded frequently from seeking damages by course of law, if it were necessary to enable them to recover, that there should have been a previous retainer, on their part, of the person professing to be able to cure them. In all cases of surgeons retained by any public establishments, it would happen that the patient would be without redress, for it could hardly be expected that the governors of an infirmary should bring an action against the surgeon employed by them to attend the child of poor parents, who may have suffered from his negligence and inattention” ([182]).
As in the case of an attorney, so with a physician, it is not every mistake or misapprehension that will make him liable to an action for negligence. There is scarcely a case in which a physician is called in, in which he may not be charged with culpa levissima, or the omission to ward off every possible casualty; and if culpa levissima makes him liable, then his liability becomes almost co-extensive with his practice. He is only responsible for culpa levis ([183]).
It must be remembered that the implied liability of a physician or surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care or diligence, in the execution of his |76| employment; and in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence or want of skill in the defendant, will not be entitled to recover even nominal damages ([184]).
The question whether the physician possessed adequate skill, and exercised adequate care, is, in a case of malpractice, for the jury to decide. Theoretically, and we may add, literally, the jury have the unquestioned right to decide every controverted fact, even if its decision may involve the most abstrusively difficult and uncertain questions in the regions of scientific enquiry. But it is for the Judge to determine whether there is or not such evidence as ought reasonably to satisfy the jury that the fact sought to be proved is established. As Lord Cairns once put it, “The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred, the jury have to say whether from these facts, when submitted to them, negligence ought to be inferred.” It is for the Judge to say whether the case should or should not be submitted to the jury; and the rule is imperative that it should not be, unless the evidence be such that therefrom the negligence charged may be reasonably inferred ([185]).
Judges are generally desirous of impressing on juries the necessity of construing everything in the most favourable way for the defendant, when such actions are brought against a surgeon. “It is notorious there are many cases in which jurors are not the most dispassionate or most competent persons to try the rights of parties, and an action of this kind (i. e., against a surgeon for malpractice) comes within this class. In such actions the Judge should |77| firmly assume the responsibility of determining himself whether sufficient evidence has or has not been given to compel him to leave the case to the jury” ([186]).
Medical writers speak strongly against such actions. One says, “In the majority of cases these actions are the direct offspring of envy, hatred, malice and all uncharitableness, and when, rocked in the cradle of calumny and nursed by the hand of speculation, injury is often inflicted upon the character of the physician, who is at the same time left without any proper remedy at law. The effect, also, of such suits upon the public mind is apt to be pernicious, for success in obtaining damages often stimulates others into a repetition of the experiment, and the physician consequently practises his art in chains, being perpetually exposed to the risk of a suit, which may ruin his reputation as well as his fortune. It becomes lawyers, therefore, to consider, when called upon to institute such suits, that little value can be placed on the ipse dixit of a layman sitting as critic upon the professional conduct of a physician. And that, aside from such personal delinquencies as drunkenness, or gross negligence, cruelty towards, or abandonment of his patient, the field in which the physician discharges his professional duties is practically terra incognita to the unlearned, and one where no lay critic can follow him” ([187]).
The same critic points out that the majority of suits for malpractice have been brought against surgeons and not against physicians. “Failure is rarely excused in a surgeon. He is expected to be an adroit medical carpenter who, with knife and saw and splint, can so re-construct the fractured or disjointed members of the human body as to leave no mark or line as evidence of their previous |78| disruption. On the other hand, the physician, enshrined within the penetralia of his mystic art, and mounted upon a Delphic tripod, inaccessible to vulgar criticism, pronounces his diagnosis and formulizes his prescriptions with unquestioned judgment. His diagnosis may be faulty, his medicines ill-selected, or ill-timed in their administration, and still no blame be incurred by him for any evil consequences that may ensue. For who will presume to say, in case of the patient’s death, that he had not naturally reached that last illness foreordained to all men, and of which the physician’s unsuccessful treatment is only official testimony? Who knows, in fact, when a man has reached his last illness until he dies? * * * And, as a corollary to this, strange as it may seem, one might, through unskilfulness, sacrifice a human life with more impunity than he could mutilate or deform a toe or a finger” ([188]).
The question of the amount of damages for personal injuries arising from malpractice is one resting a good deal in the discretion of the jury, and must of necessity be more or less uncertain. The party must recover all his damages, present and prospective, in one action. If the damages are so excessive as to strike all mankind, at first blush, as beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, corruption, or prejudice, the court will grant a new trial. Sometimes, however, courts have granted new trials for excessive damages where the excessiveness has fallen short of this.
In considering what should be taken into account by a jury estimating the amount of damages to be awarded, the American courts have held, that the loss of time caused by the injury is to be considered ([189]). Also, the age and |79| situation in life of the injured one, the expenses incurred, the permanent effect upon the plaintiff’s capacity to pursue his professional calling, or to support himself as beforetimes, are essential factors ([190]).