Bodily pain, too, is to be considered and compensated for; and so much of mental suffering as may be indivisibly connected with it; but mental anguish and agony cannot be measured by money—the courts consider—and there is no established rule authoritatively commanding such a futile effort ([191]). In fact, the courts say, that one should get compensation for all the injuries that are the legal, direct, and necessary results of the malpractice ([192]).
The late case of Phillips v. The South Western Railway Company fully enunciates what, in the estimation of the English Judges, are to be considered in fixing the damages. Cockburn, C.J., said, that the heads of damages were the bodily injuries sustained, the pain undergone, the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent, the expenses incidental to attempts to effect a cure, and the pecuniary loss sustained through inability to attend to a profession or business ([193]). In the Court of Appeal, Bramwell, L.J., remarked, “You must give the plaintiff a compensation for his pecuniary loss, you must give him compensation for his pain and bodily suffering. Of course, it is almost impossible to give an injured man what can be strictly called compensation, but you must take a reasonable view of the case, and must consider, under all the circumstances, what is a fair amount to be awarded to |80| him” ([194]). Phillips, who was a physician of middle age and robust health, making £5,000 a year, was so injured by a railway company, that he was totally unable to attend to his business; his life was a burden and a source of utmost pain, and the probability was that he would never recover. The jury gave him £16,000, and the court refused to consider it excessive.
A physician, who has received personal injuries, may recover damages for loss of business as a physician, although he has not such a degree as would entitle him to maintain an action for professional services ([195]). The value of the fees which he would have received without suit may be estimated.
An action cannot be maintained against the representatives of a deceased surgeon to recover damages arising from the unskilful treatment of a patient. Such actions do not survive ([196]).
A medical practitioner who causes the death of a patient by such malpractice or negligence as would have entitled the patient (if death had not ensued) to maintain an action and recover damages against him in respect of the injury sustained thereby, is liable to an action for damages, notwithstanding the death of the patient, and although the circumstances under which the death was caused amount to felony. Such action may be brought for the benefit of the wife, husband, parent and child of the deceased, and the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such |81| action is brought; but such injury must be a pecuniary loss, and the jury may not give damages as a solatium ([197]). In some of the American cases the mental anguish caused by the injury has been taken into account in estimating the damages to be given ([198]).
Not more than one action, however, will lie for and in respect of the same subject-matter of complaint, and every such action must be commenced within twelve months after the death of the person injured.
CHAPTER VI. CRIMINAL MALPRACTICE.
Whenever death ensues as the alleged consequence of malpractice it becomes necessary to inquire into the conduct of the physician, so as to determine how far his want of skill, or negligence, has conspired to produce it. The offence may, under certain circumstances indicating a wanton and malicious disregard of human life, amount to murder. Of course, a medical practitioner who should intentionally, and with malice, cause the death of a patient, would be held guilty of this crime; but in no case will an indictment for murder lie, unless there be a felonious destruction of life, with malice either express or implied. If a patient die from want of competent skill or sufficient attention the practitioner is guilty of manslaughter ([199]). “If one that is of the mystery of a physician take upon him the cure of a man, and giveth him such physic so as he dieth thereof, without any felonious intent and against his will, it is no homicide.” So saith my Lord Coke. Blackstone says, “This is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally.” On the one hand, we must be careful and most anxious to prevent people from tampering in physic so as to trifle with the life of man; and on the other hand, we must take care not to charge criminally a person who is of general skill because he has been unfortunate in a particular case. It is God who gives, man only administers, medicine; and the medicine |83| that the most skilful may administer may not be productive of the expected effect; but it would be a dreadful thing if a man were to be called in question, criminally, whenever he happened to miscarry in his practice. It would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck ([200]).
At one time it was held, that if one, not a regular physician or surgeon, should administer a medicine or perform an operation with a fatal effect, it would be manslaughter at the least; but long since, by Sir Matthew Hale, (one of the greatest Judges that ever adorned the English Bench), this doctrine was questioned ([201]). Now, however, both in England and America, it is well settled that it makes no difference whether the party be a regular practitioner or not; if he, bona fide and honestly exercising his best skill to cure a patient, performs an operation or administers a medicine which causes the patient’s death he is not guilty of manslaughter. “God forbid,” saith Lord Hale, “that any mischance of this kind should make a person not licensed, guilty of murder or manslaughter. This doctrine, that if any one dies under the hand of an unlicensed physician, it is felony, is apochryphal and fitted, I fear, to gratify and flatter doctors and licentiates in physic; though it may have its use, to make people cautious and wary how they take upon themselves too much, in this dangerous employment.” Hullock, B., remarked that it would be most dangerous for it to get abroad that if an operation should fail the surgeon would be liable to be prosecuted for manslaughter. And as to making a difference between regular and irregular practitioners the same learned Judge aptly put it, “in remote parts of the country many persons would be left to die if |84| irregular surgeons were not allowed to practise.” Or as another Judge put it, we should have many of the poorer sort of people die for want of help, lest their intended helpers might miscarry ([202]).
Lord Lyndhurst agrees with the rule, but makes an exception. He says, “I agree that in these cases there is no difference between a licensed physician or surgeon and a person acting as a physician or surgeon without a license. In either case if a party having a competent degree of skill and knowledge makes an accidental mistake in the treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person, totally ignorant of the science of medicine, takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter.” Webb, a publican, had given large doses of Morrison’s pills to one ill of small-pox ([203]).