profession, it is immaterial how high his standing may be. He is liable for the want of it. If, moreover, possessing skill, he undertakes to heal a wound or cure a disease, and through his neglect the party is not cured, or is impaired in health by the treatment, he is also responsible. Behold the two horns of the dilemma which threaten the physician! If he has skill, and neglects to employ it, he is liable in damages; if he has not skill, he is equally liable. The injured party may bring his action to recover for damages resulting from both, and recover, on proving damages resulting from either.
Once having incurred the liability, it sticks like a leech. Retiring from the case is of no avail to shield him against the results of his prior negligence or malpractice. Nor will neglect to send in a bill. Such failure might reasonably be interpreted as an admission of neglect, and as an evidence of consciousness on the part of the physician that he was not entitled to pay, and that his services were worthless. It has been held also that it is no defense that the services were rendered gratuitously.
This liability is, for the most part, a civil one, and redress can be measured by a monetary standard. If, however, the patient die, and his death is presumptively owing to the treatment received and caused by it, criminal proceedings may be instituted against the doctor, and in such cases the charge of criminal malpractice is not infrequently preferred. Now, the practitioner may never actually have had that malicious or criminal intent which is an essential element of a crime; but, if he has been guilty, for instance, of gross rashness, gross ignorance, gross negligence, or the most criminal inattention, the law very properly infers such criminal intent, and the physician finds himself held for manslaughter. In England the law is, "If one, whether a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and sufficient attention; and, if he cause the death of the other through a gross want of either of these, he will be guilty of manslaughter." There is nothing unsound in that doctrine.
The physician does not, however, contract for freedom under all circumstances from errors of judgment. The man who possesses ordinary skill is presumed to have ordinary good judgment, and, if it be fairly and conscientiously exercised, and the case is one of reasonable doubt and uncertainty, any errors and mistakes are upon employers alone.
Such is the law in New York. In Maine, however, not so very long ago, a verdict of heavy damages against a physician for alleged malpractice in a case of amputation was sustained on appeal. The Court, nevertheless, expressly admitted that the verdict was found against the defendant on the ground of his error of judgment in not
- 60 Barb. New York, 508. This is a leading case on the subject of malpractice, and the writer has made frequent annotations therefrom.
- 47 New York, 186.