removing more than he did of the amputated limb. Such a verdict is tantamount to saying that the physician ought to have known better what course to pursue, and was therefore guilty of ignorance, on which ground it would, perhaps, have been better to base the verdict than on an error of judgment.
Fortunately for the profession, there are some limitations upon its liability. Ordinarily the physician is supposed to possess a familiarity with the characteristics of the dominant disease. As it has been summed up: "His diligence and care will be exercised in watching for and guarding against the numerous accidental influences which, if overlooked, may delay or even prevent the restoration of the patient, such as latent predisposition to certain diseases; a lack of vital or recuperative power in the patient; the effects of melancholy and of other passions of the mind; the effect of the want of pure air and good food; of careful attendance and nursing; the neglect of the patient to follow the physician's advice, or to take the medicines which he prescribes."
A surgeon once, in a case of dislocation of the elbow-joint, replaced the bones and put the arm on a pillow; with the part below the joint at a right angle with that above it, and directed the application of cold water, but omitted to give warning that the arm must remain in that position. Assuming for the moment that such treatment was enough, the Court declared such omission to be culpable negligence on his part. Had he, however, performed his task skillfully, omitting nothing, and then the patient had neglected to comply with his directions, the surgeon's liability would have been limited. For in the case of the sane it is the patient's duty to cooperate with the physician or surgeon, and conform to necessary prescriptions. If he will not, or under pain can not, his negligence is his wrong or misfortune, for which his physician is not responsible.
If the patient's neglect to obey the reasonable instructions of his medical attendant, contributes to the injury complained of in an action for malpractice, he can not recover. Contributory negligence is a good defense, and in this respect the patient is "on all-fours" with the man who is run over while walking on a railroad-track without authority. Neither can recover. While there may have been negligence on the part of the engineer or the doctor, yet, the pedestrian and the patient being equally at fault, no recovery can be had. But, if the patient has neglected to use necessary precautions, because lulled into a sense of security by the doctor, the doctor will be liable. A refusal, however, on the part of the patient, to prevent an attempt to remedy the injury already caused by malpractice, does not necessarily preclude a recovery, if the refusal was made without reasonable assurance that the attempt would be successful. And it would seem that refusal,
- 22 Pennsylvania Statutes, 261, 7 Phil., 138.
- 25 Ohio Statutes, 86.
- 68 Pennsylvania Statutes, 168.