even after assurances of success, would be just and proper. What weight have assurances from a negligent physician? Is there any reason to suppose that, after having broken his implied contract for care and skill, he is in any better condition to observe his express one? But, if the physician guarantees a successful issue out of the trouble, he will be held responsible in case of failure to effect a cure, although, ordinarily, he would not be liable if he had employed such care and skill as were above spoken of.
The discussion of this question of responsibility opens up the ancillary and possibly more interesting one, how far can the physician or surgeon deviate from the established rules of practice without being charged with negligence in case of an injury to the patient arising from such deviation?
An English judge says, "Any deviation renders him liable." This is rather severe, and, if practically applied, would effectually bar progress in the practice of physic and surgery. Every practitioner would be as antiquated as a Galen or Hippocrates, and the sick and diseased would lose all the benefits and improvements which the experience of years and the researches of science furnish. The rule works a hardship. In striving for protection, it causes deprivation. American authorities introduce a modification. If it is shown that physicians or surgeons have applied a different system of treatment and found it to succeed as well as or better than the one prescribed, it is not negligence, so says a New York judge, to resort to the system thus practically tested. In other words, one can not become an experimentalist, except at his peril. If a writer on treatment, or, in the absence of such authority, practical surgeons prescribe certain grooves, in those grooves he must run. But, if others have previously taken the risk and been successful in a new line of treatment, it may be followed with impunity, and will shield the practitioner from the charge of malpractice, provided that the cases in which it was tested were substantially the same as those treated of by the writer or by the practical surgeons, and provided the treatment thus resorted to has been successful to such an extent as to leave no doubt as to the propriety and safety of adopting it. If the case is a new one, the patient must trust to the skill and experience of the physician he calls in. So also must he, when 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. There can not but be some cases when latitude must be allowed the physician in the application of remedies. But, when the diagnosis reveals a disease for which there is a well established method of treatment, the practitioner departs from it at his risk.
This rule is for the best welfare of the community. It protects against reckless experimenting, while it permits the adoption of such
- 2 Espinasse, N. P., 601.