352
The Green Bag,
in using his best judgment to ciear up the doubt, according- to the skill and diligence as is exercised by others in the profession generally, taking into account the advanced state of the profession at the time, he will escape liability. If the doubt or uncertainty grew out of his lack of skill, arising as it were from a want of learning such as is ex ercised by others generally, he would have to answer. It is dollars to doughnuts how ever that if the physician was of the right stripe in the matter of his medical doctrines, that he would be able to have all the expert testimony needed to demonstrate that his treatment was skillful, up to date, and such as conformed to the average judgment of the profession. Locality will often make a difference in the degree of skill to be expected, under the implied contract between physician and pa tient. This is occasioned by the fact that certain places obviously afford better advantages than others. Physicians and sur geons practicing in small towns or rural or sparsely populated districts are bound to possess and exercise, not the same skill as the healer in a city filled with medical schools, hospitals, great doctors and teachers, but at least the average degree of skill pos sessed and exercised by the profession in such localities. This is the same as saying that when a mistake has been made in rural parts, it is not to be measured according to the skill of some smart Alec brought from the city to testify as an expert. Neither is it to be judged, it has been said, from those in the locality who may be quacks, ignorant pretenders of knowledge not possessed by them. It is to be judged by such skill and diligence as are ordinarily exercised in the profession in the locality, excluding smart Alecs from a distance and onacks at home. It goes as a maxim that doctors disagree. Pondering thereupon one wonders how a physician can practice safely anywhere. Why will he not be made a victim continu ally on account of those he fails to cure. Given the emergency one would imagine
that all that need be done would be to call an allopathic physician to demonstrate that homoeopathy is all wrong and vice versa. The law will not however countenance such doctrinal disputes, for the purpose of becom ing the judge of which is right and which is wrong. The law simply says, that a physi cian is not to be tried in the citadel of his enemy, but in the house of his friends. The treatment of a medical person of one school of practice is to be tested by the general doctrines of that particular school and not by those of other schools. If the physician can prove that his treatment, knowledge, care and skill is in accordance with the sys tem he has studied, that is a sufficient de fense. He is not expected and does not have to know all the remedies of all other pathies. This rule seems to have exceptions when it comes to Christian Science healers and Faith curers, but they will likely have no trouble when they can demonstrate their treatment to be a system or school. It is too frequently considered now a method of madness needing the care of an institution. The lack of skill of a physician or his negligence, cannot be excused or'affected by the fees he receives or does not receive. He can not escape liability by refusing to charge. A court has said that if a person holds him self out to the public as a physician he must be held to ordinary care and skill in evencase of which he assumes charge, whether in the particular case he has received fees or not. You can have the physician serve you faithfully with his want of skill. When he presents his bill you can refuse payment, and later on you can sue him for damages his lack of skill brought about. This is all legal, because the courts have said so. The lat ter end of that unskillful, feeless healer is anathema. The liability of a physician is well illustiated in the following case. The plaintiff had been lame for several years. His thigh bone was diseased. An amputation was nec essary to arrest the progress of the disease. The defendant performed two operations
