The implied contract of care: defining negligence and liability in medical jurisprudence

“ A surgeon does not become an actual insurer (123) ; the implied contract is not to cure, but to possess and employ in the treatment of the case such reasonable skill and diligence as are ordinarily exercised by thoroughly educated surgeons; and in judging of the degree of skill and attention required, regard is to be had to the time and place. The law implies that in the treatment of all cases which they undertake medical men will exercise reasonable and ordinary care and diligence ”

“ A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected it must be expressly stipulated for.... The general rule, therefore, is, that a medical man, who attends for a fee, is liable for such want of ordinary care, diligence or skill on his part as leads to the injury of his patient. ”

“ If a physician does not bring to the treatment of an injury or of a disease the ordinary amount of skill possessed by those in his profession, it is immaterial how high his standing may be; if he has skill and does not apply it he is guilty of negligence, and if he does not have it then he is liable for the want of it. When a case of alleged malpractice is before the court, the questions to be considered are: Did the defendant possess the ordinary skill of persons acting as medical men? If he did, was he chargeable in not applying it in the treatment of the patient? ”

“ Contributory Negligence.—In conclusion it should be stated that the patient is bound to follow obediently all proper directions given him by his physician or surgeon, as to his diet, mode of life, time of taking and quantity of medicine to be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent. ”

“ On the other hand, in cases of malpractice, damages for want of ordinary care and skill are recompensed as in any other cases of negligence. They may include loss of time of the patient, inability to earn his living, such sum as the jury thinks is reasonable to be given as a compensation for the extra pain and suffering, and, where the injury is permanent, such further sum as will indemnify the patient for the injury or deformity which he may suffer on account of the defendant’s neglect. ”

“ On this subject the doctrine seems to have been held that whenever one undertakes to cure another of disease or to perform on him a surgical operation, he renders himself thereby liable to the criminal law, if he does not carry to his duty some degree of skill, though what degree may not be clear; consequently, if the patient dies through his ill-treatment, he is indictable for manslaughter. ”

“ Actionable negligence consists in the neglect of the use of ordinary care or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff.
If a person contracts with another to use ordinary care or skill toward him or his property, the obligation need not be considered in the light of a duty; it is an obligation of contract. ”

“ A patient is entitled to the benefit of the increased knowledge of the day. The physician or surgeon who assumes to exercise the healing art is bound to be up to the improvements of the day. The standard of ordinary skill is on the advance; and he who would not be found wanting must apply himself with all diligence to the most accredited sources of knowledge (135) .
Sex is no excuse for negligence; there is no rule of law to the effect that less care is required of a woman than a man. ”

“ He does not, if he is an attorney, undertake at all events to gain the cause, nor does a surgeon undertake that he will perform a cure; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable and competent degree of skill. And in an action against him by a patient, the question for the jury is whether the injury complained of must be referred to a want of proper degree of skill and care in the defendant, or not. ”

“ A physician, when called upon to manage a case, is not required to apply the skill and care which could be applied by the perfect ideal physician, for the reason that from the limitation of the human intellect no perfect ideal physician exists in practice, and, from the limitation of human endurance, no perfect ideal physician, even if he existed, could watch a patient unin­ter­mit­ting­ly. ”

“ The degree of care and skill required to be shown to entitle the physician or surgeon to recover compensation for his services has already been stated to be simply such care and skill as are possessed by the majority of other professional men of the same school of practice at the time, or what is known as ordinary care and skill. ”

“ Change and Advancement in Medical Knowledge also to be Considered.—It should on the other hand be clearly understood that the constant change and improvement which are going on in medical and surgical education, in the discovery of new remedies and new methods of treatment, and in the invention of new instruments, tend constantly to elevate the average skill and intelligence of the profession, and with them the standard by which the courts will determine liability for negligence. ”

“ So also should due weight be given to the advancement of knowledge and education in the world in general, and in the medical profession in particular. In an early English case, one of the judges remarked that not as much knowledge and skill could be expected of a surgeon or physician in a sparsely settled country district as in a city, and that he was at a loss to know what degree of knowledge and skill should be required of such a person. ”

“ It is not true, as we think, to say that if a physician and surgeon has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practises, that would be sufficient. There might be but few practising in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them, and it would not do to say that because one possessed and exercised as much skill as the other, he could not be chargeable with the want of reasonable care and skill. ”

“ To render a medical man liable even civilly for negligence, or want of due care or skill, it is not enough that there has been a less degree of skill than some other medical man may have shown, or a less degree of care than even he himself might have bestowed, nor is it enough that he himself acknowledges some degree of want of care ”

“ Degree of Care and Skill Used a Question of Fact.—In [32] an action at law, whether brought by a physician to recover for his services, or by a patient to recover for malpractice or neglect, it is always a question of fact, to be determined by the jury under proper instructions as to the measure of care and skill required, whether or not the physician has in a given case used that degree of care and displayed that amount of skill which might reasonably be expected of a man of ordinary ability and professional skill. These same rules apply to the surgeon. ”

“ A medical man is liable as well for want of skill, as for negligence, and an injured party may bring his action to recover for damage resulting from ignorance and carelessness, and recover on proving that he sustained damage from either (119) .
Physicians and surgeons have specified duties imposed upon them when they undertake the charge of a patient. Refusing to perform their part of the implied contract will constitute negligence, and for all injury resulting therefrom they will be held accountable. It will constitute a tort for which the law gives damages (120) . ”

“ The failure to use skill, if the surgeon has it, may be negligence; but when the treatment adopted is not in accordance with the established practice, but is positively injurious, the case is not one of negligence, but of want of skill. If the case is a new one, the patient must trust to the skill and experience of the surgeon he calls. So must he if 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. ”

“ Strictly speaking, the term negligence is limited in its application to carelessness in the performance of professional duty; carelessness is its proper synonyme. Duties performed without care, caution, attention, diligence, skill, prudence, or judgment, are negligently performed. Acts are so designated which are performed by one heedlessly, even when there is no purpose to omit the performance of duty. ”

“ In this case, skill and diligence must be considered as indissolubly associated. The professional man, no matter how skilful, who leaves an essential link wanting, or a danger unguarded in the continuous chain of treatment, is guilty of negligence, and if the omission results in injury to the patient, the practitioner is answerable. The quantum of evidence necessary to make out a primâ facie case of negligence is very slight in some cases, while in others a more strict proof is required. Often the injury itself affords sufficient primâ facie evidence of negligence. ”

“ The law punishes negligence no less than want of skill. It is undoubtedly true that the physician is the best judge of the degree of attention which any case requires. Nor is it in the omission to make a given number of visits that negligence resides, but whenever any important step in the treatment of disease is neglected, or any important stage of it overlooked, which might have been used for the benefit of the patient, then it may be averred that the physician has been guilty of negligence, however assiduous he may otherwise have been at different periods of his treatment. ”

“ Gross negligence might be of two kinds; in one sense, where a man, for instance, went hunting, and neglected his patient, |88| who died in consequence. Another sort of gross negligence consisted in rashness, where a person was not sufficiently skilled in dealing with dangerous medicines which should be carefully used, of the properties of which he was ignorant, or how to administer a proper dose. A person who, with ignorant rashness, and without skill in his profession, used such a dangerous medicine, acted with gross negligence. ”

“ If a man knew that he was using medicines beyond his knowledge and was meddling with things above his reach, that was culpable rashness. Negligence might consist in using medicines in the use of which care was required, and of the properties of which the person using them was ignorant. A person who so took a leap in the dark in the administration of medicines, was guilty of gross negligence. ”

“ Success is the only thing that justifies an innovation either in politics or physic.
When it is proved that the physician has omitted altogether the established mode of treatment, and has adopted one that has proved to be injurious, evidence of skill, or of reputation for skill, is wholly immaterial, except to show (what the law presumes) that he possesses the ordinary |72| degree of skill of persons engaged in the same profession. In such a case, it is of no consequence how much skill he may have ”

“ Strictly speaking, these expressions are indicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called 'gross' negligence. If very great care is due, and he fails to come up to the mark required, it is called 'slight' negligence. ”

“ Ordinary negligence may be defined to be the want of ordinary diligence, and slight negligence to be the want of great diligence, and gross negligence to be the want of slight diligence. For he who is only less diligent than very careful men cannot be said to be more than slightly inattentive; he who omits ordinary care is a little more negligent than men ordinarily are; and he who omits even slight diligence fails in the lowest degree of prudence, and is deemed grossly negligent.... ”

“ Hence he is never presumed to engage for extraordinary skill, or for extraordinary diligence and care. As a general rule, he who undertakes for a reward to perform any work is bound to use a degree of diligence, attention and skill, adequate to the performance of his undertaking; that is, to do it according to the rules of the art; spondet peritiam artis. And the degree of skill arises in proportion to the value and delicacy of the operation. ”

“ And if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called 'ordinary' negligence. In each case the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands, and hence it is more strictly accurate, perhaps, to call it simply 'negligence.' And this seems to be the tendency of modern authorities. ”

“ But what if he neglect the care of his soul? I answer: What if he neglect the care of his health or of his estate, which things are nearlier related to the government of the magistrate than the other? Will the magistrate provide by an express law that such a one shall not become poor or sick? Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud and violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful whether he will or no. ”

“ A person who has met with personal injuries must exercise the same degree of care in the employment of a physician and surgeon, and in procuring and submitting to proper medical treatment, as a prudent and reasonable man would in any other matter ”

“ So too any person who undertakes a work likely to cause danger if due care is not taken is liable for damage caused by the carelessness of the servant of an independent contractor, so long as the carelessness is not casual or collateral to the servant’s employment.
In an action of negligence a familiar defence is “contributory negligence.” This is a rather misleading expression. It is not a sufficient defence to show that the plaintiff was negligent, and that his negligence contributed to the harm complained of. ”

“ To constitute contributory negligence in any case there must be a want of ordinary care and a proximate connection between such want of care and the injury complained of; and ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to use under similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. ”

“ It is to be remembered that a physician may be called to prescribe for cases which originated in the carelessness of the patient; and though such carelessness would remotely contribute to the injury sued for, it would not relieve the physician from liability for his distinct negligence and the separate injury occasioned thereby. The patient may also, while he is under treatment, injure himself by his own carelessness ”

“ There is an implied obligation on a man holding himself out to the community as a physician and surgeon, and practising his profession, that he should possess the ordinary skill requisite for reasonable success, and that he should attend to the case with due care (122) . If the patient knows of the practitioner’s want of skill, he cannot complain of the lack of that which he knew did not exist. ”

“ So, if one is employed as a botanic physician, and performs his services with ordinary care and skill, in accordance with the system he professes to follow, that will be regarded as a legal defence to a suit for malpractice. It would show a full |53| compliance with his profession and undertaking, and if injury resulted to the plaintiff he could blame no one but himself (109) .
If a patient has not been deluded by any but himself, and voluntarily employs in one art a man who openly exercises another, his folly has no claim to indulgence. ”

“ Civil Liability for Malpractice.
Any person holding himself out to be a physician or surgeon, or any physician or surgeon, who is guilty of malpractice, is liable for damages, to be recovered in a civil action, instituted by the person injured, or by those having a legal right to such person’s services. ”

“ It must be remembered that the implied liability of a physician or surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care or diligence, in the execution of his |76| employment; and in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence or want of skill in the defendant, will not be entitled to recover even nominal damages (184) . ”

“ The question of the amount of damages for personal injuries arising from malpractice is one resting a good deal in the discretion of the jury, and must of necessity be more or less uncertain. The party must recover all his damages, present and prospective, in one action. If the damages are so excessive as to strike all mankind, at first blush, as beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, corruption, or prejudice, the court will grant a new trial. ”

“ But doctors must not be unreasonable in their charges; as Lord Kenyon remarked, “Though professional men are entitled to a fair and liberal compensation for their assistance, there are certain claims which they affect to set up, which if unreasonable or improper, it is for the jury to control” (21) . That a patient is a millionaire does not justify an extortionate charge. The French rule is to consider the gravity of the disease as well as the fortune and position of the patient in settling the remuneration of a physician (22) . ”

“ It does not depend upon the fortune of the case whether it be good or bad, but upon the skill, diligence and attention bestowed. For, as a general rule, a physician does not guarantee the success of his treatment; he knows that that depends upon a higher power. Still, some good must have resulted from his efforts. The rule appears to be that if there has been no beneficial service there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence (26) . ”

“ It will rarely occur that the surgeon will not have a remedy against his patient, who, if he be rich, must at all events pay; and if poor, the sufferer will be entitled to a compensation from the company, if they by their servants have been guilty of a breach of duty, out of which he will be able to pay, for the surgeon’s bill is always allowed for in damages. ”

“ Criminal Liability for Negligent Malpractice.—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. ”

“ In a subsequent case against the same practitioner, Bayley, B., said to the jury, “I have no hesitation in saying for your guidance, that if a man be guilty of gross neglect in attending to his patient after he has applied a remedy, or of gross rashness in the application of it, and death ensues in consequence, he will be liable to a conviction for manslaughter.” “I consider rashness will be sufficient to make it manslaughter. ”

“ It is a great misdemeanor and offence at common law, whether it arise from curiosity and experiment, or from neglect; because it breaks the trust which the party has placed in the physician, tending directly to his destruction (114) . A medical man who is guilty of gross negligence, or evinces a gross ignorance of his profession, is criminally responsible for the consequences. And one who, by a culpable want of care and attention, or by the absence of a competent degree of skill and knowledge, causes injury to a patient, is liable to a civil action for damages ”

“ 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 ”

“ 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 ”

“ A surgeon who attends a duel, although to save by his skill if possible the lives therein imperilled, will be held guilty of aiding and abetting the principal offender in the event of death ensuing (390) .
If a medical practitioner wilfully injures a patient he is liable to be indicted for an assault, and if death ensue from the injuries so inflicted he may be indicted for murder. And this is so even though the patient might have submitted at the time from the supposition that the treatment was for his good. ”

“ It is no defence, where a death is not shewn to have been produced by the medical attendant’s negligence, that the deceased might have recovered if a higher degree of professional skill had been employed (221) .
If a person is assailed by a fatal disease, and there is no escape from it, save by a dangerous surgical operation, then, if he gives his free and intelligent consent to the operation, and it is skilfully performed, the surgeon cannot be blamed even though the patient perish under the knife. ”