R. Vashon Rogers

“ All science is the result of a voyage of exploration, and the science of medicine can hardly be said to have yet reached the shore. Men must be guided therefore by what is probably true, and are not responsible for their ignorance of the absolute truth which is not known. If a medical practitioner resorts to the acknowledged proper sources of information—if he sits at the feet of masters of high reputation and does as they have taught him—he has done his duty, and should not be made answerable for the evils that may result from errors in the instruction which he has received. ”

“ It matters not whether the individual consulted be the President of the College of Surgeons, or the humblest bone-setter of the village; but, be it one or the other, he ought to bring into the case ordinary skill and diligence. I am of opinion that if a person who has ever so much or so little skill sets my leg and does it as well as he can and does it badly, he is excused; but, suppose the person comes drunk, and gives me a tumbler full of laudanum, and sends me into the other world, is it not manslaughter? ”

“ His diagnosis may be faulty, his medicines ill-selected, or ill-timed in their administration, and still no blame be incurred by him for any evil consequences that may ensue. For who will presume to say, in case of the patient’s death, that he had not naturally reached that last illness foreordained to all men, and of which the physician’s unsuccessful treatment is only official testimony? Who knows, in fact, when a man has reached his last illness until he dies? ”

“ 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 ”

“ While on the part of every medical practitioner the law implies an undertaking that he will use an ordinary degree of care and skill in medical operations, and he is unquestionably liable for gross carelessness or unskilfulness in the management of his patients, still the person who employs a botanic practitioner has no right to expect the same kind of treatment or the same kind of medicine that a regular physician would administer. The law does not require a man to accomplish more than he undertakes, nor in a different manner from what he professes. ”

“ It is the duty of a patient to co-operate with his medical adviser, and to conform to the necessary prescriptions; and if, under the pressure of pain, he does not, or, if by refusing to adopt the remedies of the physician, he frustrates the latter’s endeavours, or, if he aggravates the case by his own misconduct, he cannot charge against the physician the consequences due distinctively to himself; for no one can take advantage of his own wrong. In such a case, even if the physician’s treatment was objectionable, he can only recover nominal damages ”

“ It is not necessary that the physician should have made the particular disease involved in the enquiry a specialty; medical men of practice and experience are experts, and their opinions are admissible in evidence upon questions that are strictly and legitimately embraced in their profession and practice. If one has made the matter in question a specialty, doubtless his opinion will be of more value than if he has not; and it has been said, that one who has devoted himself exclusively to one branch of his profession cannot give evidence as an expert on another (277) . ”

“ In the absence of any statutes, therefore, limiting the common law right to practise medicine inherent in every person, the term physician may there be applied to any one who publicly announces himself to be a practitioner of the art and undertakes to treat the sick, either for or without reward. The common law knows nothing of systems or schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer Doctor, Indianopathist, Clairvoyant Doctor and regular physician are alike. ”

“ 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 ”

“ Purchasers have to trust to a druggist. It is upon his skill and prudence they must rely. It is his duty to know the properties of his drugs, to be able to distinguish them from one another. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another; and so that, when a prescription is presented to be made up the proper medicine, and none other, be used in mixing and compounding it. ”

“ In the United States, the common law doctrine, which favours the right of every man to practise in any profession or business in which he is competent, prevails to a great extent; and medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This was also the doctrine of the civil law, which drew no barriers around either law or medicine. Any one who pleased might practise them without any previous qualification; subject always to responsibility for injury inflicted upon others. ”

“ 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. ”

“ The question whether the physician possessed adequate skill, and exercised adequate care, is, in a case of malpractice, for the jury to decide. Theoretically, and we may add, literally, the jury have the unquestioned right to decide every controverted fact, even if its decision may involve the most abstrusively difficult and uncertain questions in the regions of scientific enquiry. But it is for the Judge to determine whether there is or not such evidence as ought reasonably to satisfy the jury that the fact sought to be proved is established. ”

“ 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. ”

“ Nothing is required (in the absence of any statutory provision to the contrary) to entitle any one to give evidence as a medical witness, than that he has been educated in the science of medicine; and this he may be by study without practice, or by practice without study; it is not necessary that he should be a physician, or have studied for one, nor be a graduate, nor one licensed to practise, nor need he be or have been a practitioner (275) . ”

“ 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. ”

“ Medical authors, like writers in other departments of science, have their various and conflicting theories, and often defend and sustain them with ingenuity. But as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when, perhaps, the same opinion may have been vigorously contested, and, perhaps, triumphantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to Court or jury. ”

“ While the Court, or Judge, determines the competency of the witness to testify as an expert, the weight to be accorded to his testimony is for the jury to decide. The testimony of an expert is to be weighed and tested like any other kind of evidence, and is to receive just such credit as the jury may think it entitled to. ”

“ If the death of a man has been accelerated by the want of due skill and competency, or by the carelessness, of his physician, the latter cannot defend himself by proving that his patient was afflicted with a mortal disease (220) . If a man who has received a serious wound is placed under the charge of a surgeon who, in probing the wound or otherwise operating on the patient, immediately causes his death; then, if the surgeon has acted negligently, or maliciously, he is indictable for the homicide, and the original assailant only for an attempt. ”

“ A dentist cannot be properly denominated a ‘mechanic.’ It is true that the practice of his art requires the use of instruments for manual operations, and that much of it consists in manual operations; but it also involves a knowledge of the physiology of the teeth, which cannot be acquired but by a proper course of study, and this is taught by learned treatises upon the subject, and as a distinct though limited part of the medical art, in institutions established for the purpose. ”

“ 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. ”

“ The physician is always allowed discretionary powers over the patient entrusted to his care in modes of treatment, so as to be able to alter them according to the varying necessities of the case. Unless such change of treatment involves a risk of life or consequences of which he is unwilling to assume the responsibility, he is not under obligation to give notice or obtain permission before making it. Particularly is this the case where the patient is not at home or among friends or relatives, but is in some degree in his custody and under his exclusive supervision, as well as care. ”

“ 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 ”

“ This doctrine, that if any one dies under the hand of an unlicensed physician, it is felony, is apochryphal and fitted, I fear, to gratify and flatter doctors and licentiates in physic; though it may have its use, to make people cautious and wary how they take upon themselves too much, in this dangerous employment.” Hullock, B., remarked that it would be most dangerous for it to get abroad that if an operation should fail the surgeon would be liable to be prosecuted for 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 ”

“ Tindal, C.J., in summing up to the jury in an action for improper treatment to a hand and wrist, whereby the plaintiff lost the use of her hand, well said, “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is a surgeon, that he will perform a cure, nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill.” ”