Malpractice

“ 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. [6]
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. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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. ”

“ And on the other hand the profession has just been startled by a verdict against a physician, ruinous in its amount,—enough to drive many a hard-working young practitioner out of house and home,—a verdict which leads to the fear that suits for malpractice may take the place of the panel game and child-stealing as a means of extorting money. ”

“ 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. ”

“ But when, in an action against a physician for malpractice, the patient testifies as to the manner of treatment, the physician is then at liberty to introduce the testimony of himself or another physician as to the facts thus put in issue by the patient. ”

“ And that, aside from such personal delinquencies as drunkenness, or gross negligence, cruelty towards, or abandonment of his patient, the field in which the physician discharges his professional duties is practically terra incognita to the unlearned, and one where no lay critic can follow him” (187) .
The same critic points out that the majority of suits for malpractice have been brought against surgeons and not against physicians. “Failure is rarely excused in a surgeon. ”

“ Part of the answer is that the insurance companies are scaring many doctors with spectres of litigation volume that simply does not exist.
Malpractice cases filed and actual payments in constant dollars have been level for many years; about nine of ten malpractice harms do not result in any law suits being filed, according to various studies. Yet the human toll is deadly. A Harvard study estimated that gross malpractice just in hospitals takes 80,000 American lives a year plus causing hundreds of thousands of serious injuries. ”

“ The various contentions concerning the alleged want of liability on the part of the defendant as the result of any asserted malpractice on the part of the surgeon or surgeons who operated upon the plaintiff, we are of opinion, are likewise devoid of all merit. The correctness of this conclusion is adequately demonstrated by a consideration of the text of the charge given by the court to the jury on the subject. ”

“ They shall teach their students how to defend themselves against mental malpractice, but never to return evil for evil; never to attack the malpractitioner, but to know the truth that makes free, — and so to be a law not unto others, but themselves. ”

“ As to the malpractice claim, the trial court held that the railroad would not be liable for any negligence on the part of Dr. Leigh, the physician it furnished petitioner. We need not pass on this issue, however, since we find no evidence sufficient to support a malpractice recovery. Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. ”

“ A man of glib tongue and imposing appearance, professes to be a physician. He takes up his residence in one of our suburban districts, and, in process of time, is guilty of gross malpractice. To avoid an exposure of his ignorance and cruelty, he pays the injured parties $1200 and removes to another part of the country. ”

“ It is not necessary, in order to sustain an action against him for malpractice, that there should be proof of gross culpability on his part. He is on the same footing, and subject to the same degree of liability, as any other person who is engaged in the performance of services requiring skill and care. ”

“ The malpractitioners know this better than all others, but are the soonest to deny it. Had they abided by our teachings, they could never have traduced our system by a malpractice, and so exchanged metaphysics for mesmerism. For the last ten years we have had no rest, and with unremitting toil have not had sufficient time to do the good we desired, much less to be busy in wrong-doing. The entire object of our labors since we entered this field has been to relieve and to prevent suffering, never to produce it; and learning to do one, we unlearn the other. ”

“ The only evidence that can decide a case of malpractice is expert evidence: that is, the evidence of other doctors; and every doctor will allow a colleague to decimate a whole countryside sooner than violate the bond of professional etiquet by giving him away. It is the nurse who gives the doctor away in private, because every nurse has some particular doctor whom she likes ”

“ Few physicians amongst us are eminent for their skill. Quacks abound like Locusts in Egypt, and too many have recommended themselves to a full Practice and profitable subsistence. This is the less to be wondered at, as the Profession is under no Kind of Regulation. Loud as the call is, to our Shame be it remembered, we have no Law to protect the Lives of the King's Subjects from the Malpractice of Pretenders. Any man at his Pleasure sets up for Physician, Apothecary and Chirurgeon. No candidates are either examined or licensed, or even sworn to fair practice. ”

“ 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. ”

“ Generally, doctors are encouraged by society's expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. ”

“ Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened ”

“ Another standard, currently popular in malpractice law, requires the practitioner to reveal the information that reasonable persons would wish to know in order to make a decision regarding their care. ”

“ Perverting the best method brings out the worst, even its opposite. It is not generally understood how to prevent the bad effects of mesmerism, or known what is producing these effects. If the right mental practice can restore health, as is proven beyond a question, it is self-evident that the malpractice can impair the health of those ignorant of the cause and how to treat it. But whoever attempts this malpractice will destroy his ability in metaphysics. ”

“ Why in the world would some physicians be willing tools of the insurance companies who are gouging them regardless of whether they are competent, caring doctors or the negligent, incompetent few who account for most of the claims by injured patients? ”

“ So we accepted Bill’s offer, and strikes out for Washington.
“Says I to Andy, when we get located at a hotel on South Dakota Avenue, G. S. S. W. ‘Now Andy, for the first time in our lives we’ve got to do a real dishonest act. Lobbying is something we’ve never been used to; but we’ve got to scandalize ourselves for Bill Humble’s sake. In a straight and legitimate business,’ says I, ‘we could afford to introduce a little foul play and chicanery, but in a disorderly and heinous piece of malpractice like this it seems to me that the straightforward and aboveboard way is the best. ”

“ A second duty is that of proper diligence in treating every single case. Many a patient suffers injury to health or even loses his life in consequence of a Doctor’s neglect. Gross negligence is an offence that makes him punishable by the court, if it results in serious injury. But even if such injury cannot be juridically proved, or has been accidentally averted, the moral wrong remains and is to be settled with the all-seeing Judge. Still, in ordinary ailments, no one is obliged to take more than ordinary trouble. ”

“ A leech who through carelessness, or wilful neglect, or gross want of skill, failed to cure a wound, might be brought before a brehon or judge, and if the case was proved home against him, he had to pay the same fine to the patient, as if he had inflicted the wound with his own hand. ”

“ Now, the practitioner may never actually have had that malicious or criminal intent which is an essential element of a crime; but, if he has been guilty, for instance, of gross rashness, gross ignorance, gross negligence, or the most criminal inattention, [5] the law very properly infers such criminal intent, and the physician finds himself held for manslaughter. In England the law is, "If one, whether a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and sufficient attention ”

“ These are the distinctions between simple negligence, wilful injury, and that wanton negligence which is the equivalent of wilful injury, drawn and applied in our decisions. A mere error of judgment as to the result of doing an act or the omission of an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, but cannot rise to the degree of wanton negligence or wilful wrong.... ”

“ 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. ”

“ 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. ”

“ A physician (surgeon) making a wrong operation on the body of his patient either through mistake, or through the want of necessary skill or knowledge, or out of greed, fear, nervousness or haste, or in consequence of being spurned or abused, should be condemned as the direct cause of many new and unforeseen maladies. A patient, with any instinct of self-preservation, would do well to keep aloof from such a physician, or from one who makes a wrong or injudicious application of the cautery, and should shun his presence just as he would shun a conflagration or a cup of fatal poison. ”

“ It is actionable to say of a person in his professional character, “He is no doctor; he bought his diploma for $50” (345) . Any words imputing to a practising medical man, misconduct or incapacity in the discharge of his professional duties, are actionable per se. Thus, it is actionable, without proof of special damage, to accuse one of having caused the death of any patient through his ignorance or culpable negligence, as to say of a physician, “He killed my child by giving it too much calomel,” or, “He hath killed J. S. with physic, which physic was a pill;” ”

“ If the defendant acted honestly and used his best skill to cure, and it does not appear that he thrust himself in the place of a competent person, it makes no difference whether he was at the time a regular physician or surgeon, or not.
2. To constitute guilt, gross ignorance or negligence must be proved. ”