Medical malpractice

“ 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 ”

“ Finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. ”

“ 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. ”

“ 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. ”

“ Chapter VII Liability for Medical Malpractice Article 54
⁠Where a patient sustains any harm during diagnosis and treatment, if the medical institution or any of its medical staff is at fault, the medical institution shall assume the compensatory liability. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The condition of the lungs is of more importance than the state of the heart.
The chloroformist ought always to use the best chloroform.
An anæsthetic should never be administered except in the presence of a third person. This applies especially to dentists who give gas to females.
Malpractice.—In every case where a medical man attends a patient, he must give him that amount of care, skill, knowledge, or judgment, that the law expects of him. If he does not, then the charge of malpractice may be brought against him. ”

“ 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. ”

“ 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) . ”

“ 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 ”

“ 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. ”

“ 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. ”

“ Suits for Injuries to Married Women and Minor Children.—When the person injured is a married woman, her husband may sue for loss of services on account of malpractice, and when the injured person is a minor child the parent may sue as in any case of negligence. A third person, such as the husband of a woman injured by malpractice, or the father of minor child so injured, can only recover the value of the services thereby lost, and in some cases the enhanced expense of medical attention and nursing thereby rendered necessary. ”

“ 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. ”

“ 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. ”

“ Although a given fatal wound might not have caused death under the best possible treatment and surroundings, yet, according to the above rule, the assailant is held responsible as long as the fatal result is due partly, at least, to the wound. Therefore we see the responsibility of the surgeon not only for the life of his patient, but also for that of the prisoner. He should, therefore, not deviate from the ordinary and most accepted practice in such cases, as any such deviation is taken hold of by the counsel for the defence. In fact, every point of the treatment is subjected to criticism. ”

“ When in doubt run no risks; better let a patient perish from disease or injury, than while attempting uncertain experiments with the surgeon’s knife or the use of dangerous drugs. The safe rule is to take no chances, unless there is a consensus of judgment of several physicians. It may be objected that if no experiments are tried no new medicines or surgical devices could be discovered, or their effects observed. ”

“ At the present date of writing there exists a large class of the profession who still continue to do surgery according to the views and practices of twenty or thirty years ago, and who, while perhaps carrying out some of the forms of antiseptic surgery, are still ignorant of its fundamental principles and consequently guilty of neglect, since there is now no reason why all should not practise them. The writer holds to the view that if it can be shown that these precautions were not adopted when others would have adopted them, it constitutes criminal neglect. ”

“ Before implied malice can be inferred, the judges must be satisfied that the prisoner by his treatment of his patient was wilfully regardless of his social duties, being determined on mischief.... To constitute manslaughter, the killing must have been the consequence of some unlawful act. Now there is no law which prohibits any man from prescribing for a sick person with his consent; and it is not a felony, if through his ignorance of the quality of the medicine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectations, should die. ”

“ 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? ”

“ 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. ”

“ Now, however, both in England and America, it is well settled that it makes no difference whether the party be a regular practitioner or not; if he, bona fide and honestly exercising his best skill to cure a patient, performs an operation or administers a medicine which causes the patient’s death he is not guilty of manslaughter. ”

“ 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. ”

“ Even the fact that doctors themselves die of the very diseases they profess to cure passes unnoticed. We do not shoot out our lips and shake our heads, saying, "They save others: themselves they cannot save": their reputation stands, like an African king's palace, on a foundation of dead bodies; and the result is that the verdict goes against the defendant when the defendant is a doctor accused of malpractice. ”

“ 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 ”

“ Any person undertaking a cure, but being grossly careless and thus producing death, is for a different reason liable to a charge of manslaughter, whether he is a licensed practitioner or not.’ These cases seem to us to announce a correct rule. The interests of society will be subserved by holding a physician civilly liable in damages for the consequences of his ignorance, without imposing upon him criminal liability when he acts with good motives and honest intentions” (219) . ”

“ 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 the surgeon using due skill and care occasions death while he is endeavouring to heal the wound, then he who inflicted the wound is chargeable with the death; for he who does an unlawful act is responsible for all the consequences that in the ordinary course of events flow from it. It is an ordinary consequence of a wound that a surgeon should be called in to attend to it, |91| and it is a necessary incident of surgery that patients should die under the knife. ”