# Popular Science Monthly/Volume 18/April 1881/Some Notes on a Doctor's Liability

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* SOME NOTES ON A DOCTOR'S LIABILITY.
By OLIVER E. LYMAN.
IT is related, as a legend of the medical fraternity, that the Emperor Augustus was once so highly pleased at a cure effected in himself by his doctor, Antonius Musa, that he raised that gentleman to the rank of knight, and relieved the whole profession from the burdens of taxation.
Probably at no time before or since that event has the lot of the physician been such a happy one. In the earlier days of Rome the ​practice of medicine was despised and confined to the humbler ranks of society and to slaves. Not until the influence of Grecian civilization made itself felt in the Roman capital did physicians gain honor or standing.
In the middle ages the calling suffered a relapse, to speak medically. Surgery was in ill repute, and Sprengel tells us that in Germany no artisan would employ a young man as an apprentice without a certificate that he was born in marriage of honest parents, and came of a family in which were found neither barbers, bathers nor "skinners," as surgeons were called.
Even at the present day, although the meritorious claims of the medical and surgical practitioner have been recognized, and an honorable social status awarded him, his mind is not at rest. The advancement and refinement of ideas have begotten deeper anxieties, and a feeling of responsibility. So jealously does the law guard the lives and persons of the people, that every time the physician writes a prescription, or the surgeon makes an incision, he takes his purse, his liberty, or, perhaps, his life in his hand. The risk is not all on the part of the patient, despite a popular impression that the only pocketbook likely to be depleted or the only life liable to be sacrificed is that of the sick man.
In undertaking the care of a patient the physician enters into legal relations with him and becomes a party to a contract, which, although not expressly set forth in writing, is yet, in the eye of the law, fixed and certain, and one which subjects him, in case of a breach on his part, to legal liabilities. He engages that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community or by those conversant with that employment as necessary and sufficient to qualify him to engage in such business. He contracts also to employ reasonable and ordinary care and diligence in the exertion of his skill and application of his knowledge to the matter in which he is employed.
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. Both are equally responsible for a failure to exercise proper care, and for negligence in the discharge of the duty imposed upon them. But extraordinary care is no more contracted for than the possession of extraordinary skill. If the physician has employed ordinary skill and care in the management of his case, he is not responsible if success does not crown his efforts. But, on the other hand, if he does not bring to the treatment of a disease the ordinary amount of skill possessed by those in the same ​profession, it is immaterial how high his standing may be. He is liable for the want of it. If, moreover, possessing skill, he undertakes to heal a wound or cure a disease, and through his neglect the party is not cured, or is impaired in health by the treatment, he is also responsible. Behold the two horns of the dilemma which threaten the physician! If he has skill, and neglects to employ it, he is liable in damages; if he has not skill, he is equally liable. The injured party may bring his action to recover for damages resulting from both, and recover, on proving damages resulting from either.
Once having incurred the liability, it sticks like a leech. Retiring from the case is of no avail to shield him against the results of his prior negligence or malpractice. Nor will neglect to send in a bill. Such failure might reasonably be interpreted as an admission of neglect, and as an evidence of consciousness on the part of the physician that he was not entitled to pay, and that his services were worthless. It has been held also that it is no defense that the services were rendered gratuitously.
This liability is, for the most part, a civil one, and redress can be measured by a monetary standard. If, however, the patient die, and his death is presumptively owing to the treatment received and caused by it, criminal proceedings may be instituted against the doctor, and in such cases the charge of criminal malpractice is not infrequently preferred. 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, 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; and, if he cause the death of the other through a gross want of either of these, he will be guilty of manslaughter." There is nothing unsound in that doctrine.
The physician does not, however, contract for freedom under all circumstances from errors of judgment. The man who possesses ordinary skill is presumed to have ordinary good judgment, and, if it be fairly and conscientiously exercised, and the case is one of reasonable doubt and uncertainty, any errors and mistakes are upon employers alone.
Such is the law in New York. In Maine, however, not so very long ago, a verdict of heavy damages against a physician for alleged malpractice in a case of amputation was sustained on appeal. The Court, nevertheless, expressly admitted that the verdict was found against the defendant on the ground of his error of judgment in not ​removing more than he did of the amputated limb. Such a verdict is tantamount to saying that the physician ought to have known better what course to pursue, and was therefore guilty of ignorance, on which ground it would, perhaps, have been better to base the verdict than on an error of judgment.
Fortunately for the profession, there are some limitations upon its liability. Ordinarily the physician is supposed to possess a familiarity with the characteristics of the dominant disease. As it has been summed up: "His diligence and care will be exercised in watching for and guarding against the numerous accidental influences which, if overlooked, may delay or even prevent the restoration of the patient, such as latent predisposition to certain diseases; a lack of vital or recuperative power in the patient; the effects of melancholy and of other passions of the mind; the effect of the want of pure air and good food; of careful attendance and nursing; the neglect of the patient to follow the physician's advice, or to take the medicines which he prescribes."
A surgeon once, in a case of dislocation of the elbow-joint, replaced the bones and put the arm on a pillow; with the part below the joint at a right angle with that above it, and directed the application of cold water, but omitted to give warning that the arm must remain in that position. Assuming for the moment that such treatment was enough, the Court declared such omission to be culpable negligence on his part. Had he, however, performed his task skillfully, omitting nothing, and then the patient had neglected to comply with his directions, the surgeon's liability would have been limited. 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.
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. Contributory negligence is a good defense, and in this respect the patient is "on all-fours" with the man who is run over while walking on a railroad-track without authority. Neither can recover. While there may have been negligence on the part of the engineer or the doctor, yet, the pedestrian and the patient being equally at fault, no recovery can be had. But, if the patient has neglected to use necessary precautions, because lulled into a sense of security by the doctor, the doctor will be liable. A refusal, however, on the part of the patient, to prevent an attempt to remedy the injury already caused by malpractice, does not necessarily preclude a recovery, if the refusal was made without reasonable assurance that the attempt would be successful. And it would seem that refusal, ​even after assurances of success, would be just and proper. What weight have assurances from a negligent physician? Is there any reason to suppose that, after having broken his implied contract for care and skill, he is in any better condition to observe his express one? But, if the physician guarantees a successful issue out of the trouble, he will be held responsible in case of failure to effect a cure, although, ordinarily, he would not be liable if he had employed such care and skill as were above spoken of.
The discussion of this question of responsibility opens up the ancillary and possibly more interesting one, how far can the physician or surgeon deviate from the established rules of practice without being charged with negligence in case of an injury to the patient arising from such deviation?
An English judge says, "Any deviation renders him liable." This is rather severe, and, if practically applied, would effectually bar progress in the practice of physic and surgery. Every practitioner would be as antiquated as a Galen or Hippocrates, and the sick and diseased would lose all the benefits and improvements which the experience of years and the researches of science furnish. The rule works a hardship. In striving for protection, it causes deprivation. American authorities introduce a modification. If it is shown that physicians or surgeons have applied a different system of treatment and found it to succeed as well as or better than the one prescribed, it is not negligence, so says a New York judge, to resort to the system thus practically tested. In other words, one can not become an experimentalist, except at his peril. If a writer on treatment, or, in the absence of such authority, practical surgeons prescribe certain grooves, in those grooves he must run. 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. So also must he, when 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. There can not but be some cases when latitude must be allowed the physician in the application of remedies. But, when the diagnosis reveals a disease for which there is a well established method of treatment, the practitioner departs from it at his risk.
This rule is for the best welfare of the community. It protects against reckless experimenting, while it permits the adoption of such ​changes as have been thoroughly tested and their benefits demonstrated. It is also quite in harmony with the spirit of the profession, which may, perhaps, in the phraseology of the day, be said to be "conservative—not too conservative, but just conservative enough."
Men who profess to deal with human life and health adopt radical changes with cautiousness. Yet the members of no other profession, probably, are more ready for discussion. Theories are constantly advanced and—upset. Others are maintained and imperceptibly shaded off into practice. Galen was an authority for thirteen centuries, when a revolution of medical ideas took place, and his works were burned by Paracelsus and his followers. The homœopathic offshoot of what is known as the regular school of medicine obtained a foothold only after years of debate and discussion. It is only a few years ago, in 1855, that a judicial decision was necessary to establish the right of a homoeopath to the title of doctor, and it is not so very long ago that an allopath thought he could call a homœopath a quack with impunity. In a slander suit in which he was a party defendant, the Court, however, convinced him of his mistake.
This incident illustrates the disposition of the older school toward innovations and the vindication by one new branch of practitioners of its claim to recognition. But, surprising as it may seem, such were the statutes in force in New York State from 1844 to 1874, that all other classes of practitioners were equally countenanced by the law. Allopath, homœopath, hydropath, or whatever devious path he followed, the man who made the practice of physic or surgery a business was entitled to the name of doctor, and to the protection afforded by the courts.
A résumé of the statutes which have been passed in the Empire State regulating the practice of physic and surgery reveals a most curious struggle against quackery, in which it will be seen that quackery was for the most part triumphant. About the beginning of this century our law-makers undertook a reform in the matter of practice of physic and surgery, and made it a penal offense to do either without being duly licensed for the purpose. There being no enactment in special terms against the recovery of compensation for such unlawful services, the Legislature, in 1806, passed another statute expressly declaring that any person who should commence practice without a license, after the first day of September next ensuing, should "for ever thereafter be disqualified from collecting any debt or debts incurred by such practice." This was a severe blow to "quacks." It was penal for them to practice, and they had no friend in the Court. Truly, the way of the transgressor seemed hard. The bonds were carefully examined and readjusted in 1813. The revision of 1830 contained similar provisions. The unauthorized practice of physic and surgery was declared "a misdemeanor punishable by fine or imprisonment, or both." ​This provision was short-lived. The work of the lobbyists of the irregular party began to tell. In April of the same year an act was passed which made the offense penal instead of criminal, and which also declared that such penal provisions should "not be deemed and taken to extend to or debar any person from using or applying for the benefit of any sick person any roots, barks, or herbs, the growth or produce of the United States." Mark the charming protective air in that statute! Under a free construction it reads, "However dangerous they may be, if you only use American roots and products, we don't care what you do." Quackery was again the upper dog. But the struggle was not over. Although on top, the other dog had a vicious grip upon him. The empiric was still unable to recover compensation from delinquent patients. He was equal to the emergency, and took his pay in advance. It took the licensed practitioners four years to make the next move, which was a feeble one. In 1834 the exemption from the penalty was confined to such as used the herbs, etc., without fee or reward. The next year the enactment was blotted out, and the two parties stood as in 1830. For fourteen years the condition of affairs remained unchanged, when, in 1841, all criminal and penal laws against the unlicensed practice of physic and surgery were repealed, as well as every enactment which prohibited any person from recovering compensation for services as physician or surgeon, whether licensed or not. One doctor was as good as another in the eye of the law. Quackery had achieved a complete victory, and was liable only in cases of malpractice, or gross ignorance, or immoral conduct in such practice. The standard of admission to the profession was lower even than it was in the time of the Christian emperors. At that early day physicians were required to undergo an examination to prove their competency to perform professional duties before they were permitted to practice. If any practiced without a license they were heavily fined.
For thirty years the situation remained unchanged. From 1844 to 1874 no step was taken to purify the system. But, in the latter year, our legislators awoke. Among other regulations it was declared "a misdemeanor for any person to practice medicine or surgery in the State unless authorized so to do by a license or diploma from some chartered school. State board of medical examiners, or medical society," or who should practice it "under cover of a medical diploma illegally obtained." The punishment was to be a fine of not less than fifty dollars nor more than two hundred dollars for the first offense, and for a subsequent offense a fine of not less than one hundred dollars nor more than five hundred dollars, or imprisonment of not less than thirty days or both. This was an excellent move, and, supplemented by the one in 1880, has been fairly effectual in driving out unlicensed practitioners. The enactment of 1880 provided that no person shall "practice physic or surgery within the State unless he is twenty-one years of age, and either has been heretofore authorized so to do ​pursuant to the laws in force at the time of his authorization, or is hereafter authorized so to do," either by a license from the regents of the University of the State of New York, a diploma of an incorporated medical college within the State, or a diploma of a similar institution without the State, provided it be endorsed as approved by some proper medical faculty of the State. But every physician and surgeon, with the exception of practitioners of ten years' standing and a few others, must register in the office of the clerk of the county where he is practicing, or, if hereafter authorized, intends to practice, his name, residence, and place of birth, together with his authority to practice, to all of which he must subscribe. He must also make affidavit as to the manner of his license or authority, the date of the same and by whom granted, which, if willfully false, shall subject the affiant to conviction and punishment for perjury. Any one who violates either of these provisions or the one in regard to practicing, or who shall practice under cover of a diploma illegally obtained, shall be deemed to be guilty of a misdemeanor, and on conviction shall be punished in a similar manner to that provided in 1874.
Such is the law at present in New York State. Much has been accomplished, but something yet remains to be done. There are weak points in the laws, noticeably the exemption from the operations of the act of 1880 of ten-year practitioners. While this may have been inserted to save reputable men from unnecessary trouble, does it not also leave a foothold for a disreputable class of an equally long standing? It is true, the law of 1874 is in force, declaring unlicensed practice to be a misdemeanor; but its inefficiency in meeting the evil necessitated the move of 1880.
The profession, however, is in a fair way to be purged of most that is foul in it. Perfection is not a mortal attainment. Let the community, then, be thankful for its present measure of protection. Against "quacks" our Legislatures are working. For malpractice the courts furnish redress.
* ↑ T. Foster, New Hampshire, 460.
* ↑ 75 New York, 15.
* ↑ 60 Barb. New York, 508. This is a leading case on the subject of malpractice, and the writer has made frequent annotations therefrom.
* ↑ 47 New York, 186.
* ↑ Bishop.
* ↑ 22 Pennsylvania Statutes, 261, 7 Phil., 138.
* ↑ 25 Ohio Statutes, 86.
* ↑ 68 Pennsylvania Statutes, 168.
* ↑ 2 Espinasse, N. P., 601.
* ↑ 4 E. D. Smith, New York, 1.
* ↑ 42 New York, 161.
* ↑ 4 Denio, New York, 60.