SOME NOTES ON A DOCTOR'S LIABILITY. 771 



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 re- 

 sponsible. 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 neg- 

 lect, 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. f 

 It has been held also that it is no defense that the services were ren- 

 dered 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 pre- 

 ferred. Now, the practitioner may never actually have had that mali- 

 cious 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, J the law very prop- 

 erly 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 or- 

 dinary 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 



* 60 Barb. New York, 508. This is a leading case on the subject of malpractice, and 

 the writer has made frequent annotations therefrom. 



t 47 New York, 186, % Bishop. 



