SOME NOTES ON A DOCTOR'S LIABILITY. 773 



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 an- 

 cillary and possibly more interesting one, how far can the physician 

 or surgeon deviate from the established rules of practice without be- 

 ing 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 prog- 

 ress 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 authori- 

 ties introduce a modification. If it is shown that physicians or sur- 

 geons 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 test- 

 ed. In other words, one can not become an experimentalist, except 

 at his peril. If a writer on treatment, or, in the absence of such au- 

 thority, 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 impu- 

 nity, and will shield the practitioner from the charge of malpractice, 

 provided that the cases in which it Avas 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 j^hysician 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 estab- 

 lished 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 



* 2 Espinasse, N. P., 601. 



