14 



THE ALUMNI JOURNAL. 



hence, it presumes him to be furnished with 

 that amount of skill which he is under obliga- 

 tion; by virtue of his calling, to possess. It 

 may and does vary widely among men, but it 

 must at least be sufficient to entitle him to a 

 recognized place among his own fraternity. If, 

 therefore, by illegally assuming a title, or 

 assuming one he is incompetent to fill, he holds 

 himself out as a practioner of any science, then 

 he does not possess the required qualifications, 

 and induces the public to employ him, he is a 

 wrongdoer ab initio, and any person injured by 

 his performances has an action against him. 



The courts have ruled that no attorney can 

 be held to infallibility of judgment or to a war- 

 ranty of the result of his efforts. Attorneys do 

 not profess to know all the law or to be incap- 

 able of error or mistakes in applying it to the 

 facts of every case, as even the most skilful of 

 the profession. What he is responsible for is 

 ordinar}' skill, diligence and care, having refer- 

 ence to the nature of the business he undertakes 

 to do, and for any failure to exercise these an 

 action may be maintained by his client against 

 him. 



MALPRACTICE DEFINED. 



Malpractice is bad or unskilful practice in a 

 physician or other professional person whereby 

 injury is caused. Blackstone says concerning 

 it : — ' For it hath been solemnly resolved that 

 Malpraxis is a great misdemeanor and ofi"ense 

 at common law, whether it be for curiosity and 

 experiment or b)' neglect, because it breaks the 

 trust which the party had placed in his phy- 

 sician, and tends to the patient's destruction" 

 (3 Black. Com., 122). 



Malpractice may be divided into three parts — 

 I. Wilful; 2. Negligent; 3. Ignorant. 



Wilful takes place when the physician pur- 

 posely administers medicines or performs an 

 operation which he knows and expects will re- 

 sult in damage or death to the individual under 

 his care. 



Negligent malpractice comprehends those 

 cases where there is no criminal or dishonest 

 object, and includes gross negligence of that 

 attention which the situation of the patient 

 requires. 



Ignorant malpractice is the administration of 

 treatment calculated to do injury, and which 

 does harm, and that which a scientific medical 

 man would know was not proper. 



Malpractice can only be affirmed where the 



physician has set aside established principles 

 and neglected to employ means which are uni- 

 versally held to be necessary in the given case. 

 If medical men fail to discharge their duty in a 

 skilful and attentive manner, the law will grant 

 redress to the party injured by their neglect or 

 ignorance, in the form of an action on the case, 

 as for a tortuous misconduct, and no fees can be 

 recovered," 



LIABILITY OF DRUGGISTS. 



" The rule of liability of a druggist who de- 

 livers a deleterious drug to one who calls for 

 a harmless one is the same as that which gov- 

 erns the liability of professional persons whose 

 work requires special knowledge and skill, and 

 a person is not legally responsible for any un- 

 intentional consequential injury resulting from 

 a lawful act when a failure to exercise due 

 and proper care cannot be imputed to him. 



An action against a druggist for an error of 

 his clerk in compounding a prescription rests 

 upon negligence, and a right of recovery does 

 not arise from the mere fact that a drug given 

 was not included in such a prescription, as the 

 defendant is entitled to have the question of 

 the competency of his clerk and the exercise 

 of due and proper care on his part submitted 

 to the jury. 



In such case, when the defendant assumes 

 to fill the prescription, undertakes that he pos- 

 sesses the ordinary skill of a druggist or 

 apothecary, and that he will exercise due and 

 proper care in putting up the medicine re- 

 quired, the degree of care being proportionate 

 to the gravity of the injury that woulil neces- 

 sarily result from a want of care, the failure to 

 exercise due and proper care is the only ground 

 upon which a recovery can be had in such ac- 

 tion. 



One who is ignorant of the properties of a 

 poisonous drug is liable to a criminal prosecu- 

 tion for a negligent sale or use thereof 



A druggist who grinds medicines in a mortar 

 which has been used to grind poisons without 

 properly cleansing it is liable to one injured by 

 means of such careless use. So of a druggist on 

 shipboard who neglects cleansing drinking uten- 

 sils after using them v ith poisonous .substances. 

 So of a druggist who sells morphine instead of 

 quinine, which causes death. 



A druggist who sells a deadly poison as a 

 harmless medicine is liable, and one who labels 

 a deadly poison as a harmless drug is liable for 

 all consequences." 



