treat all the inmates of the county infirmary, whether afflicted with contagious diseases or not, and to receive a stipulated price therefor, can not recover any thing beyond the stipulated price for attending persons sick with contagious diseases, and placed in a building apart from the one usually used as a county hospital, by order of the county authorities.1

In all suits to recover for the value of services rendered, the facts to be proved are, employment, skill in the physician, services rendered, and charges at the usual rates.2 And in such cases the defendant may plead and show that he did not manage the case skillfully. But a physician will not be entitled to recover of a town of which he is not a resident, for medical services rendered to its inhabitants while sick with the small-pox, unless there has been an express contract with him for such service by the proper officers in behalf of the town. *

4

1 Johnson v. St. Clara Co. 28 Cal. 545.

Mays v. Hogan, 4 Texas, 26.

3 Graham v. Gautier, 21 Texas, 120.

Childs v. Inhabitants of Phillips, 45 Maine, 408.

CHAPTER IV.

PERSONAL LIABILITIES.-MALPRACTICE, CIVIL AND CRIMINAL.CONTAGIOUS DISEASES.

§ 52. In the preceding chapters we have examined the legal status of physicians, so far as their general and professional responsibility to the public extends. We have shown what is of right expected of them ex officio, and under what circumstances. And having done this, we shall be the better able to inquire by what forms of deviation from their acknowledged obligations and responsibilities towards patients, (negligence,) or by what departures from accepted canons of orthodox practice (want of skill) they render themselves liable to actions for malpractice. In passing from established decisions forming the foundations of positive law, to hypothetical cases, requiring for their solution a resort to analogical reasoning, we shall, at times, necessarily, be treading upon new and untried ground. This is inevitable. Yet it need not mislead inquiry in any direction, since the principles of individual responsibility are so trenchantly established in questions relating to the rendition of personal services, that we can always appeal to them for a safe and speedy answer to all interrogatories.

§ 53. The obligations involved in the discharge of professional duties are not always nor necessarily subjects of legal accountability. Yet in many senses they are so inwoven into the texture of professional conduct as to exceed the limits belonging to the domain of pure ethics,

and to enter that of civil responsibility. The physician has no exclusive privileges of absolution for wrong-doing derived from his profession, and becomes responsible, therefore, for any damages to the health, or for any disfigurement of the person of a patient, which are directly traceable to his want of skill or diligence. Blackstone, in his usual sententious style, has well elucidated this doctrine in the following words: "For it hath been solemnly resolved that malapraxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment, or by neglect, because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction." These principles are unquestionably just, and will be found, when strictly applied, to work harm to no man. They simply exact truth, in requiring the possession of skill to accompany its promise, and honesty or fidelity in demanding that its application shall be uniform and consistent throughout the period of attendance upon the patient. Less than this could not be required, since rules and a method must govern all our civil relations, in order to insure mutual protection to the personal rights of each member of society, and surely no man can justly complain when judged by a standard of his own enactment.

§ 54. But inasmuch as the argument of success is the most potential in its influence over the popular mind, and answers for a test and proof of a man's merit, while he who fails, is apt thereby to be deemed incompetent and blameworthy, it often follows, in the practice of medicine, that a failure in the expected results of a particular treatment too often invites unjust opprobrium upon the practitioner; and not always content with blot

1 Black's Com. vol. 3, p. 121.

66

ting his fair fame, the evil-minded frequently lend themselves to the ungracious task of extorting damages by encouraging a suit for malpractice against him. In the majority of cases these actions are the direct offspring of envy, hatred, malice, and all uncharitableness," and when rocked in the cradle of calumny, and nursed by the hand of speculation, injury is often inflicted upon the character of a physician, who is at the same time left without any proper remedy at law. The effect, also, of such suits upon the public mind is apt to be pernicious, for success in obtaining damages often stimulates others into a repetition of the experiment, and the physician consequently practices his art in chains, being perpetually exposed to the risk of a suit which may ruin his reputation as well as his fortune. It becomes lawyers, therefore, to consider, when called upon to institute such suits, that little value can be placed upon the ipse-dixit of a layman sitting as a critic upon the professional conduct of a physician. 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 a terra incognita to the unlearned, and one where no lay critic can follow him. How, for example, can any person, even the most learned, determine the precise limit of influence of an exciting cause upon a lurking predisposition, define the point at which a pathological action commences in an organ like the brain, or measure and prognosticate the effects of shock upon different constitutions? Who can always decide when an effect flows solely from the interference of human art, or whether recuperative powers were not lost in consequence of shocks in no other wise revealed than circuitously, thus entail

ing, by heaven's own foreordained laws, permanent deformity or disability?

The following observations of a French judge are worthy of the deepest consideration in their exposition of the duties incumbent upon courts in suits for malpractice. We have accordingly ventured to translate them, although' well aware that they lose much of their force and perspicuity by being presented in a different language: "Admitting even that the legislator could not, without danger, have disarmed society upon this point (professional responsibility) it must be acknowledged also that courts should employ the powers confided to them with prudence and moderation. They are not competent judges either of theories, opinions, or systems. They can not appreciate the character of an opportunity for, and the more or less perfect execution of, a surgical operation; nor the value of a special form of treatment, because they can never be converted into medical tribunals of ultimate appeal, apportioning the blame to the penalty, and pointing out the path which should be pursued. That, in consequence, their intervention, in this region reserved to science, can not be exercised at all. And that it only begins beyond it, where, in the light of common sense, and independently of all theories provoking discussion, there has been exhibited on the part of the physician. grave errors, negligence, manifest want of intelligence, unskillfulness, or ignorance of such things as all practitioners of a profession should know; and that he has, through these means, compromised the life of the patient, or converted an operation performed upon him into a true wounding."

§ 55. While no professional man can expect to sail

Aff. Viney & Schrieber, Jour. du Palais, vol. 45, p. 318.