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the profession practiced. For such deficiency, whenever present, constitutes a fraud as towards the employer, since he covenants for that measure of proficiency which is impliedly possessed by every one announcing himself to be a practitioner in any profession. From these obligations there is no escape. The contract in fact rests upon the manner in which the service is rendered, for nothing is plainer than that he who can not properly discharge a duty which he has voluntarily undertaken, shall derive no advantage from his own malfeasance. While, as a corollary to this, he is further responsible in damages for all the ill consequences of his own professional imperfections in discharging such duty.


§ 5. In England there are three orders in the medical profession, viz., physicians, surgeons, and apothecaries. These orders are the creatures of statutory enactments, defining and prescribing the qualifications, rights, duties and liabilities of such corporate bodies and their members, as also the limits within which their franchise may be

1 Duncan v. Blundell, 3 Starkie, 6.

2 The earliest statute relating to the medical profession is a Draft of an Act of Parliament, 9 Hen. V., A. D. 1422, in which it is recited that "no one shall use the mysterie of fysyk unless he hath studied it in some university, and is at least a bachelor in that science. And if any one practice contrary to this regulation, he shall forfeit £40 and be imprisoned."

Of other statutes, relating to the same subject, may be mentioned Rot. 32, Henry VI.; Canon of Council of Lateran; 19th Henry VII., cap. 7; 3d Henry VIII., cap. 11; 14th Henry VIII., cap. 5; 32d Henry VIII., cap. 40. These are the leading and most important charters, of which the succeeding are generally confirmations, with, in some cases, new grants: 1 Mary, Sess. 2, cap. 9; Chart. 7 Elizabeth; 3 Jac. I., cap. 5; 10 Geo. IV., cap. 7.

3 Physicians of the College of London may practice in that city and seven

exercised. In the United States, these distinctions do not obtain, being considered as essentially opposed to that spirit of the common law which favors the right of every man to practice in any profession or business in which he is competent. And medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This doctrine was essentially borrowed from the civil law, where no barriers were drawn around either professions of law or mediciné. Any one who pleased might practice them without any previous qualification, subject always to responsibility for injuries inflicted upon others. "A Rome," says Montesquien, "s'ingérait de la medecine qui voulait; mais parmi nous les medecins sont obligés de faire des études, et de prendre certains grades; ils sont donc censés connaitre leur art."


§ 6. In the absence of any statutes, therefore, limiting the common law right to practice medicine inherent in every person, the term physician may be applied to any one who publicly announces himself to be a practitioner of this art, and undertakes to treat the sick either for or without reward. It is plain that at common law no distinctions can be made between systems or schools of medicine, and consequently none between those practicing under them. Every one undertaking to treat the sick professionally, and as the exercise of his vocation is,

miles around it; while licentiates of Oxford or Cambridge may practice throughout England and Wales, but not in London. Willcocks on Medical Profession.

1 Esprit des Lois, liv. 29, ch. 14. Il est même assez vraisemblable que ceux, qu'on a qualifiés les premiers du nom de medecins, ont été principalement redevables de ce titre aux connaissances qu'ils avaient en chirurgie. Goguet. Origine des Lois, vol. 1, 216.

legally, a physician.' He has the rights of one, and together with those rights assumes the burdens and responsibilities of that position in which he has voluntarily placed himself. It is of course otherwise if any statute prescribes particular qualifications for the practice of a profession, and one undertakes to discharge its duties without such qualifications. For, in the latter case he is doubly a wrong-doer; first, as against the statute, and, second, as against the public, which has a right to demand in him the ordinary proficiency of his profession. But codes of ethics alone impose no legal obligation upon citizens at large to abstain from practicing particular professions. They are not statutes of legislative enactment, and courts can take no official cognizance of them. While they are to a certain extent useful within the circle of accredited professional membership, they certainly have no authority beyond it, for no attribute of sovereignty attaches itself to them, being at most only conventional agreements, creating moral and not legal obligations.

§ 7. These principles are well elucidated by Judge Daly of the New York Court of Common Pleas, in a case involving the question of what constituted a "physician," in legal signification. The following is the substance of his opinion:

"In the absence of special statutes, the law does not exclusively recognize any particular system of medicine, or class of medical practitioners. The statutory regulations formerly in force in the State of New York, requiring as a condition to the right of recovery for medical services, an attendance upon lectures, an examination before a medical board, and a certificate from an organized association, are repealed.

Proof that one practices as a physician is prima facie evidence of his professional character. Sutton v. Tracy, 1 Mich. 243.

"The repealing act (Session Laws, 1844, cap. 275, p. 406) expressly permits any person to practice physic, subject to punishment as for a misdemeanor, if convicted of gross ignorance, malpractice, or immoral conduct.

"Medicine is a progressive rather than an exact science, and in determining the legal significance of the word 'physician' or 'doctor,' when used in a contract, the term must be held to mean any person who makes it his regular business to practice physic.

"Accordingly, where an agreement of employment between an opera director and a vocalist provided for a forfeiture of a month's salary in case the latter should fail to attend at any stated performance, except in the event of sickness, certified to by a doctor, to be appointed by the director, held that the provision was binding upon the artist, although the director appointed a person in the practice of what is known as the homeopathic system of medicine.

"In adverting to the conflicting views and differences of opinion that exist and have ever existed in the practice of the healing art, it is not to call in question the value of learned, skilful, and experienced physicians, but merely to show the error of attempting, in the present state of medical science, to recognize, as matter of law, any one system of practice, or of declaring that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not."

And in another case it was said: "Before the statute upon the subject, proof of his having practiced for several years with success and reputation will establish the fact of the plaintiff's being a physician.'


§ 8. But whatever may be the school or system of

Corsi v. Maretzek, 4 E. D. Smith, 1.

2 Brown v. Mims, 2 Rep. Con. Ct. 235.

medicine to which a physician belongs, the law presumes consistency between his profession and his practice.1 For, where there are different schools of practice, all that any physician undertakes is, that he understands and will faithfully treat the case, according to the recognized law and rules of his own particular school. This doctrine is essential to the protection of his rights, as it is of those of his employer. Hence, if one employ a homeopathic or botanic physician, or any other reformer in medicine, knowing him to be such, he can not traverse his claim for services rendered with the plea that such services were rendered in a different way from what was expected of him, or is adopted by orthodox practitioners. He is bound by his own choice. And contrariwise, if a practitioner of one school of medicine, being employed through predilection for that system by any person, treat him according to a different and opposite system, either with or without his consent first had and obtained, he inferentially admits his want of that ordinary skill belonging to his calling, and thus perpetrates a fraud upon the public. Should he fail to benefit the patient, the evidence of this duplicity and ignorance would certainly destroy all right to recover for his services.3

A physician is expected to practice according to his professed and avowed system. Bowman v. Woods, 1 Iowa, 441.

Patten v. Wiggin, 51 Maine, 594.

The ancient Egyptians were not only believers in, but enforcers of, this doctrine of consistency, which was evidently part of the law of the land. "For the physicians have a public stipend, and make use of receipts prescribed by the law, made up by the ancient physicians. And if they can not cure the patient by them, they are never blamed. But if they use other medicines, they are to suffer death, inasmuch as the lawgiver appointed such receipts for cure as were approved by the most learned doctors, such as by long experience had been found effectual." Diodorus Siculus, lib. 1, cap. 6.

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