arise, requiring its amputation, he will undoubtedly be held responsible for the suffering, loss of time, and permanent injury to the patient.1

On the other hand, it may be asked whether a physician has no remedy against a patient who, by fraudulently concealing an infectious disease, and inducing the physician to expose himself to it, communicates it to him? In two cases that have come under our notice, physicians making digital examinations of females in obedience to uterine necessities, supposing them all the while to be free from syphilitic disease; and their inquiries to that effect, of the husbands of these persons being answered in the negative, became infected, and for several weeks were disabled from practicing. Could these be called ordinary professional risks in the line of a physician's daily duties, and for which he has no remedy against the party infecting him? It seems clear that the disease, having been fraudulently concealed, and being, from the part of the body where most active, not always amenable to inspection, the physician could not exercise any professional acumen, previous to the digital examination, but had to rely exclusively upon the statements of the patient. Being thus induced by false representations to undertake that which he might have avoided, had any choice been allowed him, and serious damages thereby accruing to him, there is no escape from the conclusion that an action on the case would lie as against the patient.

1 Landon v. Humphrey, 9 Conn. 209.

CHAPTER V..

DUTY OF PATIENTS.-CONTRIBUTORY NEGLIGENCE.-APPORTIONMENT OF RESPONSIBILITIES BETWEEN PHYSICIANS AND SUR

GEONS. SUPERINTENDENTS OF ASYLUMS FOR THE INSANE.

MEDICAL SOCIETIES.

§ 82. The services rendered by physicians to patients. consisting in the treatment of the bodies of free, rational beings, these can not be looked upon as simply objective substances upon which to practice the art of medicine. The patient has not alone the objective duties of acquiescence to discharge towards his medical adviser, but the further and more important subjective duties of co-operation and assistance. While remaining objectively passive, he must still at all times, and so far as in his power lies, exert himself actively to co-operate with the physician in carrying out upon his own person the commands of the latter. By becoming a patient, he does not divest himself of his rational character, nor sink into the condition of a mere animal organism. He must obey primarily, but he is also required to exercise his reason in such a way as to further the object of the treatment to which his body is being subjected. To that extent he becomes the special agent of the physician by a legal paradox, which recognizes him both as a principal, or mandator, and an agent quoad hoc, to assist the mandatary in discharging his trust. This relation should never be lost sight of, for it constitutes a species of shifting trust, where the onus probandi in case of alleged dereliction of duty, may be made to pass from one party to the other.

§ 83. As it is of the first importance to the successful treatment of any case that the patient should wholly submit himself to the guidance of his medical adviser, so if he will not, or can not, it is either his own wrong or his own misfortune, and for its results he has no one to blame but himself. In such cases the burthen of responsibility is plainly shifted from the physician to the patient, and the former ceases to be accountable for the ulterior consequences of a treatment which, though undertaken by him, has yet been interfered with and interrupted in the course of its execution. This is an eminently just doctrine, and founded upon the maxim that no man shall profit by his own wrong, nor does it matter in what form that wrong manifests itself, whether it consist in negligence, unwillingness, or inability to follow the physician's directions, or in a wrongful interference with his treatment for sinister purposes. In probably the largest number of cases of alleged malpractice, could the truth be known, it would be found that deviations and departures from the strict line of duty on the part of patients, had been the startingpoint of a series of mischievous results, for which, it is afterwards, and unjustly, sought to throw the blame upon the physician.

1 It is the duty of the patient to co-operate with his professional adviser, and to conform to the necessary prescriptions; but if he will not, or under the circumstances he can not, his neglect is his own wrong, or misfortune, for which he has no right to hold his surgeon responsible. No man may take advantage of his own wrong, or charge his misfortune to the account of another. And a surgeon is not responsible for injury resulting to a patient from failure to conform to proper directions given by him, where such failure arises from unwillingness or inability on account of pain. McCandless v. McWha, 22 Penn. St. R. 268.

If the patient does not follow the prescription and co-operate with the surgeon, he can not afterwards call the surgeon to an account for any unfortunate result that may attend the case. Elwell on Malpractice, 31.

Thus, a medicine is prescribed containing some poisonous substance, which, in properly divided doses, and with proper intervals of time, is not only innoxious, but beneficial to the patient. He is ordered to take it at those intervals only, and until relieved. Now, if he takes it any oftener, or continues to take it after relief has been obtained, it is plainly a violation of the physician's directions, and from that moment he exonerates him from all responsibility for its ulterior consequences. Most of the medicines, in fact, which are prescribed to be taken in divided doses might, if taken as a whole, cause death, and in any case of this kind it would be manifestly unjust to lay the blame upon the physician, since what he prescribed may not have been a poison as ordered to be taken, but became so only through the direst misapplication of it by the patient. And the moment this latter sets up his own judgment in contravention to that of the physician, he frees him from all personal liability for whatever consequences may ensue from such wrong doing. But there is no escape by showing contributory negligence in the patient, provided the prescription was noxious ab initio, and its effects did not arise cumulatively, and from too frequent or unauthorized repetition by the party injured; because the duty of professing skill and exhibiting correctness in prescribing is not created by contract, but by law.

Or again, for example, a bandage slackened, or a splint displaced by a patient for the purpose of relieving present discomfort, though subsequently replaced by him with the greatest care, may yet have disturbed a provisional callus, and irrevocably impeded a perfect apposition of the ends of fractured bones, thus insuring as an inevitable consequence shortening of the limb. Or,

again, an omission to maintain a particular position to give support to a wounded part, to preserve a particular temperature, or to exercise persistently certain muscles or joints, with a view to re-educate them into flexibility, such omissions on the part of the patient to do for himself what the physician can not do for him, are all cogent arguments against the responsibility of the latter for the shortcomings of the former. The result of such conduct, however disastrous to the patient, and although he may concurrently with his wrong doing be under the care of a physician, can be charged only to his own account. It becomes a species of felo de se in the truest sense, for which none but himself is responsible.

CONTRIBUTORY NEGLIGENCE.

§ 84. The trust reposed in the patient, that he will obey and follow the physician's directions, so as to co-operate practically in his own treatment, is one which necessarily flows out of the relation subsisting between them. Any act of his, therefore, which infringes this trust, is, to that extent, an assumption of personal responsibility for all immediate and ulterior consequences thereby ensuing. In submitting himself to the care of a physician or surgeon, he impliedly agrees to acquiesce in any rules of personal conduct which the latter may prescribe, as a part of his professional treatment, precisely as a passenger on a steamboat or railway carriage is subject to rules of restrictive deportment; and in either case, if the passenger or the patient incur damage by reason of violating any such rules, the wrong and the blame are exclusively his own. The breach of this trust of obedience and co-operation