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SURGEON AND PATIENT.
T is not generally known to the surgeon, we believe, that he gives his services under the form of a contract. This agreement may be implied, or it may be expressed in terms. In either case he is responsible for the fulfillment of his part of the contract. The implied contract grows out of his offering his services to the public as a qualified practitioner of his art; and in all suits for alleged medical malpractice under it, the courts have uniformly held that the practitioner is bound to bring to his case the ordinary degree of skill in his profession. In the legal phraseology: "The implied contract of a physician or surgeon is not to cure to restore a limb to its natural perfectness-but to treat his case with diligence and skill." "His contract, as implied in law, is that-1. He possesses that reasonable degree of learning, skill, and experience, which is ordinarily possessed by others of his profession; 2. That he will use reasonable and ordinary care and diligence in the treatment of the case committed to him; 3. That he will use his best judgment in all cases of doubt as to the best course of treatment." The mean
ing of the term "ordinary skill," has given rise to much discussion, and too frequently is regarded by lawyers as requiring too high a standard of attainment. An eminent English jurist declares that all surgeons are not required to have the skill and knowledge of Astley Cooper, but only that skill which gives average results. Judge Story says: "In all these cases, where skill is required, it is to be understood that it means ordinary skill in the business or employment which the bailee undertakes; for he is not presumed to engage for extraordinary skill, which belongs to a few men only in his business or employment, or for extraordinary endowments or acquirements." But the surgeon may make a special contract with his patient, and then he is held strictly by its terms. If he contract to do what is absolutely impossible at the time the contract was made, he is not bound thereby, for a man cannot be compelled to perform an impossibility. He will forfeit all compensation for his services. If, however, he contract to do anything accidentally impossible, the contract is binding, "it being his own fault and folly that he did not expressly provide against those contingencies he should know might possibly transpire, and exempt himself from responsibility in certain events." The surgeon may then contract to effect an absolute cure; and the highest degree of skill, combined with the utmost care and diligence, will not relieve him of his responsi
bility, "because it was his own fault, or inexcusable ignorance, that so uncertain a result should have been guaranteed successful. The extent of the physician's or surgeon's liability, under an express contract to cure, will depend upon the circumstances of the case. If he undertakes an absolute impossibility, the law will not hold him responsible for the full extent of the damage resulting to the patient by reason of the failure to cure. His responsibility extends to a forfeiture of all compensation for medicine and service; the impossibility of the undertaking excuses him in part." The surgeon who makes a special contract cannot afterwards plead ignorance or want of skill; he, in effect, binds himself to bring to his undertaking a degree of skill and knowledge equal to its performance. The subject of special contracts between surgeon and patient has been reviewed by one of the courts of the State of Ohio, and a new and interesting phase has been given to it. A suit for alleged malpractice was brought in due form, and evidence brought forward to prove that the defendant did not exercise ordinary care and skill. The defendant claimed that he had a special contract with the plaintiff that he would not be responsible for results. The Court charged the jury as follows:
"A physician or surgeon, in undertaking the treatment of a surgical or medical case, enters into a contract with the patient. In the absence of any special one, the general law requires that the physician or surgeon shall render
to the patient the ordinary skill-not the highest order of skill, nor the lowest, but something like the average skill of the profession. The general law also requires a reasonable amount of care on the part of the physician or surgeon. These principles are applicable to persons engaged in other pursuits. A mechanic in building a house, or a lawyer in the management of a case at the bar, is responsible for the exercise of reasonable skill and care. The defendant, Dr. Butler, however, claims that he had a special contract, which obligated him only to the exercise of the skill that he himself possessed. This contract the defendant had a right to make; and this contract, if proven —a matter of which you are to be the judges—is the measure of his responsibility, in the case at issue, for surgical skill."
Whereupon the jury gave a verdict for the defendant. If this decision is accepted as a rule in our courts in suits for alleged malpractice, we see no reason why the surgeon may not always relieve himself from all liability to damages in the practice of his profession. He has only to stipulate that he will use all the skill which he himself possesses, a fact to which in several States he may be a witness, and a nonsuit would be the result. The necessity of protection from the prosecution of malicious persons has been increasingly felt by surgeons, but there has as yet been no adequate measures of relief proposed. The right to appear in one's own defence was an important gain, as the surgeon can generally so explain the case as to convince the jury of the propriety of his practice. But a contract properly drawn is a more direct and available safeguard.
T occasionally happens that a person long accustomed to writing, finds at length that his finger or fingers execute singular and unaccountable movements; he experiences difficulty in retaining his pen between his thumb and fingers, and accordingly he grasps it more tightly; it may be pushed by his first finger over the nail of his thumb, and it is difficult to bring the pen back to its place-a finger starts suddenly, and hence his writing looks unnatural. The same symptoms are sometimes noticed by others, as by those who play upon instruments. The pianist may have such spasmodic action of a finger as to touch keys which he intended to avoid. The violinist may find his fingers stiff and uncontrollable. Laboring people may suffer in a similar manner-as, for example, the seamstress pricks her fingers, and with all her efforts her stitching is irregular; the bricklayer may be unable to use the trowel; the milkmaid may be unable to pursue her avocation; the tailor and shoemaker have to abandon their trades. For a long period these symptoms were regarded merely as peculiarities, and no importance was at