Malpractice By SMITH W. BENNETT, Esq., Columbus Before proceeding with the subject assigned me, I wish to acknowledge that I deem it cause for self-gratification to be invited to appear before the members of a great profession, which has in all ages contributed so many noble self-sacrificing men to the needs of humanity; a profession which is not alone content to assuage pain and alleviate human ills, but which stands in the forefront of civilization's advance, with a genius for investigation and research, sounding back along the advancing columns the results of its efforts in words, possibly of admonition and alarm, but always of wisdom. I should also felicitate you, that in Ohio your Society with its excellent corps of officers has in such a marked degree contributed to the enactment of laws governing the entrance to your profession, that in point of comparison with other States places them among the wisest and best of medical legislation. Malpractice is one of the few "golden" cords that binds your profession to mine; the subject can have no attractions to as eminent a body as this, for I find by examination of the proceedings of the Medico-Legal Society that there has been but one paper read upon the topic in a period of eighteen years. I can deduce but one of two conclusions from this fact-either an abhorrence of the subject or a plethora of information concerning it. I trust I may not be considered an expert in this line, for I assure you I cannot find a practical illustration of it from my audience. In this, I know you are a body of immunes. If the subject is one at which our professions have touched-or rather, where some of our professions have "touched" some of yours-I am happy to say in vindi cation of my own that few if any lawyers of consequence have sought to profit by such causes. If all rational discussion should start with a definition of terms, it must be admitted none can be framed of this subject to fit all as well as each particular case. To tell what malpractice might be under a given state of facts is to assume the province of that "ancient bulwark," otherwise known as our jury system. There was an ancient doctrine that in order to render a physician liable in a civil action for damages there must have been gross carelessness or negligence on his part. This is rapidly disappearing, and in its place the courts are holding, in our State as elsewhere, that a physician or surgeon assumes to use ordinary care and skill as such; and if he does not possess such degree of skill, or fails to use ordinary care, by which the patient is damaged, he is liable. Ordinary care has a relative meaning, and means such as a prudent person under the same circumstances would exercise. So then, it may be agreed, that a physician or surgeon is, as a rule, liable for damages when he fails to use ordinary care in the treatment of his patient. Herein appears, what is to a layman an anomalous position for courts to assume, viz: the degree of skill that may be required of a practician is vastly different in different cases presented, but with the change in the degree of skill comes no corresponding change in the degree of care; ordinary care is required, no matter if the disease be iritis or rheumatism. One writer upon the subject of "The Jurisprudence of Medicine," says: "It is extremely difficult to determine, with any degree of exactness, what constitutes such a want of ordinary skill as will enable us to establish a general principle applicable to all cases in which a deficiency of it is alleged. Necessarily, every case has its own complexion, and is, in its requirements upon the physician for special forms of treatment, more or less simple or complex. In proportion to the delicacy of an operation, or the difficulty of treating a particular disease, rises the measure of required skill. As every disease is modified to some degree by the constitutional peculiarities of the body in which it manifests itself, it becomes difficult if not impossible to lay down in advance any standard of prerequisite skill, assumed as indispensable to its successful treatment." One author in his work on the medical profession says: "Want of skill does not mean the want of the greatest possible medical talents or attainments; still less does it signify the having erred in opinion as to the disease, or the mode of treatment adopted; but the want of that general and ordinary knowledge of the profession which the law expects from every man who ventures to proclaim himself a member of it; or a total want of professional skill and knowledge in the particular operation or complaint which he has undertaken to cure." It is in point here to observe that the question of malpractice must turn, as cited by our own Supreme Court, upon the skill employed in the treatment of the particular case, and not as to the skill which the physician possessed. One can not be excused by reason of being the most skillful man of his profession, if he has not exercised and employed ordinary skill in the particular case. The rule as stated by Professor John Ordronaux, who was professor of Medical Jurisprudence in the law school of Columbia College, does not obtain in Ohio. He says: "What is demanded therefore, in every practitioner, is simply that average amount of skill necessary for the ordinary duties of his profession, since this is the minimum that will suffice for its successful practice." Skill in the ordinary duties of the profession will not exonerate a physician who undertakes an operation or treatment in which he has no skill. It is required that he possess the skill suited to the undertaking, and ordinary knowledge and experience in the treatment of like or similar cases as the one undertaken, or he becomes liable, if damage or injury results from such ignorance. If it were otherwise, all that would be necessary would be to assert an experience or skill, which in fact were not possessed, and the empiric would be protected with the most learned physician. It possibly is unnecessary to say that the relation implied between physician and patient is not that of an insurer. No promise to effect a cure is implied. If one is averred, it must be shown that there was an express undertaking or agreement on the part of the physician or surgeon to effect a cure. In one of the oldest cases decided in Ohio, the Supreme Court said: "The surgeon engages the ordinary skill of the profession in reducing a fractured bone, and diligence and care in his subsequent treatment, and to use his exertion and endeavor to cure, but a cure itself is frequently beyond his physical power. It depends not on him. The accoucheur engages the skill of his profession, and that he will endeavor safely to deliver, but there is no positive obligation to produce this result. The event is in the hands of Him who giveth life, and not within the physical control of the most skillful of the profession." As to the ethics of "guaranteeing" cures, a topic outside of the range of this paper, there can be but one opinion. The promise is rarely, if ever, prophetic of the performance, and probably the best way to dispose of this altogether-toonumerous branch of the profession is to turn them over as the legitimate prey of the "guaranteed" lawyer. Puffendorf, in his Law of Nations, tells of an instance of this class. A man who had sore eyes came to a horse doctor for relief; the doctor anointed his eyes with the same ointment he used among his horses, upon which the man falls blind and the cause is brought before the judge, who acquits the physician. "For if the fellow," says he, "had not been an ass, he had never applied himself to a horse doctor." The relation of physician and patient is one which does not discharge from all care the patient himself and yet hold the physician liable for an absence of care. It may be characterized as a mutual relation, in which the patient must cooperate with his professional adviser, and must conform to the necessary prescriptions; but if he will not, or under the pressure of pain cannot, his neglect is his own wrong or misfortune, for which he has no right to hold his surgeon responsible. In such cases the burden of responsibility is 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 consists 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 starting point of a series of mischievous results, for which it is afterwards and unjustly sought to throw the blame upon the physician." One evidence of the constant advance of your profession is that many of the practices of but a few years since, if resorted to now, would be grounds for recovery in a suit for malpractice. One of your authors has said: "Surgery has just emerged from barbarism." Formerly wounds were not permitted to heal as of first intention; the lips were not permitted to be put together. Simple wounds were forced into sloughing ulcers, and fractured bones were kept separated by thrusting dressings between their ends. With greater learning and the departure from ancient practices has come a more liberal treatment from the courts. This has come naturally, as did the discovery of anesthetics in response to a higher humanity. As heretofore suggested, the courts of different States have not been uniform in their opinions as to what constitutes actionable negligence or ignorance on the part of |