of knowledge and skill which will enable him to discharge the duties. he assumes with discretion and safety. He does not warrant a cure, or the success of an operation; and he is not responsible for a mistake, or for an error of judgment, in matters of reasonable doubt or un‹ertainty. Where there is but one recognized and approved mode of treatment, his departure from it will render him liable for the consequences; but where a different treatment is followed by different schools of medicine, he is at liberty to follow the practice of his own school,

The same rule applies to men engaged in the different branches or departments of the medical profession; with perhaps a little more strict ness, where a man devotes himself to a single line of practice; as aqcoucheur, surgeon, or oculist.1

1 Rich et uxor v. Pierpont, 3 F. & F., 35. (Action for want of due and proper care and skill as accoucheur.) "To render a medical man liable, even civilly, for negligence, or want of due care or skill, it is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than even ho himself might havo bestowed; nor is it enough that he himself acknowledges some degree of want of care; there must bave been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result."

Ruddock v. Lowe, 4 F. & F., 519. (Malpractice as a doctor.) "A person not qualified, as not being a regular medical practitioner, but assuming to be, or to practice as such, and undertaking to treat another for a disease, is liable for injury caused by ignorant and improper treatment, by which the patient is rendered worso instead of better, and is injured by the use of improper medicine."

Hancke v. Hooper, 7 C. & P., 81. (Malpractice as a surgeon.) "A surgeon is responsible for an injury done to a patient, through the want of proper skill in his apprentice; but, in an action against him, the plaintiff must shew that the injury was produced by such want of skill, and it is not to be inferred. And if a person goes into a surgeon's shop and asks to be bled, saying he has found relief from it before, and does not consult the person there as to the propriety of performing the operation, if there aro no external indications of its being improper, such person is justified in performing it, and the surgeon will not be answerable for its not producing a beneficial result.”

Lanphier and wife v. Phipos, 8 C. & P., 475. (Malpractico as a surgeon.) "Every person who enters into a learned profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill; he does not, if he is an attorney, undertake at all events to gain the cause; nor does a surgeon undertake that he will perform a curo; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable, and competent degree of skill; and in an action against him by a patient, tho question for the jury is, whether the injury complained of must be referred to the want of a proper degree of skill and care in the defendant, or not."

Wilmot v. Howard, 39 Vt., 447, (Malpractice in setting plaintiff's arm and

§ 428. There is a tacit understanding, in the employment of a physician, that he will follow his usual practice; that being a botanic physi

inattention thereafter, &c.) There is an implied obligation on a man holding himself out to the community as a surgeon, and practicing that profession, that he should possess the ordinary skill in surgery of the profession generally. Where by improper treatment of an injury by a surgeon, the patient must inevitably have à defective arm, the surgeon is liable to action, even though the mismanagement or negligence of those having the care of the patient, may have aggravated the case and rendered the ultimate condition of the arm worse than it otherwise would have been. The liability of the surgeon being established, the showing of such mismanagement or negligence only affects the measure and amount of damages."

Long v. Morrison, 14 Iad., 595. (Malpractice in causing death of patient.) "A physiciau is liable for damages arising as well from the want of skill, as from neglect in the application of skill.”

Wood v. Clapp, 4 Sneed., 65. (Malpractice in reducing a fracture in the armsurgeon.) A person assuming to be qualified for the exercise of any profession, art or vocation, is responsible for any damago which may result to those who employ him, from the want of the necessary knowledge, skill and science which such profession demands. The law does not, however, require the highest degree of skill and science, but only such reasonable degree, as will enable the person safely and discreetly to discharge the duties assumed; and the mere failure of a course of treatment is not of itself, conclusivo as to such want of skill in the practitioner."

Patten v. Wiggin, 51 Me., 594. (Action for professional services-defence malpractice-defendant more injured than benefited, &c.) "Physicians and surgeons who offer themselves to the public as practitioners, impliedly promise thereby, that they possess the requisite knowledge and skill to enable them to treat such cases as they undertako with reasonable success. This rule does not require the possession of the highest, or even the average skill, knowledge or experience, but only such as will enable them to treat tho caso understandingly and safely. The law also implies that, in the treatment of all cases which they undertake, they will exerciso reasonable and ordinary care and diligence. They are also bound always to use their best skill and judgment in determining the nature of the malady and the best mode of treatment, and in all respects to do their best to secure a perfect restoration of their patients to health and soundness. But physicians and surgeons do not impliedly warrant the recovery of their patients, and are not liable on account of any failure in that respect, unless through some default of their own duty, as already defined. If the settled practico and law of the profession allows of but one course of treatment in the case, then any departure from such course might properly bo regarded as the result of want of knowledge, skill, experience or attention. If there are different schools of practice, all that any physician or surgeon undertakes is, that he understands, and will faithfully treat the case according to the recognized law and rules of his particular school."

Howard v. Grover, 23 Mc., 97. (Malpractice as a surgeon.) "A surgeon is not liable for a want of the highest degree of skill in the performance of an operation in the line of his duty; but only for the want of ordinary skill, and for the want of ordinary care and ordinary judgment."

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cian, he will follow that system; or a homeopathic physician, that he will follow that system. And it would seem that an inexperienced

Fowler v. Sergeant, 1 Grant's Cases, 355. (Malpractice as surgeon, in setting a limb.) "A physician or surgeon is not chargeable for ignorance of a case, if ho prescribes for it rightly.”

Ritchey v. West, 23 Ill., 385. (For injuries arising from negligence and lack of skill in defendant.) "When a person assumes the profession of physician and surgeon, the law holds him responsible for any injury arising from a want of reasonable care, skill and diligence in his practice, unless the services rendered were gratuitous [in which case ho is liable only for gross negligence]."

Hord v. Grimes, 13 B. Mon., 183. (Action for causing death of a slave.) “A physician is responsible for all the ill consequences which may result from the administration of medicine to a slave, without the consent of the owner."

Bowman v. Woods, 19 Greene, 441. (Malpractice in a case of accouchment.) "The law implies an undertaking on the part of every medical practitioner, that ho will use an ordinary degree of care and skill in his practice, and will hold him liable for gross carelessness or unskillfulness. A physician is expected to practico according to his professed and avowed system."

Smothers v. Hanks, 34 Iowa, 295. (Malpractice in treating a fracture.) The law requires of physicians and surgeons in the treatment of their patients the use of ordinary skill and diligence only, the average of that possessed by the profession as a body, and not of the thoroughly educated, only; having regard to the improvements and advanced state of the profession at the time of the treatment. The case of McCandless v. McWha, 22 Penn. St., 261, criticised and reviewed. Ch. J. Beck dissented, holding, that the law requires the use of that skill and diligence ordinarily exercised by the thoroughly educated physicians and surgeons.

Bellinger v. Craigne, 31 Barb., 534. (Malpractice in treatment of a broken limb.) "The law implies an undertaking on the part of a physician or surgeon that he has ordinary skill, and that he will execute the business intrusted to him with ordinary care and skill. If he fails in this duty, he is guilty of a default in his undertaking, and cannot collect the pay for his services, but is liablo in damages to the person who employed him."

Carpenter v. Blake, 60 Barb., 483. (Negligence and malpractice in treatment of arm, &c.) "One holding himself out as a surgeon, is liable as well for want of skill as for negligenco; and the injured party may bring his action to recover for damages resulting from both, and recover ou proving damages resulting from either." In such a case, the questions to be decided, are, 1st, whether the defendant possessed the ordinary skill of persons acting as surgeons; and 2d, if he did, whether he was chargeable with negligence in not applying it in his treatment of the plaintiff. The decision of the Supreme Court was re. versed in the appellate court, the Court of Appeals holding that whether defendant was or was not skillful in his profession, to be a material issue. 50 N. Y., 633.

Corsi v. Maretzek, 4 E. D. Smith, 1. (The question was, whether a homeopathic physician is a "regular physician.") "In the absence of special stat 1 Bournan v. Woods, 1 Iowa, 441.

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

person, employed with a perfect knowledge of his want of experience, is only liable for the exercise of diligence and such skill as he possesses. On the same ground, a physician of much experience and great skill should be held to the exercise of more than ordinary skill; and a specialist to the exercise of at least the ordinary skill of professional men engaged in his specialty. And yet it is quite clear that the common law, while it goes upon the theory of contract up to a certain point, does really favor a rule of uniform application, demanding of profes

utes, the law does not exclusively recognize any particular system of medicine or class of medical practitioners." "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."

Simonds v. Henry, 39 Me., 155. (Assumpsit for a set of artificial teeth.) A dentist is required to use a reasonable degree of care and skill in the manufacture and fitting of artificial teeth. The exercise of the highest perfection of his art, is not implied in his professional contract.

Leighton v. Sargent, 27 N. H. (or 7 Fost.), 460. (Negligence, &c., in treating a fracture.) A physician or surgeon, without a special contract for that purpose, is never considered as warranting a cure. 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 com. mitted to him; 3. that he will use his best judgment, in all cases of doubt, as to the best course of treatment. He is not responsible for want of success, unless it is proved to result from want of ordinary skill, or want of ordinary care and attention. He is not presumed to engage for extraordinary skill, or for extraordinary diligence and care. He is not responsible for errors of judgment, or mere mistakes in matters of reasonable doubt and uncertainty. McNevins v. Lowe, 40 Ill., 209. (Malpractice as a surgeon.) "The highest degree of care and skill is not required of a physician to relievo him from liability for damages resulting from his treatment of a patient; only reasonable care and skill are necessary." But if a person holds himself out to the public as a physician, he must be held to ordinary care and skill in every case of which he assumes the charge, whether in the particular case he has received fees or not. Where he does not profess to be a physician, however, nor to practice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility. The case of Ritchey v. West, 23 Ill., 385, is to be understood in this sense.

The current of authority calls for reasonable and ordinary intelligence and skill in the practice of medicine, regard being had to the advanced state of the healing art. And it is well settled that a physician cannot be held chargeable, where his patient's refusal to follow his prescription, or his negligence contributes to the injury sustained. McCandless v. McWha, 22 Penn. St., 261; Hibbard v. Thompson, 109 Mass., 286; Tefft v. Wilcox, 6 Kaus., 46; Heath v. Gilson, 3 Oregon, 64; see case of inoculation; Landon v. Humphrey, 9 Conn., 209.

sional men both ordinary skill and diligence; diligence, with reasonable skill.'

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§ 429. A surveyor, an engineer, an architect or builder is answerable to his employer for reasonable and ordinary skill in the work on which he is employed, within the line of his business. He comes under an obligation to his employer; his duty springs out of his contract, and it is not always commensurate with that of his employer towards the public or third persons. Employed as a skilled workman or artist, he engages to perform the work with the requisite ability and skill; his engagement to this effect is implied from his profession or habitual occupation. Employed as an engineer in the erection of a bridge, he is bound to ascertain for himself the nature of the soil, by actual examination and experiment; and he is answerable to his employer for the proper construction of the bridge with a view to its strength and safety, so far as the plan and materials are left to his discretion. He impliedly undertakes that he possesses and will exercise the requisite ability and skill in the work he undertakes; he assumes a responsibility involving exact knowledge and professional skill. His ability is analogous to that of a manufacturer who makes an article to order, for a given use, where the mode of the manufacture is left to his discretion. Acting under å contract which specifies the plan and materials of the structure, his liability does not extend beyond the terms of his agreement; and yet even here he cannot recover unless he fulfills the terms of the contract, or at least takes care that the bridge is built in a workmanlike manner.

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1 Carpenter v. Blake, 60 Barb., 488; S. C., 50 N. Y., 693; Leighton v. Sargent, 27 N. H., 460; McNevins v. Lowe, 40 Ill., 209; McCandless v. McWha, 22 Penn. St., 261; Landon v. Humphrey, 6 Conn., 209; Ruddock v. Lowe, 4 F. & F., 519. 2 Cunliff v. Mayor &c. of Albany, 2 Barb., 190; S. C., 2 N. Y., 165, case of a bridge negligently built. See Loop v. Litchfield, 42 N. Y., 351; and see Caldweli v. New Jersey Steamboat Co., 47 N. Y., 282.

3 Harmer v. Cornelius, 5 C. B. (N. S.), 236.

4 Moneypenny v. Hartland, 1 Carr & Payne, 352; S. C., 2 Id., 378. The plaintiff was employed by defendants as architect and engineer in the work of building a bridge over the Severn, and this action was brought by him to recover compensation for his services; and it was held to be the plaintiff's duty to examine for himself into the nature of the soil; that in making his plans and estimates he is not at liberty to act upon information received from another person; and further, that he is not entitled to compensation for his services, where his estimates of the expense to be acted upon, turn out incorrect (being too low) to a considerable extent; whether such error arises from negligence or want of skill.

Harmer v. Cornelius, 5 Com. Bench, N. S., 236. The plaintiff was employ. ed by the defendant as an artist, a panorama and scene painter, for at least one month, at so much a week; being found incompetent, he was discharged at