exercise of proper judgment in informing the patient as to his ailment and condition.16 And ordinary care and skill include such care and skill in determining when attendance may be safely and properly discontinued." And the duty of the physician extends not only to diagnosis and treatment, but also to proper instructions as to the patient's comfort and management.18 But the care, diligence, and skill required relate to professional duties, and not to nursing and providing necessaries, etc. He is not bound to nurse his patients and provide for them, though he is required to instruct others how to do it.19 And a physician or surgeon is not chargeable with ignorance of a case if he prescribes for or treats it properly and correctly.20 If a patient is delirious, and cannot be made to understand the necessity of the proposed treatment, his physician or surgeon may co-operate with the patient's immediate family, and resort to reasonable force.21

474. With reference to established practice.-Physicians are bound by what is universally settled in the profession; and where a particular mode of treatment is upheld by the consensus of opinion among

take such precautions as experience must have shown to be necessary to prevent the communication of the infection. Piper v. Menifee, 12 B. Mon. 465, 54 Am. Dec. 547.

16 See Hedin v. Minneapolis Medical & Surgical Inst. 62 Minn. 146, 35 L. R. A. 417, 54 Am. St. Rep. 628, 64 N. W. 158; Logan v. Field, 75 Mo. App. 594.

It is competent, however, in an action for malpractice, to prove that it is good medical treatment in some cases for physicians to withhold from patients their actual condition or the extent of their injury. Twombly v. Leach, 11 Cush. 398.

And the act of a surgeon in purposely refracturing a broken arm of his patient without informing him of the nature of the operation does not alone establish that he was guilty of bad surgery. Boydston v. Giltner, 3 Or. 118.

And a physician called upon to perform an operation who leaves a broken needle in the patient's body is not under duty to tell her of it when to do so would be to endanger the success of the operation; but he should tell her upon discharging her from his care as his patient. Eislein v. Palmer, 7 Ohio S. & C. P. Dec. 365, 5 Ohio N. P. 325.

And where a surgeon employed by a railroad company tells a passenger injured in a collision that his injuries are slight, by reason of which the pas

senger accepts a small sum in compensation, the passenger has no ground of action against the surgeon, though his injuries were much greater than he was led to suppose. Pimm v. Roper, 2 Fost. & F. 783.

"Ballou v. Prescott, 64 Me. 305; Williams v. Gilman, 71 Me. 21; Mucci v. Houghton, 89 Iowa, 608, 57 N. W. 305; Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094; Tucker v. Gillette, 22 Ohio C. C. 664, Affirmed in 67 Ohio St. 106, 93 Am. St. Rep. 639, 65 N. E. 865.

"Pike v. Honsinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; Graves v. Santway, 2 Silv. Sup. Ct. 67, 6 N. Y. Supp. 892; Tish v. Welker, 5 Ohio S. & C. P. Dec. 725; State v. Power, 24 Wash. 34, 63 L. R. A. 902, 63 Pac. 1112.

And, in the absence of an understanding to the contrary, it is the duty of a veterinary surgeon employed to perform an operation upon an animal, incident to the performance of the operation itself, to direct what shall be done to prevent injurious results that might naturally follow, and to give his personal attention to such matters so far as they fall within the ordinary scope of his calling. Williams v. Gilman, 71 Me. 21. "Graham v. Gautier, 21 Tex. 111. "Fowler v. Sergeant, 1 Grant, Cas.

23

the members of the medical profession, it should be followed by the ordinary practitioner.22 If the settled practice of the profession allows but one course of treatment in a case, any departure from such course may properly be regarded as the result of the want of knowledge, skill, and experience, or attention.2 And it is immaterial how much skill the physician possessed, since his failure to exercise it constitutes negligence.24 A physician cannot try experiments with his patients to their injury.25 If the condition of the patient was such, however, that the ordinary course of treatment would be injurious or could not be endured, failure to resort to it does not show negligence or want of skill.26 And it is the universally settled practice which controls; the mere fact that writers or surgeons recommend a certain mode of treatment does not make it incumbent upon all to adopt that mode.27

475. With reference to particular school.-The skill of physicians. and surgeons is to be judged by the school of practice to which they belong. 28 All that they undertake is that they will faithfully treat

"Burnham v. Jackson, 1 Colo. App. 237, 28 Pac. 250; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Tefft v. Wil cox, 6 Kan. 46; Mucci v. Houghton, 89 Iowa, 608, 57 N. W. 305; Carpenter v. Blake, 60 Barb. 488. Burnham v. Jack son, 1 Colo. App. 237, 28 Pac. 250, was reversed by the Supreme Court on a question of practice.

Where a case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does so is prepared to take the risk of establishing, by his success, the safety of his experiment. Carpenter v. Blake, 60 Barb. 488.

23 Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; 2 Esp. N. P. Dig. Pt. 2, p. 601; Jones v. Fay, 4 Fost. & F. 525.

To be free from liability, however, a physician or surgeon need not necessarily adopt precisely the same remedy that every other skilful member of the profession uses for a like condition; but he must, in the main, observe and take the benefit of the past experience and learning of the profession, and adopt them as a rule of action rather than new and experimental methods. Wells v. World's Dispensary Medical Asso. 9 N. Y. S. R. 452.

"Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Carpenter v. Blake, 60 Barb. 488.

But, while the failure to use skill, if a physician or surgeon has it, may be negligence, when the treatment adopted is not in accordance with established practice, but is positively injurious, the case is not one of negligence, but one of want of skill. Carpenter v. Blake. 60 Barb. 488.

"Hesse v. Knippel, 1 Mich. N. P. 109; Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Slater v. Baker, 2 Wils. 359.

28 Hallam v. Means, 82 Ill. 379, 25 Am. Rep. 328.

Directing a person with a broken arm to bathe it in wormwood and vinegar, although condemned by experts, is not such a departure from the established practice as will justify a recovery against the surgeon ordering it, there being nothing to show that it has caused injury. Winner v. Lathrop, 67 Hun, 511, 22 N. Y. Supp. 516.

Burnham v. Jackson, 1 Colo. App. 237, 28 Pac. 250.

28 Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116; Bowman v. Woods, 1 G. Greene, 441; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W.

228.

the case in hand according to the recognized rules of their particular school.29 And one who professes to adhere to a particular school of practice must come up to its average standard at least.30 Clairvoyant physicians, however, who rely exclusively for diagnosis upon some occult influence or mental intuition received when in an abnormal condition, do not constitute a school, and inust be held to the duty of treating their patients with the ordinary skill and knowledge of physicians of good standing practising in the vicinity.31 And the same rules apply to magnetic healing.32 And a physician who applies the X rays to a person, not for medical purposes, but to locate a foreign substance in the body of his patient, is not entitled to have the question of his care and skill in applying it determined by the opinion of physicians of his own school.33

476. With reference to locality.-The standard of ordinary care of physicians and surgeons may vary even in the same state according to the greater or less opportunities afforded by the locality for observation and practice;34 and it has been held by a number of the cases that a physician is required to use no more skill than that of the physicians of his neighborhood, if there be others, presumably of average ability.35 But the rule has also been stated to be that the degree of knowledge, skill, and care required of a physician or surgeon is that which is ordinarily possessed by those practising in similar localities, and is not necessarily limited to that which is in fact exercised in his particular locality.36 And a physician practising in a small village

"Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Williams v. Poppleton, 3 Or. 139; Wurdemann v. Barnes, 92 Wis. 208, 66 N. W. 111.

And it is not for the court or for the jury in an action for malpractice with reference to such treatment, to determine whether one particular system is the best, or to decide questions of surgical science upon which surgeons differ among themselves. Williams v. Poppleton, 3 Or. 139; Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116; Bowman v. Woods, 1 G. Greene, 441.

Hesse v. Knippel, 1 Mich. N. P. 109. Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 N. W. 228.

Longan v. Weltmer (Mo.) 64 L. R. A. 969, 79 S. W. 655.

And the plaintiff in an action for malpractice against a magnetic healer, though the action is based solely upon negligent treatment, is not required in VOL. III. MED. JUR.-30.

order to recover, to show that the kind and manner of the treatment adopted were not proper or usual in magnetic healing. Ibid.

33 Henslin v. Wheaton (Minn.) 64 L. R. A. 126, 97 N. W. 882.

Smothers v. Hanks, 34 Iowa, 289, 11 Am. Rep. 141.

"Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116; Hathorn v. Richmond, 48 Vt. 577; Mullin v. Flanders, 73 Vt. 95, 50 Atl. 813; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627; 38 Am. St. Rep. 17, 16 S. E. 564; Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111; Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 909, 40 N. W. 228; Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674.

38Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894; Dunbauld v. Thompson, 109 Iowa, 199, 80 N. W. 324; Gramm v. Boener, 56 Ind. 497; Kelsey v. Hay, 84 Ind. 189;

who undertakes to perform a difficult operation is bound to possess only that skill and ability which physicians and surgeons of ordinary ability and skill practising in similar localities with opportunities for no larger experience ordinarily possess; he is not bound to possess that high degree of art and skill possessed by eminent physicians and surgeons practising in large cities.37

477. With reference to state of profession.-By ordinary skill required of a physician is meant such skill as is commonly possessed by men engaged in the profession; and this will depend largely upon the state of the science and the means of education at the particular period.38 And it need not be that of thoroughly educated persons only, but must be that of the average, having regard to improvement, and the advanced state of the profession at the time of the treatment,3" without reference to conditions in the past or at some other time.40

478. Effect of gratuitous service. The law requires the same degree of care and diligence of a physician or surgeon when his services are rendered gratuitously as when he receives compensation there for ;*1

V.

Becknell v. Hosier, 10 Ind. App. 5, 37 N. E. 580; Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561; McCracken Smathers, 122 N. C. 799, 29 S. E. 354. The skill required of a physician in treating a dislocated and broken bone is not limited to that of ordinarily skilful and prudent physicians of the vicinity, if that does not equal the skill and prudence possessed by physicians in similar communities. Burk v. Foster, 24 Ky. L. Rep. 791, 59 L. R. A. 277, 69 S. W. 1096.

So, the care and skill required of a dentist, though not necessarily the highest known to the profession, is not limited to such as is exercised by dentists in his own neighborhood, but must be such as is ordinarily possessed by the average of his profession. McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354. But an instruction in an action for malpractice, that the physician was bound to use such care, skill, and diligence as physicians an dsurgeons in the neighborhood where he resided, and where he practised, and who were engaged in the same general line of prac tice, ordinarily have and exercise in like cases, is not reversible error, where the defendant resided in a city in which there were other physicians presumably of average ability when compared with similar localities. Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561.

"Small v. Howard, 128 Mass. 131, 35 Am. Rep. 363.

Hewitt v. Charier, 16 Pick. 353; Tefft v. Wilcox, 6 Kan. 62; Simonds v. Henry, 39 Me. 155, 63 Am. Dec. 611; McCandless v. McWha, 22 Pa. 261; Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38.

More than an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations. Slater v. Baker, 2 Wils. 359; Seare v. Prentice, 8 East, 352.

"Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Smothers v. Hanks, 34 Iowa, 289, 11 Am. Rep. 141; Almond v. Nugent, 34 Iowa, 300, 11 Am. Rep. 147; Force v. Gregory, 63 Conn. 167, 22 L. R. A. 343, 38 Am. St. Rep. 371, 27 Atl. 1116; Hitchcock v. Burgett, 38 Mich. 501; Pike v. Honsinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; MoCracken v. Smathers, 122 N. C. 799, 29 S. E. 354; Haire v. Reese, 7 Phila. 138; Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719; 7 Am. St. Rep. 909, 40 N. W. 228; Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674.

40 McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354.

"Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; McNevins v. Lowe, 40 Ill. 209; Becker v. Janinski, 21 Abb. N. C. 45, 15 N. Y. Supp. 675; Edwards v. Lamb, 69 N. H. 599, 50 L. R. &. 160, 45

and the fact that no bill for services was rendered is immaterial.42 The rule is different, however, where the person rendering the services did not profess to be a physician;43 though one falsely assuming to be a physician, and qualified as such, who undertakes to treat another for a disease, is liable for an injury caused by his ignorance or improper treatment.44

479. Duty in case of doubt.-If, when called upon, a physician deems himself incompetent to treat the case, he should recommend the employment of another physician." And if he deems himself competent, but is uncertain or in doubt as to the nature and extent of the injury or disease, he must use his best judgment as to whether or not he should consult some other physician or surgeon.18 But, having assumed the charge of a case, the measure of professional skill which the physician is bound to exercise does not depend upon whether or not he refused the proffered assistance of other medical men. And a physician exercising proper care cannot be held liable for failure to send for a specialist to attend to a matter other than that for which he was employed, though he had promised to do so.18

Atl. 480; Gladwell v. Steggall, 5 Bing. N. C. 733, 8 Scott, 60, 8 L. J. C. P. N. S. 361, 3 Jur. 535. Contra, Conner v. Winton, 8 Ind. 315, 65 Am. Dec. 761; Ritchey v. West, 23 Ill. 385.

"Baird v. Gillett, 47 N. Y. 186; DuBois v. Decker, 130 N. Y. 325, 14 L. R. A. 429, 25 Am. St. Rep. 529, 29 N. E. 313.

"Higgins v. McCabe, 126 Mass. 13, 30 Am. Rep. 642; McNevins v. Lowe, 40 III. 209; 2 Esp. N. P. Dig. Pt. 2, p. 601. While a physician must apply the skill and learning which belong to his profession, the person who, without special qualification, volunteers to attend the sick, will, at most, only be required to exercise the skill and diligence usually bestowed by persons of like qualifications under like circumstances. Higgins v. McCabe, 126 Mass. 13, 30 Am. Rep. 642.

"Ruddock v. Lowe, 4 Fost. & F. 519. A midwife called to attend a mother

whose child appeared to have a disease of the eyes at birth, who represented that she could cure the child with simple remedies and washes, and that she had cured other children in that way who were similarly afflicted, and that there was no need of a doctor, merely expresses an opinion as to the efficacy of her remedies, and does not undertake to use the higher skill of the medical profession which is required of practitioners in the treatment of the more complicated and delicate organs, so as to render her liable where the child became blind, when with proper treatment, its eyesight might have been saved. Higgins v. McCabe, 126 Mass. 13, 30 Am. Rep. 642.

Mallen v. Boynton, 132 Mass. 443. 48 Ibid. "Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 668.

Jones v. Vroom, 8 Colo. App. 143, 45 Pac. 234.