Wharton and Stillé's medical jurisprudence ... v. 3

proper directions to attendants is culpable negligence, rendering a physician liable for an injury resulting therefrom.26 And a And a physician is liable for his own negligent acts though the acts of others may have aggravated the injury.27 And partners in the practice of medicine are responsible for the negligence of each other within the scope of their partnership business.28 And a surgeon is answerable for the want of proper skill of his apprentice.29

503. Effect of complication with other causes.-The fact that damages suffered by a patient were in part due to his own health or physical condition does not prevent a recovery against his attending physician for malpractice which contributed to his injuries;30 and in assessing the damages in such a case the jury must endeavor to distinguish between the effects of the different causes, and award damages only for the injuries attributable to the malpractice.31 And a

S. W. 755; Hitchcock v. Burgett, 38 Mich. 501; Myers v. Holborn, 58 N. J. L. 193, 30 L. R. A. 345, 55 Am. St. Rep. 606, 33 Atl. 389. And see Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696.

And a mere omission of an attending physician to use ordinary skill in diagnosing a case of smallpox, and his reporting it to the health department as such, will not render him liable for the removal of the patient to the pesthouse, if it is the duty of the health inspector to form an independent judgment upon the case, and the removal only takes place after he has done so. Brown v. Purdy, 22 Jones & S. 109.

Carpenter v. Blake, 60 Barb. 488; Beck v. German Klinik, 78 Iowa, 696, 7 L. R. A. 566, 43 N. W. 617.

"Hathorn v. Richmond, 48 Vt. 559; Wilmot v. Howard, 39 Vt. 449, 94 Am. Dec. 338; Carpenter v. Blake, 75 N. Y. 12.

He is liable at least for such injury as occurred from his wrongful act before it became the duty of the second physician to intervene and relieve the patient from the consequences thereof. Hathorn v. Richmond, 48 Vt. 557.

Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15; Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N. E. 156; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632.

And in an action against a firm of physicians for breach by one of them of their contract to treat a patient properly, all must be joined as defendants. Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632.

But a joint liability upon the part of two persons can only exist when the damage results from the same act; and where a physician inadvertently writes bisulphate of morphin instead of bisulphate of quinin in a prescription, and the druggist filling the prescription substitutes sulphate of morphin, and the death of a child results, they are not jointly liable. Jeannotte v. Couillard, Rap. Jud. Quebec, 3 B. R. 461.

29 Hancke v. Hooper, 7 Car. & P. 81; Tish v. Welker, 5 Ohio S. & C. P. Dec. 725.

But before a dentist can be held liable for injury to a person from the improper extraction of his tooth by another, it must appear that such other was the employee of the dentist, over whose acts in the premises he had dominion and control; or that the dentist being called upon to do the work directed it to be done by such other person, and under circumstances justifying the belief that such person was aiding him; or that he held out to the public that the other dentists in his office were his assistants, and that the person injured submitted to such other, supposing the dentist sought to be held responsible to be the head of the business. Wilkins v. Farrell, 10 Tex. Civ. App. 231, 30 S. W. 450.

30 Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674.

31Ibid.

The condition a patient was in when a physician was called affects the question of damages, but does not control the right of action for malpractice; that right depends upon the continuing or

the rule that error of judgment is not malpractice has no application in the case of a person who knows nothing about anatomy, surgery, or physics, since he can have no judgment in the matter.20 An error of judgment in a science on the part of a man unskilled in that science who holds himself out as a specialist therein is malpractice, rendering him liable for all damage resulting therefrom;21 and so is error of judgment which is so gross as to be inconsistent with the use of that degree of skill which it is the duty of every physician or surgeon to bring to the treatment of a case.22

502. Acts of others.-A physician is not liable for the results of carelessness of nurses unless his own carelessness contributed to the injury, where he exercised no control over them;23 nor is he liable for mistakes of druggists over whom he had no control, in filling his prescriptions.24 And a physician cannot be held responsible for injuries caused by improper treatment by one called in or sent by him to take his place.25 But failure to give

20 Courtney v. Henderson (N. Y. Marine Ct.) McClelland, Civil Malpractice, 273.

"Courtney v. Henderson (N. Y. Marine Ct.) McClelland, Civil Malpractice, 273; Pike v. Honsinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; Carpenter v. Blake, 50 N. Y. 696, Affirming 60 Barb. 488; Nelson v. Harrington, 72 Wis. 591, 1 L. R. A. 719, 7 Am. St. Rep. 900, 40 Ń. W. 228; Jones v. Fay, 4 Fost. & F. 525.

And where a physician and surgeon possessing special learning or knowledge with reference to his profession, with intent to deceive, made false and fraudulent representations to a person ignorant upon the subject, that certain injuries from which he was suffering were curable, and that at an institution in which he was interested they could and would cure him for a designated amount of money, and injury followed from reliance upon such opinion, an action for deceit will lie. Hedin v. Minneapolis Medical & Surgical Inst. 62 Minn. 146, 35 L. R. A. 417, 54 Am. St. Rep. 628,

64 N. W. 158.

But a physician is not chargeable with ignorance of a case where he prescribed for it properly and correctly. Fowler v. Sergeant, 1 Grant, Cas. 355.

"West v. Martin, 31 Mo. 375, 80 Am. Dec. 107; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Manser v. Collins (Kan.) 76 Pac. 851.

Where there could be but one course of treatment of the patient by a phy

sician which would be suggested by s physician of ordinary skill, the adoption of any other course would be evidence of a want of ordinary knowledge or skill, or care and attention, for which he might be held liable. Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593.

And the mere fact that a physician acted in good faith, and was not guilty of murder in administering poisonous medicine to a slave, is not alone sufficient to relieve him from liability for such act done without the consent of the master and owner. Hord v. Grimes, 13 B. Mon. 188.

"Sanderson v. Holland, 39 Mo. App. 233; Baker v. Wentworth, 155 Mass. 338, 29 N. E. 589; Perionowsky v. Freeman, 4 Fost. & F. 977.

24Stretton v. Holmes, 19 Ont. Rep. 286; Jeannotte v. Couillard, Rap. Jud. Quebec, 3 B. R. 461.

But the fact that a druggist filling a prescription was negligent is no defense to an action for malpractice against the physician who wrote it, for negli gently making a mistake in doing so. Murdock v. Walker, 43 Ill. App. 590.

And where a physician prescribes poison by mistake, and the druggist filling the prescription substitutes another poison, either of which would have caused death, and death results, the physician cannot escape liability, his error being the primary cause of the acrident. Jeannotte v. Couillard, Rap. Jud. Quebec, 3 B. R. 461.

Keller v. Lewis, 65 Ark. 578, 47

proper directions to attendants is culpable negligence, rendering a physician liable for an injury resulting therefrom.26 And a physician is liable for his own negligent acts though the acts of others may have aggravated the injury.27 And partners in the practice of medicine are responsible for the negligence of each other within the scope of their partnership business.28 And a surgeon is answerable for the want of proper skill of his apprentice.29

S. W. 755; Hitchcock v. Burgett, 38 Mich. 501; Myers v. Holborn, 58 N. J. L. 193, 30 L. R. A. 345, 55 Am. St. Rep. 606, 33 Atl. 389. And see Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696.

"Carpenter v. Blake, 60 Barb. 488; Beck v. German Klinik, 78 Iowa, 696, 7 L. R. A. 566, 43 N. W. 617.

Hathorn v. Richmond, 48 Vt. 559; Wilmot v. Howard, 39 Vt. 449, 94 Am. Dec. 338; Carpenter v. Blake, 75 N. Y. 12.

Hyrne v. Erwin, 23 S. C. 226, 55 Am. Rep. 15; Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N. E. 156; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632.

Hancke v. Hooper, 7 Car. & P. 81; Tish v. Welker, 5 Ohio S. & C. P. Dec. 725.

but before a dentist can be held liable for injury to a person from the improper extraction of his tooth by another, it must appear that such other was the employee of the dentist, over whose acts in the premises he had dominion and control; or that the dentist being called upon to do the work directed it to be done by such other person, and under circumstances justifying the belief that such person was aiding him; or that he held out to the public that the other dentists in his office were his assistants, and that the person injured submitted to such other, supposing the dentist sought to be held responsible to be the head of the business. Wilkins. Farrell, 10 Tex. Civ. App. 231, 30 S. W. 450.

Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674.

31Ibid.

The condition a patient was in when a physician was called affects the question of damages, but does not control the right of action for malpractice; that right depends upon the continuing or

physician can only be held liable for injurious results following his treatment because of the condition of the patient, when the condition was such that ordinary professional intelligence and skill should have shown him that such results would follow.32

504. Malpractice of physician making official certificates.-Physicians making certificates as to the mental or physical condition of persons, under statutory provisions authorizing the admission or confinement of such persons in asylums, hospitals, or other public institutions, are not clothed with judicial immunity, but are chargeable with that negligence which is chargeable to other experts who do not use the care and skill which their profession per se implies that they will bring to their professional work.88 And a physician who signed a lunacy certificate, under which another is confined as a lunatic, without due care and proper inquiry, is none the less liable in trespass for the negligence of his act because he acted honestly.34 And maliciously making certificates authorized by law, under which, with the approval of a judge, a person is confined in an insane asylum, renders the physician making them liable to an action for false imprisonment, where such certificates were false and fraudulent. 35 Each of two physicians required by law to examine and certify as to the sanity of persons, however, is liable only for his own act, and for the correctness of the certificate in the terms in which he gave it. And physicians making a false certificate of insanity are not liable, where they made a careful examination, and were not negligent; and a

intervening conditions which are due to a neglect of duty on the part of the physician after he has undertaken to exercise his skill. Mullin v. Flanders, 73 Vt. 95, 50 Atl. 813.

82 Wells v. World's Dispensary Medical Asso. 27 N. Y. Week. Dig. 73, 9 N. Y. S. R. 452.

Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338; Pennell v. Cummings, 75 Me. 163; Hall v. Semple, 3 Fost. & F.

337.

"Hurlehy v. Martine, 31 N. Y. S. R. 471, 10 N. Y. Supp. 92.

And this is the rule though the statute does not say that the certificate authorizes or directs the confinement, but only that it forbids the confinement without such certificates; and an action therefor is barred by the statute of limitations Ibid.

for false imprisonment.

But the fact that one physician consulted another, who had joined him in Hall v. Semple, 3 Fost. & F. 337. signing a medical certificate pursuant In the case last above cited, how to a statutory provision that no person ever, it was held that a physician shall be received into certain licensed who has merely signed a certificate, houses for the insane without a medical under a lunacy act providing that no certificate signed by two physicians, and person shall be received in certain li- gave him an impression that the cercensed houses for the confinement of the tificate should be signed, does not reninsane without a medical certificate, is der the former liable to the alleged lunanot liable as in trespass to a lunatic tic who was confined pursuant to such who was confined pursuant thereto, certificate. Hall v. Semple, 3 Fost. & where he did nothing more toward caus- F. 337. ing such confinement.

"Pennell v. Cummings, 75 Me. 163

mistake as to fact raises no presumption of negligence.37 And it has been held that, in the absence of statutory provision therefor, there can be no civil action for damages against a physician, based upon the insufficiency of the methods which he pursued in reaching and certifying a conclusion required by law to be based on due inquiry and proper examination.38

505. Liability of master for malpractice of physician employed for servants. When a master sees fit to furnish medical attendance to his servants, the relation of master and servant does not exist between him and the physician or surgeon employed by him to render services to his employees, so as to render the master liable for malpractice of such physician or surgeon;39 though negligence in employing a surgeon by an employer for an employee renders him liable for damages sustained through the surgeon's inefficiency. And a statutory pro

Williams v. LeBar, 141 Pa. 149, 21 302, 57 N. E. 339; O'Brien v. Cunard Atl. 525.

"Pennell v. Cummings, 75 Me. 163. Within this rule, if physicians appointed under an act providing for the commitment of persons to a hospital on the certificate of two physicians, based on due inquiry and personal examination as to such person's sanity, have not made the inquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance are not sufficient to justify a commitment, the municipal officers should not commit; and if they do, they are responsible therefor, and not the physician. Ibid.

And where, in an action against physicians issuing a certificate of insanity, it is claimed that the certificate was not only false, but false through malice or negligence, it is open to the defendants to prove precisely what were the eircumstances under which they acted, what inquiry they made, and what the information was on which they proceeded. Ibid.

8. S. Co. 154 Mass. 272, 13 L. R. A. 329, 28 N. E. 266; Chicago, B. & Q. R. Co. v. Howard, 45 Neb. 570, 63 N. W. 872; Haggerty v. St. Louis, K. & N. W. R. Co. 100 Mo. App. 425, 74 S. W. 456; Richardson v. Carbon Hill Coal Co. 10 Wash. 648, 39 Pac. 95; Galveston, H. & S. A. R. Co. v. Scott, 18 Tex. Civ. App. 321, 44 S. W. 589; Southern P. Co. v. Mauldin, 19 Tex. Civ. App. 166, 46 S. W. 650; Union P. R. Co. v. Artist, 23 L. R. A. 581, 9 C. C. A. 14, 19 U. S. App. 612, 60 Fed. 365.

Liability of a railroad company for failure to provide for an injured brakeman is not incurred where the best mediical treatment that could be obtained at the little town where he was injured was procured, and he was removed as soon as possible, with his intelligent and conscious consent, without any objection of the physicians who had attended him, to another town where a place was provided for him, and competent surgeons were awaiting him; but he insisted on being taken still farther to the town where he lived, and he died soon after reaching home from loss of blood. Ohio & M. R. Co. v. Early, 141 Ind. 73, 28 L. R. A. 546, 40 N. E. 257.

"Quinn v. Kansas City, M. & B. R. Co. 94 Tenn. 713, 28 L. R. A. 552, 45 Am. St. Rep. 767, 30 S. W. 1036; South Florida R. Co. v. Price, 32 Fla. 46, 13 So. 638; York v. Chicago, M. & St. P. R. Co. 98 Iowa, 544, 67 N. W. 574; Atchison, T. & 8. F. R. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282; Clark v. Missouri P. R. Co. 48 Kan. 654, 29 Pac. 1138; Eighmy v. Union P. R. Co. 93 Iowa, 538, 27 L. R. A. 296, 61 N. W. 1056; Pearl v. West End Street R. Co. 176 Mass. But to hold an employer liable for the 177, 49 L. R. A. 826, 79 Am. St. Rep. incompetence of a surgeon employed by

Richardson v. Carbon Hill Coal Co. 6 Wash. 52, 20 L. R. A. 338, 32 Pac. 1012; Laubheim V. De Koninglyke Nederlandsche S. B. Maatschappy, 107 N. Y. 227, 1 Am. St. Rep. 815, 13 N. E. 781.

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