MALPRACTICE. In forensic medicine, had professional treatment, as of disease, pregmancy, or bodily injury, from reprehensible iffnorance, carelessness, or with criminal intent. offer ing his services to the public, the doctor or sur geon impliediy contracts that he possesses and will employ reasonable skill and learning. will exercise reasonable care, and exert his hest judg ment to effect good results. This obligation rests on any person making a pretense of professional knowledge. Failure to do this renders him liable for resultant injuries to the patient, criminally or by way of civil suit, according to the degree of his negligence and fault.
Criminal liability arises from gross negligence or lack of competency. The practitioner is not liable for error of judgment or inadvertent mis take. But where manslaughter is charged, he cannot plead the patient's consent as a defense, only the exercise of due care and skill will pro tect him. Where the results of a physician's fault are not so serious as to constitute an offense against the public and render him liable criminally, he may still be obliged to make com pensation to the patient for the damages result ing from his wrongful acts through an action at law. But a physician is not an insurer, and in the absence of express agreement he does not warrant a cure. nor is the test to be applied to his performance that of the highest order of skill and care obtainable, but that of the average of members of his profession in good standing in similar localities, considering the state of medi cal science of the time. Thus the requirement in knowledge or skill imposed upon the frontier sur is not that of the attending physician of a t city lospital. Ili, responsibility before the law is in.t fixed by time recognition of the tests of any particular school, homuuropathit., allopathic, ur empirical. is reasonable care must be determined by the partimmlar case, though the same degree must be rendered to the poor of the charity hospital as to time millionaire's child. This obligation to use proper diligence, care, and skill includes not only diagnosis and the cm of suelm obtainable remedies and appli vom ances as discovery arid experience have proved most beneficial. hut also to the giving of proper instructions to patients and nurses, and to free dman from error in writing.
On undertaking a case the law implies a con tract that time physician continue his attendance while treatment required. unless terminated by discharge by the patient or his withdrawal from the ease on proper notice. Where net is brought against him for abandoning a ease. the burden of proof of showing his diseharge rests with the physician. When lie informs a patient that his disease or injury is curable when he knows it to be incurable or is ignorant as to the truth of his representation, and the patient is induced to undergo his treatment thereby. he is liable for an action for deceit. It will also be a defense for a suit on his part to recover his fees. 'When the patient's condition at the time of treatment is a contributing cause to the results of malpractice, in the recovery of damages he will be held liable only for those aetually con sequent to his acts. Where a praetitio»er pns the required qualification and applies his skill and judgment with ordinary diligence he will not he eonshb.red responsible for an honest mistake or error of judgment in diagnosis, where there is reasonable doubt as to the course to lie followed. This does not include gross errors or failures to keep within recognized and approved methods.
The acts of the patient may be a contributing cause. and when hiy negligence has been a proximate factor to the injury, the physician cannot be held liable at law for malpractice. Thus where the patient fails to comply with reasonable and necessary directions, even though such compliance is prevented by reason of his eondition, or where. through infancy or insanity, he is incompetent to understand the necessity of time treatment and those in charge refuse to enforce the treatment. There is impressed upon the patient an obligation to exercise prudence in proportion to the seriousness of his condition. In New York a judgment recovered by a physi cian for fees bars an action for malpractice.
Malpractice by a lawyer is evil practice in a professional capacity and the resort to methods and practices unsanetioned and prohibited by law. Consult the authorities referred to undei TORT.