Bad or unskilful practice in a physician or other professional person, whereby the health of the patient is injured, is usually called malpractice (male praxis).
Wilful malpractice takes place when the physician purposely administers medicines or performs an operation which be knows and expects will result in damage or death to the individual under his care ; as in the case of criminal abortion; Elw. Malp. 243; People v. Lohman, 2 Barb. (N. Y.) 216.
Negligent malpractice comprehends those cases where there is no criminal or dishonest object, but gross negligence of that attention which the situation of the patient requires ; as if a physician should administer medi cines while in a state of intoxication, from which injury would arise to his patient.
Ignorant malpractice is the administration of medicines calculated to do injury, which do harm, which a well-educated and scien tific medical man would know were not proper in the case; Elw. Malpr. 198 ; Corn. v. Thompson, 6 Mass. 134 ; 5 C. & P. 333; 5 Cox, C. C. 587; Whart. & St.' Med. Jur. 755.
This offence is a misdemeanor (whether it be occasioned by curiosity and experi ment or neglect), because it breaks the trust which the patient has put in the physician, and tends directly to his destruction. See 3 Chitty, Cr. Law 863; 4 Wentw. Pl. 360; 2 Russ. Cr. 277 ; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Rice v. State, 8 Mo. 561; 3 C. & P. 629.
Besides the public remedy for malprac tice, in many cases the party injured may bring a civil action; Landon v. Humphrey, 9 Conn. 209, 23 Am. Dec. 333 ; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338.
Civil cases of malpractice are of very fre quent occurrence on those occasions where surgical operations are rendered necessary, or supposed to be so, by disease or injury, and are so performed as either to shorten a limb or render it stiff, or otherwise prevent the free, natural use of it, by which the party ever after suffers damage. This may embrace almost every kind of surgical opera tion; but nine-tenths of all such cases arise from amputations, fractures, or dislocations ; Elw. Malpr. 55.
To the performance of all surgical opera tions the surgeon is bound to bring at least ordinary skill and knowledge. He must ap ply without mistake what is settled in his profession. He must possess and practically exercise that degree and amount of knowl edge and science which the leading authori ties have pronounced as the result of their researches and experience up to the time, or within a reasonable time, before the issue or question to be determined is made ; Elwell, Malpract. 55 ; 6 Am. L. Reg. N. S. 774; Hew
itt v. Eisenbart, 36 Neb. 794, 55 N. W. 252.
Although the physician is civilly and crim inally responsible for his conduct while dis charging the duties of. his profession, he is in no sense a warrantor or insurer of a fa vorable result, without an express contract to that effect ; Elwell, Malp. 20; 7 C. & P. 81.
Every person who offers his services to the public generally, impliedly contracts with the employer that he is in possession of the necessary ordinary skill and experience which are possessed by those who practice or profess to understand the art or science, and which are generally regarded by those most conversant with the profession as nec essary to qualify one to engage in such busi ness successfully. This ordinary skill may differ according to locality and the means of information; Elw. Malp. 22, 201; 3 C. & P. 629; Smothers v. Hanks, 34 Ia. 286, 11 Am. Rep. 141, n.; Dorris v. Warford, 124 Ky. 768, 100 S. W. 312, 9 L. R. A. (N. S.) 1090, 14 Ann. Cas. 602; Rogers v. Kee, 171 Mich. 551, 137 N. W. 260; Hallam v. Means, $2 Ill. 379, 25 Am. Rep. 328 ; State v. Housekeeper, 70 Md. 162, 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340; Hewitt v. Eisenhart, 36 Neb. 794, 55 N. W. 252; Boon v. Murphy, 108 N. C. 187, 12 S. E. 1038.
It is not the highest order of skill attain able, but that which is possessed by the average of the profession in good standing; Wohlert v. Seibert, 23 Pa. Super. Ct. 213. Skill in diagnosis and treatment should be determined by the rules of his own school; McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870. If the treatment of the patient has been honest and intelligent, only ordinary care and skill is required of defendant and errors of judgment will be overlooked; Car penter v. Blake, 75 N. Y. 21. Experimenting with a patient outside of the rules of prac tice renders the practitioner liable in dam ages; McNevins v. Lowe, 40 Ill. 209. Any one who treats patients as a clairvoyant must be held to the same degree of care as a regular practitioner ; Bibber v. Simpson, 59 Me. 181; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900.