One who holds himself out as a healer of diseases, and accepts employment as such, must be held to the duty of reasonable skill in the exercise of his vocation; failing in this he must be held liable for any dam ages proximately caused by unskilful treat ment of his patient; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900. Gross negligence may con stitute criminal liability ; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5 ; and an unlicensed practitioner may be guilty of manslaughter; 1 Witth. & Beck. Med. Jur. 79.
The law imposes on a surgeon the duty of being reasonably skilled in his profession, and the exercise of care and prudence in the application of that skill, and if he be wanting in either, to the injury of his pa tient, he is liable for damages; Rowe v. Lent, 62 Hun 621, 17 N. Y. Supp. 131; al though there may be no contractual relation between the patient and the physician; Du Bois v. Decker, 130 N. Y. 325, 29 N. E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529. If one physician, being unable to attend, sends an other in his stead, the former is not liable to one who is injured by the unskilfulness of the latter, since the latter, being engaged in a distinct and independent occupation of his own, is not the servant or agent of the former ; Myers v. Holborn, 58 N. J. L. 193, 33 Atl. 389, 30 L. R. A. 345, 55 Am. St. Rep. 606. See 8 East 347; McCandless v. Mc Wha, 22 Pa. 261; Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Fleet v. Hollen kemp, 13 B. Monr. (Ky.) 219, 56 Am. Dec. •63.
A specialist must exercise a higher degree of skill and care than an ordinary practi tioner; Rann v. Twitchell, 82 Vt. 79, 71 Atl. 1045, 20 L. R. A. (N. S.) 1030; Feeney v. Spalding, 89 Me. 111, 35 Atl. 1027; Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38.
What is proper and usual practice in diag nosis and treatment and what constitutes ordinary care can only be shown by expert testimony ; McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870; Klodek v. Logging Co., 71 Wash. 573, 129 Pac. 99.
Where a physician recommends a method of treatment approved by the standard au thorities and consults another physician of intelligence, it cannot be held as a matter of law that he failed to exercise ordinary care; McKee v. Allen, 94 Ill. App. 147. Where there is a difference of opinion among skilful surgeons, a surgeon may exercise his own judgment; Vanhooser v. Berghoff,
Mo. 487, 3 S. W. 72; if he keeps within ap proved methods, he is not liable for a mis take of judgment ; Dye v. Corbin, 59 W. Va. 266, 53 S. E. 147 ; nor where the patient neg ligently failed to observe his directions or purposely disobeyed them; Geiselman v. Scott, 25 Ohio St. 86; McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870 ; nor where he called in two other competent surgeons who testified that the injury was difficult to detect ; English v. Free, 205 Pa. 624, 55 Atl. 777; nor if he requests additional assist ance and is refused, even though he made a mistake in treatment ; Haering v. Spicer, 92 App. 449; nor if prevented from re ducing a dislocation by the refusal of the patient to submit to an operation; Little john v. Arbogast, 95 Ill. App. 605 (but if the patient is in a condition in which it would be dangerous to break and reset an arm, and the patient refuses to permit it, the de fendant is not relieved of liability for want of ordinary skill; Morris v. Despain, 104 Ill. App. 452).
If an office patient receives careful and skilful treatment and then fails to return to the physician, and in consequence suffers Injury, the patient has no right of action ; Dashiell v. Griffith, 84 Md. 363, 25 Atl. 1094.
If an arm was unskilfully dressed, result ing in a defective arm, the surgeon would be liable, although the neglect of the patient or those in charge of him made it worse ; such neglect affected only the damages; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338; Du Bois v. Decker, 130 N. Y. 325, 29 N. E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529; Mc Cracken v. Smathers, 122 N. C. 799, 29 S. E. 354.
The fact that the injured limb is defective after treatment is no evidence of negligence; McGraw v. Kerr, 23 Colo. App. 163", 128 Pac. 870; nor is the death of the patient imme diately after the operation (amputation of a limb) ; Staloch v. Holm, 100 Minn. 276, 111 N. W. 264, 9 L. R. A. (N. S.) 712.
He is liable for negligence where he fails to remove a piece of surgical gauze after an operation; Ruth v. Johnson, 172 Fed. 191, 96 C. C. A. 643. Where a surgical sponge was left in the body of a person operated on, it was held that the surgeon could not rely on the count of sponges by the nurse ; he also must exercise care in determining whether any foreign substance remains in the body ; Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007, 46 L. R. A. (N. S.) 611.