A physician (X-ray) called in by another physician, to operate, is not required to make a special study of the case or to give advice as to possibility of injury resulting there from; Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. Ed. 815.
The physician's responsibility is the same when he is negligent as when he lacks ordi nary skill, although the measure of indem nity and punishment may be different ; Elw. Malp. 27; 3 Maule & S. 14 ; 1 Lew. C. C. 169; Broom, Leg. Max. 168, 169; Rowe v. Lent, 62 Hun 621, 17 N. Y. Supp. 131. See Lewis v. Dwinell, 84 Me. 497, 24 Atl. 945. Where a physician is charged with man slaughter, resulting from a surgical opera tion performed by him, it is error to charge that if deceased consented to the perform ance of the operation, defendant must be acquitted; State v. Gile, 8 Wash. 12, 35 Pac. 417.
It is proper in an action for malpractice to show the treatment given after the fendant gave up the case; Bower v. Self, 68 kan. 825, 75 Pac. 1021.
The rule as to using X-rays is the same as to other cases requiring ordinary care and prudence; Henslin v. Wheaton, 91 Minn. 219, 97 N. W. 882, 64 L. R. A. 126, 103 Am. St. Rep. 504, 1 Ann. Cas. 19.
He cannot perform an operation more seri ous than the one to which the patient has assented; Pratt v. Davis, 224 Ill. 300, 79 N. E. 562, 7 L. R. A. (N. S.) 609, 8 Ann. Cas. 197. But when a patient's assent was given to an operation less grave and dangerous to life, and while the person was under an an testhetic a rupture was found in the right groin, it was held that the operation on the latter was justified; Berman v. Parsonnet, 83 N. J. L. 20, 83 Atl. 948.
Where a surgeon was employed'to operate on a patient's right ear, and also operated on the left ear while the patient was uncon scious, it was held to be an assault, though the family consented thereto ; Mohr v. Wil liams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N: S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303. A surgeon may operate on a child in an emergency without the parents' con sent when told it was impracticable to ob tain it ; Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106, 41 L. R. A. (N. S.) 290; but a surgical operation is ordinarily unlawful when performed without the express or im plied consent of the patient; Awde v. Cole,
99 Minn. 361, 109 N. W. 812.
Where the wife of the defendant, being afflicted with a dangerous disease, was car ried by him to a distance from his residence and left under the care of the plaintiff as a surgeon, and after the lapse of some weeks the plaintiff performed an operation, soon after which she died, it was held, in an ac tion by the plaintiff against the defendant to recover compensation for his services, that the performance of the operation was within the scope of the plaintiff's authority, if, in his judgment, it was necessary or expedient, and that it was not incumbent on him to prove that it was necessary or proper under the circumstances, or that before he perform ed it he gave notice to the defendant, or that it would have been dangerous to the wife to wait until notice could be given to the defendant ; McClallen v. Adams, 19 Pick. (Mass.) 333, 31 Am. Dec. 140.
If physicians attending a woman deem it necessary for the preservation and pro longation of her life, to perform an opera tion, they are justified in doing so if she consents, whether her husband consents or not ; State v. Housekeeper, 70 Md. 162, 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340.
In England, at common law, a physician could not maintain an action for his fees for anything done as physician either while at tending to or prescribing for a patient ; but a distinction was taken when he acted as a surgeon or in any other capacity than that of physician, and in such cases an action for fees would be sustained; 1 C. & M. 227, 370 ; 3 Q. B. 928. But now by 21 & 22 Viet. c. 90, a physician who is registered under the act may bring an action for his fees, if not pre cluded by any by-law of the college of physi cians; 2 H. & C. 92. It has not been denied in this country ; Adams v. Stevens, 26 Wend. (N. Y.) 451.
In this country, the various states have statutory enactments regulating the practice of medicine. See Witth. & Beck. Med. Jur. An unlicensed physician can not maintain an action for medical attendance and medicines; Bailey v. Mogg, 4 Den. (N. Y.) 60 ; Haworth v. Montgomery, 91 Tenn. 16, 18 S. W. 399 ; Holland v. Adams, 21 Ala. 680 ; contra, Hew itt v. Wilcox, 1 Mete. (Mass.) 154.