Leighton v. Sargent

Bell, J. The first question raised by this case relates — 468 — to the admissibility of the evidence offered by the defendant, that he hadjreceived a good medical and surgical education, and was a regularly educated and skilful surgeon and physician. At the first look, it would not seem that the decision of this question could involve the discussion of the principles upon which the action is maintained. But as our conclusion upon this incidental question rests upon those principles, we propose to state them at such length as clearly to show the points upon which we rest our decision. These principles are of great consequence to all the classes of professional men, who are employed by others to transact business requiring especial skill and knowledge. The duties and responsibilities of all these classes, as those of lawyers and physicians, engineers, machinists, shipmasters, builders, brokers, &e., are governed by the same general rules. 1 Banv. Inst. 403. These rules it is important should be settled and well understood, since there are times when the verdicts of juries tend to release professional men from even a reasonable responsibility, as there are others when they seem to hold every man who offers his services in any of the professions, to an over-rigid accountability, and to make him little less than a warrantor or insurer of the success of every business in which he engages. At the present moment, it is to be feared, there is a tendency to impose some perilous obligations, beyond the requirements of the law, upon some classes of' professional men., What, then, is the contract of the professional man with his employer, in regard to his qualifications and his conduct ? Or, since this contract is one implied by the law, what are the duties and obligations of the professional man, recognized by the law in these respects ? And here it may be laid down broadly, that without a special contract for that purpose, he is never a warrantor nor insurer. Hancke v. Hooper, 7 C. & P. 81. He never stipulates for success at all events, and1 he is never to be tried by the event. — 469 — By a special contract for that purpose, he may bind himself not merely to the exercise of skill, care and diligence, but to be responsible for results. He may undertake to do certain things, as, for example, a builder may agree to build a house or a ship of á certain description, and he then cannot excuse himself on the ground of his want of sufficient skill. In that case, the maxim of the civil law applies, spondetperitiam artis. So a surgeon may contract for the removal of a limb, the physician for the cure of a disease, or the lawer for the foreclosure of a mortgage, and by such a contract he becomes a guarantor of the result. He must be understood to have engaged to use a degree of diligence, and attention and skill adequate to the performance of his undertaking. It is his own fault, if he undertakes without sufficient skill, or applies less than the occasion requires. In that case imperitia culpae adnumeratur. It is in these cases alone, either of express contract to do certain work, or to accomplish certain results, or where such contract is necessarily implied, that the rule of the civil law, quoted as above by the elementary writers, has any application here. Story on Bail. 279; Chitty on Con. 165; 3 Black. Com. 122; 2 Greenl. Ev. 144; 1 Banv. Inst. 403. By our law, a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer, I. That he possesses that reasonable degree of learning, skill and experience which ■ is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business. In the language of Story, J., (Bailments 433,) “ in all these cases, where skill is required, it is to be understood that it means ordinary skill in the business or employment which the bailee undertakes for. For he is not presumed to engage for extraordinary skill, — 470 — which belongs to a few men only, in his business or employment, or for extraordinary endowments or acquirements. Reasonable skill constitutes the measure of the engagement, in regard to the thing undertaken.” Or, as it is said by Tindall, C. J., (Lanphier v. Phipos, 8 C. & P. 475,) “ every person who enters into a learned profession, undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that you will, at all events, gain your cause; nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a reasonable, fair and competent degree of skill.” This principle of the common law, as to the engagement of the professional man, for a reasonable degree of skill and no more, has been settled in the case of attorneys, in Pitt v. Yadden, 4 Burr. 2060; Laidler v. Elliot, 3 B. & C. 738; S. C. 5 D. & R. 635; Russell v. Palmer, 2 Wils. 325; Hunter v. Caldwell, 16 L. Jour. 2 B. 274; S. C. 11 Jur. 770, and 10 2 B. 69; Purves v. Landall, 12 C. & Fin. 91; Varnum v. Mustin, 15 Pick. 440; Stimpson v. Sprague, 6 Greenl. 470; Crooker v. Hutchinson, 1 Vt. Rep. 73; Holmes v. Peck, 1 R. I. Rep. 242; Wilson v. Russ, 7 Shep. 424; 1 Leigh’s N. P. 196; 2 Greenl. Ev. 120; 1 Saund. P. & E. 163; Chitty on Con. 165. In the case of physicians and surgeons, in Seare v. Prentiss, 8 East 347; Slater v. Baker, 2 Wils. 359; Moore v. Morgue, Cowp. 497; Hancke v. Hooper, 7 C. & P. 81; Lanphier v. Phipos, 8 C. & P. 475; Grannis v. Brandon, 5 Day. 260; Landon v. Humphry, 9 Conn. Rep. 209; Howard v. Graves, 15 Shep. 97; Gallaher v. Thompson, Wright 466; Mertz v. Detweiler, 8 W. & S. 376; 1 Saund. P. & E. 91; 1 Wms. Saund. 312, note 2; 1 Banv. Ins. 403; Bell’s Com. 459 ; and as to other employments in Pawtuary v. Walton, 1 Rolls. Ab. 92; Bull. N. P. 73; Story on Bail. — 471 — 280; §. 429 ; Paley on Agency 78; Philips v. Wood, 1 N. & M. 434. II. In the second place, the professional man contracts, that he will use reasonable- and ordinary care and diligence in the exertion of his skill and the application of his knowledge, to accomplish the purpose for which he is employed. He does not undertake for extraordinary care or extraordinary diligence, any more than he does for uncommon skill. The general rule is well settled, as in other cases of contracts supposed to be mutually beneficial to the parties, that the contractor for services to be performed for another, agrees to exert such care and diligence in his employment as men of common “care and common prudence usually exert in their own business of a similar kind. He agrees to be responsible for the want of such care and attention, and he stipulates in no event, without an express contract for that purpose, for any greater liability. See the cases before cited, and Kilsley v. Williams, 5 B. & A. 820; Patterson v. Gandasaqui, 15 East. 62; Howard v. Graves, 15 Shep. 97. Many decisions deny the liability of professional men even to this extent, since they decide that the surgeon or the attorney shall not be held responsible except for lata culpa or crassa negligent\a, manifest fault or gross negligence. Godefroy v. Dutton, 6 Bing. 461; S. C. 4 M. & P. 149; Purvis v. Landed, 12 C. &. F. 91; Wilson v. Russ, 7 Shep. 424; 1 Leigh’s N. P. 196. Perhaps nothing more is designed to be expressed in these cases than that the defendant is only liable for the want of ordinary care. Upon this point it might be made a question, whether a medical man is not bound to apply extraordinary care, because his charge relates to the lives and health of his patients, which are to them of unequalled importance and interest. But there is no pretence that the physician is bound by any other rule in this respect, than that which governs all — 472 — classes of men employed in works or services requiring skill; the rule of ordinary care and diligence. There is, of course, a difference in different cases, as to what constitutes ordinary care, dependent upon the importance and delicacy or difficulty of the thing to be done. “ Different things,” says 'Story, (Bailments, § 429,) borrowing a very ancient illustration, “ may require very different care. The care required in building a common doorway is quite different from that required in raising a marble pillar; but both come under the description of ordinary care.” Such differences must exist among the cases requiring medical attention. But the common rule still applies, which requires such care and diligence as men in general, of common prudence and ordinary attention, usually apply in similar cases, and not that extraordinary care which might be applied in such a case by very careful and prudent persons. III. In stipulating to exert his skill, and apply his diligence and care, the medical and other professional men contract to use their best judgment. Few cases can be supposed where but a single course of measures alone can be adopted, and many must occur, where great differences of opinion may exist as to the best course to be taken. In most cases judgment and discretion are required to be exercised. Freedom from errors of judgment is never contracted for by the attorney or the physician. Ordinary good judgment is necessarily implied in the possession of ordinary skill, and if such share of judgment is fairly exercised, any risk from mere errors and mistakes is upon the employer alone. He, too, has judgment to exercise in the selection of the physician or the lawyer whom he will employ; and if he makes a bad selection, if he fails to choose a man of the best judgment, the result is fairly to be attributed to his own mistake, and is not to be visited upon the man who has honestly done his best endeavor in his service. It is in accordance with these views that it has been often — 473 — decided, that a professional man is not responsible for errors of- judgment, for mere mistakes, in cases of reasonable doubt and uncertainty. Kemp v. Burt, 1 N. & M. 262; S. C. 4 B. & A. 424; Shilcock v. Passman, 7 C. & P. 289; Laidler v. Elliot, 3 B. & C. 738; S. C. 5 D. & R. 635; Montrion v. Jefferys, 2 C. &. P. 113; S. C. R. & M. 317; Godefroy v. Dalton, 6 Bing. 461; S. C. 4 M. & P. 149; Baikee v. Chadless, 3 Camp. 17; Pitt v. Yaldin, 4 Burr. 2060; Reece v. Rigby, 4 B. & A. 202; 1 Saund. P. &. E. 63; Chitt. Con. 165. They should be charged with the consequences of mere errors, only where such errors could not have arisen, except from want of reasonable skill or diligence. Hart v. Frome, 3 Jur. 547; S. C. 1 Rob. 595; 1 and C. & F. 193. The cases cited relate principally to attorneys, but, as has been remarked, the principles of the law on this subject apply equally to all classes of professional men. And the observations of Lord Mansfield, in Pitt v. Yaldin, 4 Burr. 2060, apply with equal force to the cases of medical men. “ Attorneys, who conduct themselves with honor and integrity, ought to be protected, when they act to the best of their skill and knowledge. Every man is liable to error, and I should be very sorry that it should be taken for granted that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt which he was employed to recover. A counsel may mistake as well as an attorney; yet no one would say that a counsel who-had been mistaken shall be charged with the debt.” In Percy v. Millandon, 20 Mart. R. 75, Porter, J. remarks “ It has been said that it will not be sufficient for a professional man to say, he acted to the best of his ability, because he should have formed a more just estimate of his own capacity before he engaged himself. This doctrine, if' sound, would make an attorney responsible for every error-of judgment, no matter what care or attention he exercised in forming his opinion. It would make him liable in all. — 474 — doubtful cases, where the wisdom or legality of one or more alternatives was presented for his consideration, no matter how difficult the subject was. But when a person who is appointed an attorney has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, we are of opinion that on the occurrence of difficulties in the exercise of it, which offer only a choice of measures, the adoption of a course from which loss ensues, cannot make the agent responsible, if the error was one into which a prudent man might have fallen. The contrary doctrine seems to suppose the possession, and require the exercise of perfect wisdom in fallible beings. No man would undertake to render a service to another on such severe conditions.” The uncertainty of the law is almost proverbial. Probavbly that of the medical profession is not less. Many sects among them entertain different and almost irreeoncileable theories as to the nature and mode of treatment of disease. Among all these it seems to be conceded that the characters and symptoms of disease vary in persons of different ages, sexes, and habits of life, and of different natural or acquired constitution ; and that the treatment of diseases, and that of wounds and fractures, must be more or less varied with the changes of climate and seasons, and with the peculiarities of persons and places. And that cases of sickness and accident, apparently similar, may yet be rendered substantially different by seemingly slight circumstances, easily overlooked, and sometimes difficult of detection. If this is so, the doubts and uncertainties which surround the medical and surgical practitioner, and the errors and mistakes to which he is unavoidably exposed, may well furnish a satisfactory explanation of unfavorable results, where a jury are satisfied of the reasonable skill, diligence, attention and care exhibited in the treatment. To charge a physician or surgeon with damages, on the ground of unskilful or negligent treatment of his patient’s case, it is never enough to show that he has not treated his — 475 — patient in that mode, nor used those measures, which in the opinion of others, even medical men, the case required ; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as the want of reasonable care and skill, for which he may be responsible. Alone, it is not evidence of the latter, and therefore the party must go further, and prove by other evidence that the defendant assumed the character, and undertook to act as a physician, without the education, knowledge and skill which entitled him to act in that capacity; that is, he must show that he had not reasonable and ordinary skill; or he is bound to prove, in the same way, that having such knowledge and skill, he neglected to apply them with sueh care and diligence as in his judgment, properly exercised, the case must have appeared to require; in other words, that he neglected the proper treatment from inattention and carelessness. The evidence in support of these two views must naturally be of a very different character. In the present ease, the declaration is-entirely ambiguous, as to which of these positions the plaintiff’s counsel would adopt or choose to insist upon. The declaration alleges that the injury occurred because the defendant so negligently, carelessly and unskilfully behaved himself in and about the treatment, &c., that for want of skill, and the proper application of splints, &e., by and through the mere neglect, default and unskilfulness of the defendant, the plaintiff was injured. It is, from this statement, uncertain whether it is to be insisted that the defendant was ignorant, and knew nothing of the proper surgical treatment of such an accident as the plaintiff had suffered; or that being properly educated and competently learned in his profession, he bad acted from negligence and carelessness, contrary to what must have been his better knowledge and judgment, if he had given proper attention to the case. Nothing in the declaration confined him to either of these views; and nothing had oc — 476 — curred in the course of the trial to restrict the plaintiff to the point of negligence. He was therefore at liberty to take his position before the jury, that the defendant was ignorant-and unskilful, or that he was negligent and careless, or if he so pleased, that he was both unskilful and negligent. Any evidence, then, calculated to repel the inference of ignorance and unskilfulness, to show that he was a man of suitable education and acquirements for the safe practice of his profession, must surely be competent and proper. Such evidence must change the whole position of the case before the jury, because if the jury were satisfied he had proper knowledge and skill, the only question must then be whether he had adopted the course of his treatment from mistake, mere error of judgment, or from negligence and want of ordinary care. This, it is obvious, presents a very different state of the question from that where the points of ignorance, negligence and error are to be considered. As the evidence in question seems to us both pertinent and material, as tending to show ordinary knowledge and skill, we are satisfied it should have been received, and for this cause the case must be sent back for a new trial. We have examined the declaration, and it seems to us sufficient. The evidence of the statements of the witness, made out of court, seem to have been properly rejected. New trial granted.