OF ACTIONS AGAINST MEDICAL PRACTITIONERS.
If a Physician, Surgeon, Apothecary, or other medical practitioner, undertakes the cure of any wound or disease, and by neglect or ignorance the party is not cured, or suffers materially in his health, such medical attendant is liable to damages in an action of trespass on the case: but the person must be a common Surgeon[141], or one who makes public profession of such business, as surgeon, apothecary, &c. for otherwise it was the plaintiff’s own folly to trust to an unskilful person, unless such person expressly undertook the cure, and then the action may be maintained against him also. See Bull. N. P. p. 73; 2 Esp. N. P. p. 601.
“And it seems that any deviation from the established mode of practice, shall be deemed sufficient to charge the Surgeon, &c. in case of any injury arising to the patient.” See Slater v. Baker and Stapleton. 2 Wils. 359. which was a special action on the case against a Surgeon and an Apothecary, for unskilfully disuniting the callous of the plaintiff’s leg after it was set, (see Appendix, p. 189) which it appears was done for the purpose of trying a new instrument. The Plaintiff recovered 500l. against the Defendants jointly, and the Chief Justice said he was well satisfied with the verdict. On a motion for a new trial, the judgment was affirmed by the whole Court.
In Seare against Prentice, 8 East. R. 348. it was determined that this action lies against a Surgeon for gross ignorance and want of skill in his profession, as well as for negligence and carelessness, to the detriment of a patient; though if the evidence be of negligence only, which was properly left to the jury, and negatived by them; the Court will not grant a new trial, because the jury were directed that want of skill alone would not sustain the action. See Appendix, p. 194.
In the case of Neale v. Pettigrew, a Surgeon was held responsible in damages for the negligence and unskilfulness of his apprentice or servant[142].
Though the cited cases are surgical, there is no doubt that similar actions would be maintainable against Physicians or other medical practitioners; but as internal injuries are less demonstrable than external, there might be some difficulty in obtaining the necessary evidence. We shall treat in another place of the criminal responsibility of persons undertaking cures in cases where death ensues from their mal-practice.