Smothers v. Hanks , 34 Iowa 286 ( 1872 )

Beck, Ch. J.,

dissenting. —I am unable to concur in the conclusion arrived at in the foregoing opinion. In my judgment, the rule there given to determine the skill and diligence to be exercised by physicians and surgeons in the practice of their respective professions, is incorrect. It is, in effect the average of the ordinary skill of the whole profession, includihg all grades of learning and proficiency possessed by those who may be considered as belonging to it. Stated more explicitly, it is this: The skill of all classes in the profession, the indifferent, the good and the excellent are to be considered, and the average thereof is the, skill the law requires.

In my opinion, the rule cannot be supported upon reason, and I do not think that it is recognized by the authorities. I will briefly point out objections to it, which, to my mind, are insuperable.

In the first place, the standard fixed by the rule is entirely imaginary, and can have no actual existence. No physician ever possessed the skill demanded by it. He is either above or below the standard. An average, a mean between the thoroughly educated, the well educated, and the moderately educated physicians, the classes into which the profession is divided by this opinion, would be neither the one class nor the other, but would constitute another class, or rather a standard for another class. In this newly created class would be found no member of the medical profession. Tet, this ideal standard, which, in fact, is the measure of no man, is applied to all. The rule cannot, therefore, be practically applied. Suppose an attempt be made to do so, and a member of the profession is asked whether a given treatment of a patient was in accord with the exercise of the skill demanded by this rule. In the first place, it would exceed the art of man to divine just the amount of skill to be possessed by one, in order to be the average surgeon or physician. Inasmuch as the witness never beheld the exercise of the precise degree of skill required, it would be impossible for him to determine either the fact or effect of its exercise. He would, therefore, be utterly unable to impart the information required.

There will be found no such difficulty, in applying a rule based upon the absolute skill and acquirements of individuals or classes of the profession. The skill of a thoroughly educated or indifferently educated surgeon, may be readily determined. So the skill of the classes to which they belong, may be known and comprehended. It would not be difficult to ascertain the degree of skill possessed by the great body of the profession — by that class which belongs to neither extreme, the thoroughly educated or the uneducated. A rule which takes as a measure, the'' skill of one of these classes, may be practically applied. The rule of the majority opinion, in my judgment, cannot be.

A rule recognizing as a standard that degree of skill possessed by the greatest number of the profession, or by those in extensive practice, or those educated in a certain manner, would possess elements of certainty and practical capacity for application not inherent in a rule like the one recognized by the majority opinion, which is purely ideal. I think there can be no difficulty in deducing such a rule from reason and sound legal principle.

Another objection to the rule under consideration may be named. The standard prescribed thereby is lowered by the less skillful in the profession. These, which the foregoing opinion designates as the moderately educated, must be considered in arriving at the average which is adopted as the measure. Their want of skill diminishes the standard arrived at, by meragvag them along with the thoroughly educated.

In my opinion, the rule of the instruction condemned by the majority of this court is correct. I will consider it briefly. It requires a surgeon to exercise such skill as is ordinarily possessed by “thoroughly educated surgeons, having regard to the improvements and advanced state of the profession.” It is well first to determine the import of this language. A “thoroughly educated surgeon” is one fully and completely instructed in his profession. The words relate to the extent of attainments in the principles and theories of the profession, and imply that he, of whom they are spoken, is familiar with the science- in all its departments. They also imply proficiency in the cognate sciences, without which the profession could not be successfully practised. In the fundamental and practical principles of all these he must be fully instructed. The term “ thoroughly educated” does not apply to knowledge possessed of matters outside of the principles of the profession, to mental ability and force, nor to other things which unite in men of great superiority. The education required must be in the profession in its present state, with all its improvements, the fruits of experience and progress — in the • science of to-day, not of the past. The rule of the instruction demands the exercise of such skill, as is ordinarily possessed by those whose attainments are of the character just indicated. . The term “ skill,” here used, applies to knowledge of the science, and readiness and dexterity in its application to practical purposes. The instruction exacts of the surgeon the exercise of such knowledge of his profession, and dexterity in its application, as is ordinarily possessed by men “thoroughly educated in” — familiar with, the principles of the science in all its departments. The standard of skill, here fixed, is that of those whose knowledge covers the whole field of the science. It prescribes no test drawn from experience and practice.

The instruction, in my opinion, is correct. It recognizes the progress of the profession, and what is true in all other professions as well as surgery, that there can be no success attending one who pursues it, unless he keeps up with the progress the science is continually making. Those requiring the surgeon’s aid have a right to demand all the benefits which the science of to-day can give them; they do not employ one whose profession is of the past. In no department of human knowledge has there been such progress within a comparatively recent period, as in the healing art. For centuries the science of medicine was stationary. Twelve hundred years after Galen it had made no progress; his works, during the whole of that period, were undisputed authority upon all questions. During the last two hundred years, and especially in the present century, the science has made constant and wonderful progress. The discoveries made within our own days, within the time of many living physicians, have completely overthrown old pathological theories, and required the abandonment of remedies before universally used and approved. Less than forty years ago venesection was a common practice of the profession in the treatment oi fevers. Now it is seldom resorted to, in such diseases. The pharmaceutical chemists, within a very recent period, have, discovered many invaluable remedial agents. The ophthalmoscope has revealed the fact that the conjectures concerning many diseases of the eye, before uniformly received by the profession, were wrong. Every day brings new discoveries of remedies, or important and useful suggestions relating to the treatment of diseases. A physician, whose practice has extended through a few years only, has been compelled, in following the progress of his profession, to discard many old theories and adopt new ones. In surgery the progress of the present day is even more remarkable. The improvements in this science, dur ing the present century, more than equal the progress made in all prior time. The cunning instruments recently invented, the new anaesthetic agents brought into use, the increased knowledge of the human body and its functions, etc., etc., enable the surgeon now to effect cures that, in past ages, would have been considered possible only by the interposition of miraculous power. No one can suppose the goal of perfection has been reached, and that no new thing in the dominion of medicine and surgery can be discovered. The events of the present demonstrate that, at this very day, the progress in these sciences is at an accelerated rate. Is not diseased and afflicted humanity entitled to all the benefits of this progress ? Dare we say that a remedy of ’ yesterday is sufficient, when the progress and experience of to-day have taught the profession that there is something better ? May we pronounce surgical operations, done in accordance with the canon of the profession in force fifty years ago, without the instruments and efficient anaesthetics of to-day, skillfully performed ? Are we prepared to approve a practice which has been discarded fifty years ? If not, can we announce as a rule of the law that a physician or surgeon may be five years, one year, or one month behind the progress of his profession \ The law, progressing with this age, will hold him inexcusable, who, in any avocation of life, is not fully up to the standard of the present. This doctrine 'must be true of the members of a profession to whose shill is committed the lives of the people.

It will be remembered that the instruction under consideration does not require of the surgeon the highest shill, nor hold him liable for a failure to exercise the highest ability. He is responsible in ease he has not prepared himself for the discharge of the duties of his profession, by fully acquiring theoretical knowledge of its principles as they are developed in its present advanced state. Nothing less can be required without awarding a premium upon ignorance, and placing an obstacle in the way of progress.

But it is said that the instruction is erroneous, because it places the surgeon of the frontier village on a level with the experienced practitioner of the cities and seats of learning. As we have seen, tests of experience and practice are not within the scope of the instruction. But, it is shown, that the frontier surgeon, as to theoretical knowledge, is brought by the side of his professional brother of the city. And' why should he not stand there ? He may in vain plead, or rather it may in vain be urged in his behalf, for, I know, frontier men of no profession will seek such protection, that his opportunities for the acquisition of professional knowledge are more limited than those of a city. In this age of books, professional periodicals, and mails, the position wants the support of facts. ¥e may safely say that no respectable surgeon, wherever he may be, is uninformed of the progress and discoveries in his profession.

The foregoing views are not without the support of authority. McCandless v. McWha, 22 Penn. St. 261; Long v. Morrison, 14 Ind. 595.

It is my opinion that the judgment of the district court ought to be

Affirmed.