Almond v. Nugent , 34 Iowa 300 ( 1872 )

Cole, J.

The court gave to the jury the following instructions, asked by the plaintiff, to wit: “ 1. That the general principles of law defining the civil responsibilities of physicians and surgeons are the same as those that apply to and govern the conduct of lawyers, engineers, mechanics, ship-builders, brokers and other classes of men whose employment requires them to transact business requiring special skill and knowledge.

“ 2. The implied contract of the physician and surgeon is, that he possesses and will employ in the treatment of the case, such reasonable skill and diligence as are ordinarily exercised in his profession by thoroughly educated physicians and surgeons ; and in judging of the degree of skill required, regard is to be had to the advanced state of the profession at the time of treatment.

“ 3. The standard of ordinary skill in the profession is on the advance, and he who would not be found wanting must apply himself with diligence to the most accredited sources of knowledge. He is bound to be up to the improvements of the day, for the patient is entitled to the benefit of these increased lights. The law has no allowance for quackery. It demands qualifications in the profession. He is bound to exercise his art or profession rightly and truly as he ought; for less than this he will be liable in damages to the injured. party.” Each of these instructions was duly excepted, to, and the giving of them is now assigned as error.

In the case of Smothers v. Hanks, ante,page 286, we had occasion to determine the correct legal standard of the skill, care and diligence required of physicians, surgeons, etc. That standard is the reasonable skill, care and diligence ordinarily exercised by the members of the profession at the time of the treatment in question, having regard to the advanced state of the profession at the time. The idea is, that degree of skill and diligence which ordinarily characterizes the profession as a whole, or generally; and not that of any particular class dr portion of the profession. In that case also we reviewed the case of McCandless v. McWha, 22 Penn. St. 261, upon Judge Woodward’s opinion, from which much of the language of each of the foregoing instructions was taken. We found that it was directly decided in that case that the general principles of law defining the civil responsibilities of physicians were not the same as apply to engineers, mechanics and shipbuilders. And we also found that it was not there decided that the skill and diligence required of physicians and surgeons was that ordinarily exercised by thoroughly educated members of that profession; and it may be further remarked that the closing sentence of the third instruction was also taken from the same opinion, and repeats the error of that learned judge who applies the pithy saying of Eitzherbert, that “ it is the duty of every artificer to exercise his art rightly and truly as he ought,” to professional men as well as artificers, the very error into which the nisi prims court had fallen, and for which its judgment was, by the same opinion, reversed. There was error, therefore, in each of the instructions above set out.

On the trial, the court admitted evidence of the declarations of the partner Sherriek, who was then deceased. It is unnecessary to review the several questions and answers, seriatim. Only those declarations were competent, which were made> by the partner while engaged in, or which were connected with, the business of the partnership. Upon the subject of exemplary damages, we need only remark, that we see nothing in the case, as now presented, justifying such damages, or showing that the jury allowed such.

Reversed.