Patten v. Wiggin , 51 Me. 594 ( 1862 )

The opinion of the Court was drawn up by

Appleton, C. J.

The instructions given were correct. Indeed, the propriety of most of them is not controverted. A plaintiff, in a suit against a physician for malpractice, must prove "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 or ordinary skill; or, he is bound to prove, in the same way, that having such knowledge and skill, he neglected to apply them with such 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. Leighton v. Sargent, 7 Foster, 460. The same facts which would authorize a recovery for malpractice would constitute a defence in a suit for professional services. Physicians do not warrant the success of their prescriptions. "The law,” remarks Mr. Justice Woodward, inMcCandless v. McWha, 22 Penn., 261, "demands qualification in the profession practised; not extraordinary skill, such as belongs only to few men of rare genius and endowments, but the degree which ordinarily characterizes the profession.” The same views of the law were laid down in Simonds v. Henry, 39 Maine, 155.

The instructions given were in accordance with the well settled principles of law. The one requested, had been given in substance. If other instructions had been desired, they should have been-requested.

Exceptions overruled.

Rice, Cutting, Davis and Kent, JJ., concurred.