Chapter XVII: Part I: Statutes and Charters (9)

The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of _April_ 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant’s care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. _Kingston_, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. _Pidcock_, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. _Kingston_, the surgeon, then proved that in _July_ 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff’s arm was almost straight; he could not turn his wrist, and had no motion in his elbow. That the witness broke the callous and set it again, and made (what the witness himself described as) a very fine cure, which was spoken of about the country. He imputed the failure of the defendant in his attempt to cure the plaintiff to _negligence and carelessness_: an apprentice boy (he said) might have known better: that the bone might have been set within five hours after the accident; though he admitted that the swelling, if much, must first be reduced, which might take a fortnight. And he recommended the plaintiff to bring an action. He also spoke to a conversation with the defendant, who considered it as a very difficult dislocation to reduce; and said that he would make a compensation to the plaintiff. The learned Judge told the jury that the gist of the action was negligence; of which direct evidence might be given; or it might be inferred by the jury, if the defendant had proceeded without any regard to the common ordinary rules of his profession, _That unskilfulness alone, without negligence, would not maintain the action_. And that he was at a loss to state to the jury what degree of skill ought to be required of a village surgeon. But that, whether or not his direction were accurate in this respect, at any rate the witness _Kingston_ imputed only _negligence_ and _carelessness_ to the defendant and _Pidcock_, in not discovering the fracture of the bone of the arm when they reduced the dislocated elbow; which there was no doubt was properly reduced: and that considering all the circumstances of the case, he did not think that such gross negligence was imputable to the defendant as to make him liable in damages to the plaintiff. The report concluded by stating that the jury found a verdict for the defendant, much to the Judge’s satisfaction; who intimated that the vaunting language of the witness _Kingston_ must have diminished his credit with the jury.

_Shepherd_ Serjt. and _Espinasse_ were now to have shewn cause: but though all the Court seemed to be satisfied, as well now as when the rule was moved for, that the action well lay for unskilfulness in the profession of a surgeon; yet upon a revision of the evidence as reported, they asked of the plaintiff’s counsel what evidence there was of _want of skill_ in the defendant; _Kingston_, the surgeon, only imputing to him _negligence_ and _carelessness_; which the learned Judge had stated to be a ground of action, and had left to the jury for their consideration; but which the jury had negatived; as indeed the evidence well warranted them in doing.

_Gurney_, in support of the rule, said, that it was to be collected from the whole of _Kingston’s_ evidence that he imputed want of skill to the defendant; and that was shewn by the expression used by him, that an apprentice boy might have known better. That so much skill at least was required of a surgeon as to be able to tell whether or not an arm was broken, or an elbow dislocated. But it was enough that the question of want of skill was wholly withdrawn from the consideration of the jury.

Lord _Ellenborough_ C. J. The surgeon who was examined specifically imputed the failure of the cure to _negligence_ and _carelessness_, whatever other expression he may have used in the manner of giving his evidence, upon which the learned Judge has commented. Therefore, however we may differ from the learned Judge, as I certainly do, in thinking that an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations; which is proved by the case in _Wilson_, and indeed by all analogous authorities; in the same manner as it is necessary for every other man to have it in the course of his employment; as the farrier who undertakes to cure any horse must have common skill at least in his business, and that is implied in his undertaking: and although I am ready to admit that a surgeon would be liable for _crassa ignorantia_, and would be justly responsible in damages for having rashly adventured upon the exercise of a profession, without the ordinary qualification of skill, to the injury of a patient: yet the question did not arise upon the evidence in this case; for no want of skill was imputed to the defendant: and therefore the opinion of the learned Judge upon that point does not affect the merits of the verdict upon the evidence in the cause.

The other Judges concurred; and _Grose_ J. referred to 3 _Blac. Com._ (_ch._ 9. _p._ 163, 4.) as confirming the general doctrine.

Rule discharged.

APPENDIX.