malpractice

Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff.

Bad or unskillful practice in a physician or other professional person, whereby the health of the patient is injured. Physicians and surgeons impliedly contract that they are reasonably and ordinarily qualified to practice the medical profession, and for a failure to possess and exercise such qualifications they are liable. 17 Ind. 115; 21 Minn. 464; 75 N. Y. 12. Willful malpractice takes place when the physipan purposely administers medicines or performs an operation which he knows and expects will result in damage or death to the individual under his care; as in the case of criminal abortion. Elwell, Malprac. 243 et seq.; 2 Barb. (N. Y.) 216. Negligent malpractice comprehends those cases where there is no criminal or dishonest object, but gross negligence of that attention which the situation of the patient requires; as, if a physician should administer medicines, while in a state of intoxication, from which injury would arise to his patient. Ignorant malpractice is the administration of medicines calculated to do injury,, which do harm, and which a well-educated and scientific medical man would know were not proper in the case. Elwell, Malprac. 198 et seq.; 7 Barn. & G. 493, 497; 6 Bing. 440; 6 Mass. 134; 5 Gar. & P. 333; 1 Moody & R. 405; 5 Cox, C. G. 587.

See Physician.

As applied to physicians and surgeons, this term means, generally, professional misconduct towards a patient which is considered reprehensible either because immoral in itself or because contrary to law or expressly forbidden by law.

In a more specific sense, it means bad, wrong or injudicious treatment of a patient, professionally and in respect to the particular disease or injury, resulting in injury, unnecessary suffering or death to the patient, and proceeding from ignorance, carelessness, want of proper professional skill, disregard of established rules or principles, neglect, or a malicions or criminal intent. See Rodgers v. Kline, 56 Miss. 816, 31 Am. Rep. 389; Tucker v. Gillette, 22 Ohio Cir. Ch. R. 669; Abbott v. Mayfield, 8 Kan. App. 387, 56 Pac. 327; Hibbard v. Thompson, 109 Mass. 288. The term is occasionally applied to lawyers, and then means generally any evil practice in a professional capacity, but rather with reference to the court and its practice and process than to the client. See In re Baum, 55 Hun. 611, 8 N. Y. Supp. 771; In re Silkman, 88 App. Div. 102, 84 N. Y. Supp. 1025; Cowley v. O'Connell, 174 Mass. 253, 54 N. E. 558.

See Mata PRAXIS.

8 Unskillful treatment by a physician or surgeon, in consequence of which the patient is injured more or less seriously, perhaps permanently. Spoken of as ignorant, negligent, or willful. Some authorities hold that the ofi^ense, however occasioned, is a misdemeanor: it implies a violation of confidence.* The patient may have a civil action for damages. The majority of the cases arise from amputations, 1 [Commonwealth v. Snelling, 15 Pick. 340 (1834), Shaw. C. J. 2 Rounds V. Delaware, &c. R. Co., 3 Hun, 383 (1874). See also 9 Mete. 106; 29 Tex. 266; 76 Va. 132. = Tuttle V. Bishop,.30 Conn. 85 (1861). « Jennan v. Stewart, 12 F. R. 868 (1882), Hammond, District Judge. ' Commonwealth v. Walden, 3 Cush. 559 (1849). See also 7 Ala. 728; 1 Minn. 292; 3 Terg. 878. « Commonwealth v. Brooks, 9 Gray, 303 (1857); Commonwealth V. Boynton, 110 Mass. 345 (1874). That a malicious act of itself gives no right of action, see 18 Cent. Law J. 424-28 (1884), cases. ' 1 Bl. Com. 46.5; 4 id. 2, 83; 2 Kent, 233. 9 L. mal praxis, bad or faulty practice. See Mal. fractures, and dislocations. The surgeon must know and apply what is settled in his profession, and bring to the performance "of an operation at least ordinary skill; and the patient must not directly contribute, to an extent that cannot be distinguished, to the results of the treatment he afterward complains of.' See Care; Maltreatment.