Graham v. Gautier
| Decision Date | 01 January 1858 |
| Citation | 21 Tex. 111 |
| Parties | WILLIAM J. GRAHAM v. WILLIAM J. GAUTIER. |
| Court | Texas Supreme Court |
The practice of blending the various branches of the profession, but also the fact that they are not legally created, as a class, make it consistent with principle to place physicians on the same footing with attorneys, factors, pilots, and other persons, undertaking to perform services which require skill, for reward.
The care, diligence and skill required, relate to the professional duties, and not to nursing and providing necessaries and comforts.
A physician is not only required to be skillful, or, even, to prescribe with skill, when he comes to see his patient; but his duty demands that he shall attend his patient with care and diligence, as well as skill.
The fact that a man is a physician of ordinary skill being proved, does not raise a legal presumption that the particular services in any one case were skillfully rendered by him. It is evidence of that fact; and, practically, it may often be the only attainable evidence of it. But there is no rule of law giving it artificial weight, as a legal presumption, or making it prima facie evidence.
A medical practitioner never insures the result, but simply engages that he possesses a reasonable degree of skill, such as is ordinarily possessed by a profession generally, and to exercise that skill with reasonable care and diligence; and again, to exercise his best judgment, but is not responsible for a mistake of judgment. That is, after he has, with reasonable care and diligence, exercised ordinary skill, he is not responsible for a mistake of judgment, or for the result if he should happen to be mistaken.
Such are the rules applicable to the ordinary, implied undertaking of a physician. They may be varied by special circumstances or agreements.
Where a plea in reconvention, in its very nature, negatives the plaintiff's cause of action; as if a physician sues for the value of his services, and the defendant pleads in reconvention, admitting the services as alleged, but alleging negligence and want of skill, from which defendant suffered damages, for which he prays judgment; the plaintiff has the right to open and conclude the case.
APPEAL from Brazoria. Tried below before the Hon. James H. Bell.
Suit by appellee against appellant for $187.57, for medical attendance to the slaves of the appellant. Answer admitting that the services were rendered as stated in the petition; and that the charges were the usual charges for such services; but alleging that by reason of the unskillful and negligent treatment of the plaintiff, said slaves, ten in number, of the value of $10,700, had died, wherefore defendant prayed judgment for said sum against said plaintiff. The testimony was very voluminous, and tended to different conclusions.
The court instructed the jury as follows: That if they believe from the evidence that the plaintiff rendered the services alleged in his petition, and that the plaintiff is a physician of ordinary skill in his profession, and that the service rendered to the slaves of the defendant by the plaintiff was reasonably worth the sums charged in his petition, the plaintiff is entitled to a verdict for the amount claimed in his petition.
A physician who undertakes to treat patients for a remuneration, must be a man of ordinary skill in his profession, and is responsible for a lack of ordinary skill in his treatment; but extraordinary skill is not required in a physician, nor can he be made responsible in damages for the loss of patients who might have been saved by extraordinary skill. When a physician seeks to recover compensation for his services, in a suit at law, and makes proof, in general terms, of his skill in his profession, he is not required to make any further proof of the skill of his treatment in the particular case; but if the defendant seeks to defeat a recovery, or to recover damages in reconvention, upon the grounds of unskillful treatment or malpractice, it devolves on him to make the proof of malpractice and of want of skill on the part of the physician.
It is no defense to an action by a physician, for his reasonable fees for professional services, that very great loss ensued to the defendant in consequence of the disease which the physician was called to treat. No matter how great may be the loss of property to a party who employs a physician, the physician is entitled to recover his reasonable fees, if he has performed professional services with ordinary skill.
On the other hand, although a physician may be proved to be of ordinary skill in his profession, he is not entitled to recover for professional services, unless he has employed ordinary skill in rendering the services which are the subjects matter of inquiry; but, as was before said, after proof in general terms of the physician's skill in his profession, it devolves upon the defendant in any particular case, to make proof of unskillfulness or malpractice on the part of the physician, in order to defeat a recovery of reasonable fees for his services.
If a physician undertakes to treat patients for compensation, and treats them with less than ordinary skill, he is liable in damages for such loss as may be occasioned by his unskillful treatment. In the case of the treatment of slaves by a physician, under an employment by the master, if the physician treats the slaves with less than ordinary skill, he is liable in damages to the master for such loss of property as is caused by such unskillful treatment of his slaves.
In making up a verdict for damages in a case of loss to a party by the unskillful treatment and malpractice of a physician, the jury should render their verdict for the amount of the actual loss which they believe, from the evidence, the party has sustained by such unskillful treatment and malpractice.
In a case like the present, it is the duty of the jury to divest their minds of all outside influences and impressions, and to look only to the facts as given in evidence, and to the law as laid down by the court, for their government. The effect of your verdict upon the standing of a professional man is not at all to be considered by you; nor ought your sympathy for a defendant, who has already sustained a heavy loss, to have one particle of influence upon your action as jurors.
The following instructions were asked by defendant, and refused by the court:
1st. If the jury believe from the evidence, that the plaintiff, as a practicing physician, undertook to perform the services mentioned in the petition, and if they also believe from the evidence, that he did not perform said services with proper skill and knowledge, so that the defendant derived some benefit from said services, the defendant is not liable.
2d. If they believe from the evidence, that the plaintiff was employed as a practicing physician, to attend upon the slaves of defendant during their illness, and that he undertook to attend them as such, and that the plaintiff during his attendance upon said slaves, did not perform his duty with diligence and skill, then the plaintiff is liable to the defendant for every injury that occurred to him, defendant, for the want of diligence and skill in the plaintiff.
3d. A physician is liable for the want of ordinary diligence, care and skill to the injured party; and he will be liable also for gross carelessness or unskillfulness, or for the want of ordinary judgment.
4th. If the jury believe from the evidence, that the plaintiff treated the slaves of defendant for a disease or diseases with which they were not affected, and did not treat them for the disease under which the said slaves were laboring, and if they also believe from the evidence, that a physician of ordinary care, skill and judgment would have distinguished the disease under which they were laboring, and treated them in a different manner, then the plaintiff would be liable in this action.
5th. If the jury believe from the evidence, that the said slaves were laboring under an attack of measles when the plaintiff was attending them, and he treated said slaves for an attack of cholera, or pneumonia, or typhoid pneumonia, and if they also believe that his said treatment was occasioned by the want of skill in the plaintiff, and that thereby the said slaves were lost to the defendant, then the plaintiff is liable in this action for the value of said slaves.
Verdict for plaintiff for $166.57; remittitur of $24.57, and judgment for the balance. Motion for new trial overruled, etc.
It appeared by bill of exceptions, that the defendant claimed the right to open and conclude the case, but that his claim was overruled by the court.
P. MacGreal, for appellant.
I. The plaintiff's cause of action being admitted, the defendant was entitled to open and close the case in support of his claim in reconvention; this was the only issue before the court.
II. The court erred in giving the 1st, 2d, 3d, 4th, 5th,...
To continue reading
Request your trial
-
Lucas v. U.S.
...resolved. It is apparent that our citizens have long enjoyed the right to sue for unlimited damages for medical negligence, Graham v. Gautier, 21 Tex. 111 (1858), and that the cap has not substituted or left in place a reasonable alternative remedy for the rights withdrawn. While some restr......
-
T.L. v. Cook Children's Med. Ctr.
...and agrees that he will exercise that skill with reasonable care, diligence, and judgment in treating the patient. Graham v. Gautier , 21 Tex. 111, 120 (1858) ; Helms v. Day , 215 S.W.2d 356, 358 (Tex. App.—Fort Worth 1948, writ dism'd).The common law required the physician, once engaged by......
-
Karp v. Cooley
...401 S.W.2d 306, 313. 20 See note (19) supra, as to Dr. Liotta. 21 Wilson v. Scott, Tex., 1967, 412 S.W.2d 299, 301-302; Graham v. Gautier, 1858, 21 Tex. 111, 119. See Perdue, The Law of Texas Medical Malpractice, 1973, 11 Hous. L.Rev. 1, 22 See Salgo v. Leland Stanford Univ. Bd. of Trustees......
-
Taylor v. Shuffield
...from some character of throat or mouth disease, the nature and deleterious effect of which only experts are competent to testify. Graham v. Gautier, 21 Tex. 111; Floyd v. Michie (Tex. Civ. App.) 11 S.W.(2d) 657; McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870; Houghton v. Dickson, 29 Cal. App......