It is not my intent to discuss extensively this subject but rather to call attention to some of the more interesting and important points in connection therewith.

Just what constitutes malpractice is difficult to include in a definition, as the duties of the physician to the community in which he lives differ according to the character of the community, also as to his own pretensions and abilities, as it goes without saying that the community of a larger city, where wealth is plentiful is more attractive to physicians of extra ability than the backwoods where poverty is ever present. The cornmunity of wealth expects and demands that its medical and surgical force shall be of the best that money can buy, while the sparsely settled communities are satisfied with what they can get. Then, too, the large communities afford advantages of observation and experience whereby the physicians of such communities are constantly and continuously improving both in knowledge and technic.

It generally follows, then, that those engaged in the practice of medicine or surgery in cities are as a rule better qualified to practice, hence they are in duty bound to use a higher degree of knowledge than their country brethren. Thus in the nature of things the obligation of the physician to his patient is not the same for all physicians nor to all patients.

The physician or surgeon must possess that reasonable degree of learning, skill and

This is a revision of a paper read before the 28th Annual Session of the Arizona State Medical Association, June 2, 1919, by Win Wylie, M.D., LL.B., F. A. C. S., Phoenix, Ariz.

experience which ordinarily is possessed by others of his profession, and he must exercise reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge, and exert ordinary judgment as to the treatment of the case intrusted to him. In short, a physician or surgeon is bound to bestow such reasonable and ordinary care, skill and diligence as physicians and surgeons in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. It is not necessary that he use the utmost degree of care and skill. The Supreme Court of Iowa has held that an instruction to the jury which holds a physician up to the standard of a thoroughly educated or well educated physician is erroneous.3 And the Kentucky Supreme Court holds that a physician need not use his best skill and ability, for no one can be at his best, and his conduct should be subjected to a test by a reasonable external standard. That is, he must have and use as much education as the average physician and surgeon, of similar locations and he must exercise that degree of diligence that is ordinarily used by such physicians.

3

6

age skill of general practitioners."5 It is immaterial whether, in fact, he is a specialist in his line or not, if he holds himself out as such, he must bring to his patients that degree of skill which a specialist assumes to possess. One who does not pretend to be a physician, yet treats the sick merely as an act of kindness and without expectation of reward incurs no liability, although his treatment of the case is improper.

When a physician or, surgeon is being tried on a complaint of malpractice, he has a right to have his diagnosis and treatment tested by the rules and usages of the school to which he belongs. That is, a physician claiming to practice regular medicine could not have his treatment judged upon evidence given by a physician practicing homeopathy, or any other pathy or science. Nor could the treatment of a Christian Science practitioner be judged by evidence of proper treatment as recognized by regular medicine or any other school of medicine. A Christian Scientist in practicing the art of healing should exercise only that degree of care and skill possessed and exercised by the ordinary Christian Scientist in practicing the art of healing. In the case of Spead v. Tomlinson' it appeared that the defendant treated the plaintiff according to Christian Science methods for the disease of appendicitis. The treatment did not benefit the disease. The plaintiff then called in a surgeon and was operated on, but the delay had caused damage for which this action was brought. The Court said:

"It has long been recognized as the law of this state that 'a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by the professors of the same art or science,

and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business." *** The plaintiff knew that she was not to be treated according to the methods of the regular school. Had she been an infant, non compos, or had never assented to Christian Science treatment, then the question whether the practice of Christian Science, as applied to the treatment for appendicitis, is so contrary to common sense and reason that it would be negligent for such a practitioner to undertake to treat the disease, might be open to consideration by a jury. But being a person of mature years, and having sought such treatment, she cannot now complain that the method itself expected was that the defendant would was improper. What the parties mutually treat the plaintiff according to Christian Science methods, and it necessarily follows that the defendant in the treatment of the plaintiff, is to be judged by the standard of care, skill and knowledge of the ordinary Christian Scientist, in so far as he confined himself to those methods."

The foregoing discloses that the Christian Scientist is in a class by himself. All other schools of medicine, surgery or

osteopathy have some things in common. as for instance the anatomy and physiol ogy of the human body. It would seem that the Christian Scientist would be in the same class as the clairvoyant, magnetic healer, mental scientist, etc., but such is not the case, for in the case of all of these different practitioner's errors resulting in injury, the practitioner is held for the damage suffered, the courts holding that it is against public policy to do otherwise. 10

It is not enough that the medical man shall be a graduate of a regular and recognized medical school in good standing. nor that in practice he use those methods. which were taught in that school, for the treatment is measured with the knowledge and treatment of the present day and not that which may have existed in the past. On the other hand, the phy

11

(10) 180 Mo. 322. (11)

63 Conn. 167.

sician or surgeon must not get ahead of the profession; he must conform to the mode of treatment established by his school of medicine and if he does other wise, he will be held for whatever dam age results.12 New methods may be used if they are approved,13 but experiments must not be tried on patients and if they are the financial risk is assumed by the physician and not by the patient."

A surgeon may be responsible even where he has exercised every care and the greatest of skill; for instance, where he assumes the responsibility of removing organs or parts of the body of his patient without the consent of the patient or someone authorized to give such consent; such act is a technical battery.15 There are numerous cases of this kind. For instance, the case of Mohr v. Williams, where a patient consented to an operation on her right ear, but during the operation and while the patient was anaesthetized, it was found that she had still worse trouble with her left ear, which was then operated. It was held that a trespass had been committed and the patient was entitled to remuneration for whatever damage she suffered.1 And in an Oklahoma case the surgeon operated upon a foot, promising not to remove any bone, but found the bone so diseased that it required removal. He removed a portion. This was a trespass for which the surgeon was liable.18

There is an exceedingly interesting and important question as to how far the physician and surgeon is responsible for the negligence of the nurse. It can be stated in a very few words. Where the act done or left undone is one which the surgeon should have done himself or made sure it

was done by another, he is financially responsible. On the other hand, if the act performed or left unperformed was something which it was the duty of the nurse to do, or was the duty of the hospital or other institution to see that it was done, the physician would not be liable. Perhaps the most frequent negligence wherein the surgeon is liable for the act of the nurse is the leaving of a sponge or instrument in the abdomen, and it is immaterial whether the nurse is his employe or not. It is immaterial whether it be the result of failure to count correctly or jumping at the conclusion that all are removed without counting. The duty to remove instruments and sponges from the wound of an operated patient is peculiarly a duty which the surgeon owes to his patient, and he is legally held where he delegates this duty to another and it is not properly performed.19 It is immaterial that other surgeons testify that it is a common accident.20

closure suit of myself as treasurer of Prairie County v. Joe Skarda et al.

"(Signed) Geo. Craig."

Appellant defends on the ground of a want of consideration, and that the duebill was procured by duress. The facts are as follows:

The appellant, Geo. Craig, was the treasurer of Prairie County, Ark.,. and had on deposit the sum of $12,256.99, belonging to the county, in the Bluff City Bank at De Valls Bluff, Ark., at the time said bank failed in March, 1913, and was placed in the hands of a receiver. J. G. Thweatt was attorney for the receiver and also for some of the officers of the bank. The president, the cashier, and one of the directors executed a mortgage on their individual property to secure the indebtedness due by the bank to the county. The mortgage was drawn up by J. G. Thweatt, and Craig was informed of its execution, and that it had been duly filed for record.

According to the testimony of Craig, when the mortgage became due he asked that it be foreclosed on the power of sale contained in the mortgage. Mr. Thweatt advised that there should be a foreclosure in the chancery court. Craig objected on the ground that it would cost him something. Thweatt told him that it would not cost him anything, and Craig then directed Thweatt to go ahead and institute the foreclosure proceedings. In the latter part of November, 1916, after the mortgage had been foreclosed and the court was about to wind the matter up, Thweatt asked Craig to pay him $250 as an attorney's fee in the foreclosure proceedings. Craig objected, Thweatt then told Craig that the bank could not pay his fee, and that he expected Craig to pay it. Craig told Thweatt that this was not according to their agreement, and that he did not think that Thweatt was treating him fair. Thweatt told him that he could block the settlement and that he would do so if his fee was not paid. Thweatt told Craig that if he would give him a duebill he would go ahead with the settlement. Under these circumstances Craig executed the duebill sued on, because he knew that Thweatt might block the settlement. At the conclusion of the testimony the court directed a verdict in favor of the appellees, and the case is here on appeal.

HART, J. (after stating the facts as above). The court was right in directing a verdict in favor of appellees. Appellant gave the duebill to appellees in compromise of a claim asserted against him. His act in executing the due-bill may have been ill-advised, but it was not duress. It is true that duress is a species

of fraud; but the mere fact that Thweatt threatened to break up the settlement unless Craig paid him his attorney's fee, which he was claiming in the foreclosure proceedings, or signed a duebill therefor, will not avoid liability on the duebill which was executed as a compromise agreement. The payment was not compulsory. The parties were on equal terms. Craig had his choice. He could either sign the duebill for the attorney's fee claimed by Thweatt, or he could have carried the matter before the chancery court in the foreclosure proceedings and have settled the matter then. Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 Am. St. Rep. 26, and Odell & Kleiner v. Heinrich, 221 S. W. 865, and cases cited.

The principles of law governing cases of this character were well stated by Chief Justice Cockrill in Vick v. Shinn, supra, as follows:

"If there is in fact a cause of action when the threat is made, the plaintiff, by bringing suit, would only enforce a legal right, if there was no cause of action or a demand for more than is due, the party threatened should exercise the ordinary degree of firmness which the law presumes every man to possess, and meet the issue of the unjust suit. One cannot be heard to say that he had the law with him, but feared to meet his adversary in court. It is only when he has no chance to be heard that he can pay under protest and afterwards recover."

It follows that the judgment will be af firmed.

NOTE-Coercion Invalidating Contractual Con sent. The instant case seems to me to proceed wholly on a wrong theory, that is to say, it as sumes there can be no duress except it be that immediately resulting in an unawful exaction, as say duress of goods, or by threat to this effect, or duress under color of office. But there may be influence which imposes itself upon the will so as to impair the free right of contract. This may more properly be called coercion. This is restraint of the mind having effect upon the will.

Thus it has been ruled that a general scheme on the part of members of a labor union to compel members of another union to desert it. by making them believe they would have trouble is an unlawful scheme that may be enjoined. Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330.

And it has been said that: "Coercion is either physical force, used to compel a person to act against his will, or implied legal force, where one is so under subjection of another that he is constrained to do what his free will would refuse." State ex rel v. Daniels, 118 Minn. 155. 136 N. W. 584. Arguendo the court says: "Theoretically, the employer and employe are on equality, so that one is free to employ, the other to accept the employment, as he sees fit; but in practice it is to the employe very often a matter of compulsion, and not of free choice."

"Where one person can dictate, and the other has no alternative but to submit, it is coercion." Atkinson v. Denby, 7 H. & N. 934.

But coercion to affect the exercise of an absolute right, that is to say, to restrain the exercise thereof, must not be merely incidental-it must have a direct purpose to an end. Booth v. Burgess, 72 N. J. Eq. 181, 65 Atl. 226.

"Putting one in actual fear of loss of his property or injury to his business, unless he submits to demands made upon him, is often no less potent in coercing him than fear of violence to his person. Purvis v. Local No. 500, etc., 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757.

And it is recognized that special situations carry presumptions of illegality when action is taken by those who occupy positions of trust and confidence and where the dependent or beneficiary is not held to deal at arm's length with another party. This is exemplified in the relation of guardian and ward, administrator and heir, husAnd band and wife, attorney and client, etc. after all it is a question of fact, if not of law, whether in any relation there has been any constraint by one party to a contract, whereby freedom of contract is seriously impaired. In the instant case there appeared one of the relations above spoken of-attorney and client. And I greatly doubt whether the attorney had the legal, and I know he did not have the ethical, right, to exact what he did exact from his client.

ITEMS OF PROFESSIONAL

INTEREST.

C.

Partnership; Relation to Other Lawyers— Rate cutting in competition with former partner as an inducement to the securing of employment from former client of firm; Disapproved. A and B, lawyers, were co-partners. The partnership was dissolved by consent.

(a) Is it ethical, or consistent with professional dignity, for A to attempt to secure professional employment from a former client of the co-partnership who had been originally introduced to the co-partnership by B, and whose affairs had always been in the personal charge of B while the partnership continued— by offering to serve for fees much smaller than the reasonable and substantially uniform fees that had been charged to that client by the copartnership for the same kind of services?

(b) Would it make any difference if the instance cited were but one of a number, thus indicating a general policy on A's part to se

cure, by means of "rate-cutting," employment by those clients of the former firm who, but for such "rate-cutting," would probably prefer to employ B?

ANSWER No. 189.

Canon 7 of the Canons of Ethics of the American Bar Association provides, among other things, as follows:

"Efforts, direct or indirect, in any way to encroach upon the business of another lawyer, are unworthy of those who should be brethren at the Bar" ***. In the opinion of the Committee the principle stated is a correct one, and the circumstances suggested in the question make it applicable; and, consequently, make the practice reprehensible.

QUESTION No. 190.

Husband and Wife; Confidential Communications; Relation to Client-Disclosure by lawyer to husband of testamentary intentions of his wife respecting property standing in her name derived from the joint labors of the spouses, both of them being his clients, and he having been consulted professionally by the wife respecting her will; Course indicated.Can a lawyer, who has been counsel for both husband and wife, with professional propriety warn the husband that the wife has requested him to draw her will so as to dispose of property in her name, but consisting of the fruits of the joint labors of husband and wife, in such manner that the husband shall have only a life estate after her death, with remainder to her descendants by a former marriage, with the deliberate design to prevent any part of it from inuring after his death to the benefit of the husband's relatives?

Or, can the lawyer, with knowledge so obtained of the wife's purpose, with professional propriety make a suggestion to the husband of the possibility of such a course, though not disclosing the fact that he has been consulted by the wife to that end?

The lawyer with knowledge of the circumstances having remonstrated with the wife, is unable to dissuade her from her purpose.

ANSWER No. 190.

There are few exceptions to the rule that a lawyer must keep secret confidential communications from a client. In the opinion of the Committee, the facts set forth in the question do not come within any of the recognized exceptions, and, therefore, the lawyer cannot properly inform the husband of the fact; nor should he voluntarily make a suggestion to the husband of a possibility based upon his knowledge of a fact so obtained, but the lawyer, with