ful, competent physician should have little trouble in determining the fraud, although the advantages are often on the side of the malingerer.

Where one is suspected of malingering, several examinations and continued observations should be made, at different times and hours; and, if possible, without previous warning to the patient. If taken off his guard, the impostor can, of course, be readily exposed; and unless he is very skilled, he is likely to overdo his part, and will seldom get the various stages of his alleged disease in the proper sequence. The examiner's opinion must be based, as a rule, upon a comparison of the injury or accident with the resulting malady claimed, rather than upon any positive knowledge that the patient is shamming; that is, he will have to determine and largely base his report upon: (1) whether or not the injury might reasonably produce the conditions claimed; (2) whether or not the objective symptoms correspond to the conditions claimed; (3) whether or not the subjective symptoms-pain or disability-correspond to the conditions claimed; (4) whether or not the objective and subjective symptoms correspond; (5) whether or not the conditions claimed and the subjective symptoms are well defined, regular, and localized.

By subjective symptoms are meant those existing within the feelings and sensibilities of the patient; such as pain, aches, impaired vision or hearing, or inability to control muscles. By objective symptoms are meant those outside the feelings of the patient, which will be readily observed by the trained eye; such as bruises, wounds, or the change in color and

appearance of the female breasts due to pregnancy. It is thus readily seen that many objective symptoms -bruises, fractures, or the like-will be closely related to such subjective symptoms as aches or pains. This relationship is well understood, and forms an important part in the physician's diagnosis of the patient's malady.

8. Presumption of survivorship.-Not infrequently, when members of the same family perish in the same calamity, it becomes necessary to determine which died first, in order to determine the further question of inheritance. If there is no positive evidence as to which one was last alive, in some jurisdictions the law presumes that the physically stronger survived the weaker; as, that an adult man will survive an adult woman of about the same age, that an adult will survive a child, and that one of middle age or youth will survive an elderly or aged person. But in many states the law indulges no presumption in the matter, leaving the question to be determined from such evidence as may be produced, if any.

CHAPTER II.

MALPRACTICE.

9. Malpractice.-Malpractice may be defined as bad, or unskillful practice on the part of the physician or surgeon. It is usually classified as willful, negligent, and ignorant; and also as civil and criminal, although some states make no provision by statute for criminal malpractice, as such, only punishing it as incidental to some larger offense, as the procuring of an abortion.

Civil malpractice gives rise to a right of action by the patient against the physician for carelessness in the performance of his duties in treating the patient's malady. The gist of the action is negligence even though the bad practice is due to ignorance on the part of the physician. The obligation of one who holds himself out as a physician or surgeon is that he will exercise in his employment the average degree of care, skill and diligence exercised by members of the same profession and of the same school of medicine, practicing in the same or a similar locality, in the light of the then state of medical and surgical science; and that he will indemnify the patient against any injurious consequences which may result from his failure to use such average degree of care, skill and diligence. And if one holds himself out as a specialist, he will be held to the average degree of care, skill and diligence of like specialists in the same

or a similar community. Thus, a general practitioner in a populous community, who undertakes to perform a surgical operation, will be held to the average degree of care, skill and diligence of surgeons in that or a similar community; and though he use his best skill and knowledge, yet if he fall below the average of surgeons, he will be liable for injurious results. But one in a sparsely settled district, a long distance from centers of population, who uses his best care and skill in a necessary surgical operation, will not be made to respond in damages, even though he fall below the average degree of care and skill of the city

surgeon.

While a medical man is held responsible for injuries resulting from his negligence, ignorance, or willfulness, yet for honest error of judgment he will not be liable. But it must be really a mistake of judgment, about a matter which is more or less unsettled by his school of medicine. If he discards the settled practice or remedies of his school of medicine, and employs those of another school, he will be held liable for injurious results.

The fact that the services are rendered gratuitously has no bearing upon the matter. In no way does the fact that the patient is unable or unwilling to pay, diminish the physician's obligation as to care, skill, and diligence.

The physician has done his duty and fulfilled his obligation to the patient when he uses the care and skill above mentioned; but he does not guarantee a cure, unless, of course, he has expressly contracted to effect a cure. In such a case, he will be liable for

damages for breach of contract if he does not bring about the cure contracted for, although he may have used the full degree of care, skill and diligence which the law demands of him in the absence of any contract.

If the patient neglects or refuses to follow the physician's prescribed treatment, and it can be shown that such neglect or refusal by the patient has at all contributed to his injured condition, the physician's liability for damages, whether the action is in tort or in contract, is mitigated pro tanto (for so much) in some jurisdictions, and in many states he is entirely relieved by reason of such contributory negligence by the patient.

What has been said applies to women practitioners as well as to men; and the same general rules concerning malpractice apply to dentists as well as to physicians and surgeons.