The Skill of the doctor

Doctors were not liable simply because a patient got worse or died as a result of treatment. It was necessary to show that there was some fault. Although the test was set very early that a doctor had to show reasonable care, in practice judges would not find that the treatment was blameworthy unless it was clearly in breach of accepted professional standards.

Early in the nineteenth century, the skill expected of the doctor was expressed as ‘ordinary skill’ in his profession. As Chief Justice Tindal put it:

“Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. “(Lanphier v. Phipos (1838))

As a result, “a medical man was certainly not answerable merely because some other practitioner might possibly have shown greater skill and knowledge” (Erle CJ in Rich v. Pierpont 1862) The conduct had to fall clearly below what could ordinarily be expected of a doctor. As the French court put it, not following what anyone in the profession would know (CA Besançon, 18 Dec. 1844).

In French, German and Spanish laws, the criminal law was often used to punish the unskilled doctor. In Germany, the doctor had been punished by the criminal law since 1532 for killing a patient through lack of effort and skill (a Kunstfehler). [LINK]