care so long as it is needed.70 The physician further impliedly agrees to utilize generally accepted methods of diagnosis and treatment,”1 and to do so he must keep reasonably abreast of current medical practices and the existing state of medical knowledge.

71

(b) The Dentist's Legal Duties

73

The dentist's legal obligations correspond to those of the physician." As applied to dental practice, the applicable legal standard requires the dentist to possess and exercise that degree of skill and care which the reasonably prudent dentist in the same locale would possess and exercise under the same or similar circumstances. He, too, is not a guarantor of cure, and so long as he employs the degree of skill and diligence ordinarily exercised by his profession, a dentist will not be liable in damages merely because there is a bad result." Similarly, he will not be held liable for an error of judgment in making a diagnosis, unless he fails to exercise ordinary care and skill in arriving at such diagnosis.

74

The conduct of a dentist who is a general practitioner will be compared with that of other general practitioners; but when the dentist holds himself out as being a specialist, the law imposes on him the legal responsibility to conform to the standard of care of the specialist." As is the case with physicians, a dentist who is a general practitioner has a legal obligation to refer the patient to a specialist when, in a similar situation, a reasonably prudent general practitioner would make such a referral.76 Once dental treatment

70 Capps v. Valk, 189 Kans. 287, 369 P. 2d 238 (1962); 70 C.J.S. PHYSICIANS AND SURGEONS, § 39.

Board of Medical Registration v. Kaadt, 225 Ind. 625, 76 N.E. 2d 669 (1948); 41 AM. JUR., PHYICIANS AND SURGEONS, § 86.

72 See generally Sarner, H.: “The Legal Responsibility of the Dentist,” J. Amer. Dent. Ass., 70: 46 (January 1965); Annotations, 41 A.L.R. 2d 385; 83 A.L.R. 2d 23.

73

Shoumatoff v. Wiltbank, 226 N.Y.S. 2d 576 (1962); Newport v. Hyde, 244 Miss. 870, 147 So. 2d 113 (1962).

74 Huffman v. Lindquist, 37 Cal. 2d 465, 234 P. 2d 34, 29 A.L.R. 2d 485 (1951).

75

'Sarner, H.: “The Oral Surgeon and His Professional Liability," J. Oral Surg., Anesth., and Hosp. D. Serv., 21: 365 (September 1963).

76

Simone v. Sabo, 231 P. 2d 19 (Calif., 1951). The act of making a referral to a specialist will not absolve a general practitioner of liability for erroneous information or instructions given by him on the referral card. Sarner, op. cit. note 72, at 48.

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has been commenced, the dentist has a legal duty not to abandon his patient, and must give such follow-up treatment as the necessity of the case demands."

The problems discussed elsewhere with respect to the necessity for obtaining the patient's informed consent apply with equal force to dental practice, and the cases make it clear that, in the absence of an emergency, the dentist must perform only such services as the patient authorizes him to do." The foregoing represent the basic legal responsibilities applicable to dentists in civilian practice as well as those in Government practice.

(c) The Nurse's Legal Duties

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A registered nurse has had the benefit of special education and training, and in carrying out her professional duties she is expected to exercise that degree of care which a reasonably prudent nurse practicing in the same community would exercise under the same or similar circumstances." The general rule applicable to nurses is that the nurse must execute the orders of the physician diligently, unless the order is such as to lead a reasonable member of the nursing profession to anticipate that harm to the patient would probably result from its execution.80 The physician may be independently negligent if he fails to prevent a nurse's observed negligent conduct.81

"Specht v. Gaines, 65 Ga. App. 782, 16 S.E. 2d 507 (1941); Grace v. Myers, 224 N.C. 165, 29 S.E. 2d 553 (1944).

18 Francis v Brooks, 159 N.E. 609 (Ohio, 1925).

79 Ybarra v. Spangard, 25 Cal. 2d 486, 154 P. 2d 687 (1944); Larrimore v. Homoeopathic Hosp. Ass'n., 176 A. 2d 362 (Del., 1961); aff'd 181 A. 2d 573 (1962); Whaley v. Fowler, 152 Cal. App. 2d 379, 313 P. 2d 97 (1957); Creighton, H.: "The Liability of the Surgical Nurse," Hosp. Mgmt., 99: 46 (January 1965). See also Annotation 51 A.L.R. 2d 970 (1955).

80

See, for example, Norton v. Argonaut Insurance Co., 144 So. 2d 249 (La. App., 1962) holding a nurse liable for negligence in administering a fatal dose of the drug lanoxin to a 3-month-old baby. The court said, "We are of the opinion that she (the nurse) was negligent in attempting to administer a drug with which she was not familiar * * *. Not only was she unfamiliar with the drug in question, but she also violated what has been shown to be the rule generally practiced by members of the nursing profession in the community and which rule, we might add, strikes us as being most reasonable and prudent; namely, the practice of calling the prescribing physician when in doubt about an order for medication."

81

Letourneau, C.: "The Liability of Physicians for Negligent Acts of Others," Hosp. Mgmt., 98: 54 (December 1964).

82

The courts have also held that anyone who acts as a nurse, by performing the duties customarily performed by registered nurses, is subject to the responsibilities and duties of a registered nurse. This would apply to a student nurse's conduct even though she has not yet reached the level of proficiency of the registered nurse. The legal rationale for this position appears justifiable, since a patient treated in either a private or governmental hospital has a right to assume that all professional services furnished, including nursing care, will be undertaken by persons who have the requisite degree of skill, education, and training.

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(d) The Pharmacist's Legal Duties

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Pharmacy practice is another area of professional skill and competence in which the law imposes special legal requirements upon the individual with specialized education and training. The duty of the pharmacist is only to exercise ordinary care, but the phrase "ordinary care" as applied to pharmacy practice requires the exercise of the highest practicable degree of prudence, thoughtfulness, and vigilance. Many drugs are within the category of inherently dangerous articles, and the pharmacist who, in dispensing such drugs, does not exercise care commensurate with the danger involved, will be held liable for all the foreseeable consequences of his neglect.86

85

82 Nickley v. Skemp, 206 Wis. 265, 239 N.W. 426 (1931). The cited case and its implications for student nurses are discussed in Hershey, N.: “Student, Instructor and Liability," Amer J. Nurs. 65: 122 (March 1965).

83 Christensen v. Des Moines Still College, 82 N.W. 2d 741 (Iowa, 1957).

84 See generally, Archambault, G. F.: "The Law of Hospital Pharmacy," Amer. J. Hosp. Pharm. (July 1958 and September 1961); Barker, K. N.: “On the Administration of Drugs by Pharmacists," Hospitals (Apr. 16, 1964).

85

See Kruger v. Knutson, 261 Minn. 144, 111 N.W. 2d 526 (1961), for an excellent statement of the pharmacist's duty with respect to the sale or dispensing of dangerous drugs in general. See also Archambault, G. F.: "The Legal Responsibility of the Hospital Pharmacist in the United States," Amer J. Hosp. Pharm. (March 1959); Annotation, 79 A.L.R. 2d 317 (1960).

86 Sandel v. State, 115 S.C. 168, 104 S.E. 567 (1920). The use of investigational drugs places additional responsibilities on pharmacists, physicians, and nurses. In PHS facilities the manner in which investigational drugs may be used is carefully circumscribed by the procedures outlined in the Division of Hospitals Operations Manual (Part C4-1.5) and the Division of Indian Health Manual (Part 3-7.8). For general information, see Sessoms, S.: "Investigational Drugs: Guiding Principles in Medical Research Involving Humans," Hospitals 32: 44 (Jan. 1, 1958); Schreiner, G. E.: "Liability: Use of Investigational Drugs," Food, Drug and Cosmetic L.J. 18: 403 (July 1963).

(e) Professional Conduct Creating Liability

The general standards of professional conduct applicable to patient care have been outlined above. When there is a departure from one or more of these standards, with resultant harm to the patient, the negligent conduct of the professional medical employee will give rise to liability for damages. As mentioned in Part A.1, the fundamental standards of liability for medical negligence do not differentiate between private and governmental medical care, so that the liability of the PHS physician, dentist, nurse, pharmacist, etc. (or the Government, as his employer), will be determined by reference to the law of the State in which the alleged negligent conduct took place.

By way of illustration only, there are indicated below some of the types of negligent conduct for which physicians and other professional medical employees have been held liable:

Failure to utilize X-ray studies, blood tests, biopsy, or other indicated tests in making a diagnosis;

Failure to use an indicated prophylactic measure, such as tetanus antitoxin;

Failure to properly match blood;

Failure to give proper instructions when prescribing drugs;

Failure to sterilize surgical instruments;

Failure to test for hypersensitivity to a drug;

Failure to keep medical equipment in working order;

Failure to have cardiac-arrest resuscitative equipment available during major surgery;

Failure to remove foreign objects from the patient's body during

surgery;

Failure to give continued care (i.e., abandonment of the patient);

Failure to warn the patient of the risks of hazardous therapy or surgical procedures, or to obtain his informed consent thereto;

Failure to keep complete and accurate medical records;

Failure to properly supervise mental patients;

Failure to record negative findings (e.g., normal pulse, respiration and blood pressure);

Failure to take a complete medical history.

(f) Professional Conduct Held Not Negligent

The law has taken proper note of the fact that medicine is not an exact science, and in the decided cases the courts have held physicians

87

not liable under a variety of circumstances, some of which are outlined below. In malpractice litigation, as in the field of negligence law generally, the defendant's negligence is never presumed, and must always be proved (except where the doctrine of res ipsa loquitur intervenes to shift the burden of proof to the defendant. See Part B.2(g) following). The fact of injury alone will not give rise to liability, and the plaintiff must always show a causal relationship between the alleged harm suffered and the breach of some affirmative legal obligation on the part of the physician. Thus, simply because a patient does not get well, or some complication or unexpected result occurs, does not establish that the physician was negligent. He is not a guarantor of success, and the law requires merely that he exercise his best skill and judgment in making his diagnosis and carrying out his selected course of treatment.

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Several of the legal principles enunciated by the courts which have a bearing on the non-liability of physicians for allegedly negligent conduct are noted below:

88

A physician will not be held liable for an error in diagnosis providing he complied with the accepted medical standards in making his diagnosis.

A physician will not be held liable for failure to diagnose an ailment of admittedly obscure etiology.

The choice of a less familiar mode of treatment is not in itself evidence of negligence if a respectable minority of physicians in the same locality would have employed similar procedures under the circumstances.

The mere fact of resulting injury or unexpected complications from a medical or surgical procedure cannot form the basis of a presumption of negligence, and the plaintiff must always adduce medical testimony to show a departure from the established standard of care.

The inadvertent cutting of normal tissue in a surgical procedure will not give rise to the surgeon's liability if it appears that the cutting resulted from an anatomical distortion in the patient's body.

87 Worster v. Caylor, 231 Ind. 625, 110 N.E. 2d 337 (1953). The physician is presumed to be free from liability until the contrary is proved by clear and convincing evidence. Silvers v. Wesson, 122 Cal. App. 2d 902, 266 P. 2d 169 (1954). In legal terminology, the plaintiff has the burden of proving that the alleged wrongful act or omission on the part of the defendant physician was the "proximate cause" of the injury or harm complained of.