If a patient has not been deluded by any but himself, and voluntarily employs in one art a man who openly exercises another, his folly has no claim to indulgence. The old Mahomedan case, cited by Puffendorf with approbation, is very much to the point. A man who had a disorder in his eyes called on a farrier for a remedy. This worthy gave him a remedy commonly used by his quadrupedal patients. The man lost his sight, and brought an action against the farrier for damages; but the Judge said that no action would lie, for, if the complainant had not himself been an ass, he would never have employed a horse doctor. But when a case, the converse of this, came up, the Court remarked that, “stock and the human family are animals with many similitudes and some variances; so that, although it be admitted that one acquainted with the mode of treating diseases of the human family should not be relied on to select from the materia medica substances apt for the treatment of stock, still we think it clear that one having a scientific knowledge of the diseases of men must be presumed to have so much knowledge of the diseases of a mule as to enable him to determine whether a disease with which the animal is afflicted be of recent or long standing. An expert in the diseases of man is necessarily an expert in the diseases of animals, so as to make his opinion competent evidence upon a matter in reference to which he will swear that his scientific knowledge has enabled him to form an opinion.” And so a physician was allowed to give his opinion as to whether the disease with which a mule was afflicted was, or was not, of long standing, as he considered himself competent so to do from his knowledge |54| of the diseases to which human flesh is heir, although he knew nothing in particular about the diseases of stock [110]. As one who employs a homœopathic or botanic physician knowingly cannot object to his bill because he was not treated in the way usual among orthodox practitioners; so, on the other hand, if a physician of one school is employed by one who has a _penchant_ for that particular system, and treats his patient according to a different system, he cannot recover for his services if he fail to benefit the patient [111]. Proof that one practises physic is _prima facie_ evidence of his professional character; and if one holds himself out as a physician and surgeon, and acts as such, the law will hold him liable as such [112]. A physician who merely casually makes up a prescription for a friend when meeting him upon the street, cannot be called his medical attendant; that term means one to whose care a sick person has been confided [113]. |55| CHAPTER V. NEGLIGENCE AND MALPRACTICE. Malpractice, or _mala praxis_, may be defined to be an improper discharge of professional duties, either through want of skill or negligence. It is now more particularly applied to torts—when committed by a physician, surgeon, or apothecary.