It is a great misdemeanor and offence at common law, whether it arise from curiosity and experiment, or from neglect; because it breaks the trust which the party has placed in the physician, tending directly to his destruction [114]. A medical man who is guilty of gross negligence, or evinces a gross ignorance of his profession, is criminally responsible for the consequences. And one who, by a culpable want of care and attention, or by the absence of a competent degree of skill and knowledge, causes injury to a patient, is liable to a civil action for damages; unless, indeed, such injury be the immediate result of intervening negligence on the part of the patient himself; or unless such patient has by his own carelessness directly conduced to such injury [115]. It is sometimes difficult to distinguish between civil and criminal malpractice, or to say when one is criminally, and when only civilly responsible. But it may be said generally, that to constitute criminal liability there must be such a |56| degree of complete negligence in the practice as the law means by the word felonious [116]. There may be malpractice by commission, _i. e._, from the want of ordinary skill in the discharge of professional duties; or malpractice by omission, _i. e._, from negligence in the discharge of such duties. The question, “Was there negligence?” will be answered from the stand point of the law, not from that of medicine, when a matter comes to be judicially investigated. The law as applicable to other professions and occupations will be applied to the medical or surgical case under consideration. Strictly speaking, the term _negligence_ is limited in its application to carelessness in the performance of professional duty; _carelessness_ is its proper synonyme. Duties performed without care, caution, attention, diligence, skill, prudence, or judgment, are negligently performed. Acts are so designated which are performed by one heedlessly, even when there is no purpose to omit the performance of duty. It is _non-feasance_, not malfeasance. It is the omitting to do, and not the ill-doing—it is the leaving undone what one ought to have done—not the doing what one ought not to have done—this last being a want of skill. In its various degrees it ranges between simple accident and actual fraud, the latter beginning where negligence ends [117].