A surgeon does not become an actual insurer [123]; the implied contract is not to cure, but to possess and employ in the treatment of the case such reasonable skill and diligence as are ordinarily exercised by thoroughly educated surgeons; and in judging of the degree of skill and attention required, regard is to be had to the time and place. The law implies that in the treatment of all cases which they undertake medical men will exercise reasonable and ordinary care and diligence; they are bound always to use their best skill and judgment in determining the nature of the malady and the best mode of treatment, and in all respects to do their best to secure a perfect restoration of their patients to health and soundness. But they do not impliedly warrant the recovery of their patients, and are not liable on account of any failure in that respect, unless it is through some default of their own [124]. Tindal, C.J., in summing up to the jury in an action for improper treatment to a hand and wrist, whereby the plaintiff lost the use of her hand, well said, “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 a surgeon, that he will perform a cure, nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill.” Wharton and Stillé thus state the law: “A physician and surgeon is only responsible for ordinary skill, etc., and for the exercise of his best judgment in matters of doubt. He is not accountable for a want of the highest degree of skill [125], nor for an erroneous, though honest conclusion, |59| according to his best light [126]. The law has no allowance for quackery. It demands qualification in the profession practised, not extraordinary skill such as belongs to few men of rare genius and endowment, but that degree which ordinarily characterizes the profession. And in determining whether the practitioner possesses ordinary skill, regard must be had to the advanced state of the profession at the time [127].