Sex is no excuse for negligence; there is no rule of law to the effect that less care is required of a woman than a man. A lady physician cannot as such claim any privilege of exemption from the care and caution required of men, any more than a woman acting as a locomotive engineer could be allowed to use less diligence to avoid mischief to others than men must use. Male and female are governed by the same rule in this respect: the rule of prudent regard for the rights of others knows nothing of sex [136]. Inasmuch as gratuitous services are more generally rendered by young and inexperienced physicians than by those who are well established in their business, a presumption naturally arises that one who renders such services is not possessed of great skill, and was not supposed to be by the patient. This presumption may be overcome by proof to the contrary; and the physician must be judged by the |62| standard to which he led the patient to believe he had attained; or, if he has done nothing to mislead his patient upon this point, his responsibility will be measured by the degree of skill which he is proved actually to possess [137]. It has been laid down in Maine, that physicians and surgeons who offer themselves to the public as practitioners impliedly promise thereby that they possess the requisite skill and knowledge to enable them to heal such cases as they undertake with reasonable success; and that this rule does not require the possession of the highest, or even the average skill, knowledge and experience, but only such as will enable them to treat the case understandingly and safely [138]. Considering how much the treatment of a case depends upon its varying phases, which change as quickly as the shifting hues of the heavens, it is hard for one medical man to come forward and condemn the treatment of a brother in the profession, and to say he would have done this or that, when probably, had he been in a position to judge of the case from the first, he would have done no better [139]. If a physician does not bring to the treatment of an injury or of a disease the ordinary amount of skill possessed by those in his profession, it is immaterial how high his standing may be; if he has skill and does not apply it he is guilty of negligence, and if he does not have it then he is liable for the want of it. When a case of alleged malpractice is before the court, the questions to be considered are: Did the defendant possess the ordinary skill of persons acting as medical men? If he did, was he chargeable in not applying it in the treatment of the patient? Whether |63| he possessed greater skill, or had been successful in the treatment of other patients, is wholly immaterial. Where the point in issue is whether skill was applied in a given case, the possession of skill without proof that it was applied will be no defence [140].