
    NICHOLAS L. DASHIELL vs. GEORGE R. GRIFFITH and CAROLINE GRIFFITH.
    
      Expert Evidence—Liability of Physicians and Surgeons for Negligence in the Treatment of Patients—Office Patients—Action by Husband and Wife for Injury to Wife—-Appeal.
    
    The ruling of the trial Court upon the competency of a witness to testify as an expert is subject to review on appeal.
    In an action against a physician for alleged negligence in the treatment of a bone-felon on plaintiff’s finger, a woman who nursed the plaintiff, and whose only qualification, to speak as an expert, was that she had nursed some twenty cases of bone-felons, is not competent to testify as to the depth of the incision made by the defendant in lancing the finger of the plaintiff from mere observation by the witness of the surface appearance of the finger afterwards.
    A physician or surgeon is bound to exercise in the treatment of his patients such degree of care and skill as is ordinarily exercised by others in his profession.
    The relation of physician and patient generally continues so long as medical attention is required, and the physician must exercise reasonable care in determining when the attendance may be safely discontinued.
    But when the patient comes to the office of the physician, from whom he receives proper treatment, and then fails to return for further treatment, in consequence of which he suffers injury, he is not entitled to maintain an action against the physician for such injury.
    An action was brought by husband and wife jointly against a physician» the declaration alleging negligence in the treatment of a bone-felon on the wife’s finger, in consequence of which amputation of the finger became necessary, whereby she was injured “to the damage of the plaintiffs.” The wife came to defendant’s office on February 17, 18, 19, 20 and 22, and her finger was lanced by the defendant on Feb. 17. On account of the illness and death of defendant’s father, he did not see the plaintiff after February 22, but she was told to go to another physician, who was in charge of defendant’s practice. Plaintiff did not go to this physician, and her finger was amputated on March 2. Held,
    
    1 st. That if defendant exercised reasonable skill in the treatment of plaintiff'’ s finger on the days named and requested her to go to the physician in charge of his practice for further treatment, which plaintiff refused to do, then the defendant is not liable for any injury resulting from subsequent neglect to be treated.
    2nd. That under the pleadings, the plaintiffs cannot recover damages for the failure of the defendant to be present in his office after Febru^ ary 22 for the rendition of services to the wife, because, even if defendant was bound to be present, his failure to perform this duty was a breach of contract, which cannot be sued for by husband and wife jointly, and because the declaration in this case was founded upon 1 the allegation of actual negligence.
    Appeal from the Baltimore City Court. At the trial the plaintiff offered the following prayers :
    
      Plaintiff's 1st Prayer.—If the jury find from the evidence that the defendant was a physician and surgeon, and, as such, undertook to treat the plaintiff, Caroline Griffith, for a disease of her finger, and entered upon said treatment; that said finger was subsequently amputated, and that said amputation was rendered necessary by the want of such reasonable skill, care and diligence in the treatment of said finger and of the said plaintiff, as is usually exercised by physicians and surgeons in good standing in the defendant’s school of practice in this locality, then their verdict must be for the plaintiff. (Granted in connection with defendant’s prayers).
    
      Plaintiff's 2nd Prayer.—If the jury find from the evidence that the defendant undertook the treatment of the plaintiff, Caroline Griffith, and that she came to his office for said treatment whenever directed to do so by him, then it was the duty of the defendant to continue said treatment so long as the Case required medical attention, or else to give notice of his intention to discontinue the same; and if the jury find that the defendant failed to perform said duty and that injury resulted to the plaintiff from said failure, then their verdict must be for the plaintiff, and in considering whether or not the plaintiff’s finger required medical attention, the criterion by which to judge is whether or not said finger would have required said attention in the judgment of a reasonably skillful, careful and diligent physician. (Refused).
    
      
      Plaintiff’s 3rd Prayer.—If the jury find that the defendant was guilty of negligence and want of such care in the treatment of the plaintiff as would be exercised by a reasonably skillful and prudent physician, and that said negligence and want of care resulted in injury to the plaintiff, then they must find for the plaintiff, even though they should further find that the plaintiff subsequently failed to obey the defendant’s instructions in not going to see Dr. Cockrell; and if they shall find that the plaintiff failed to obey the defendant’s instructions as aforesaid, and that said failure contributed to the injury, this .is to be considered merely in mitigation of damages, and not as a bar to the plaintiff’s right to recover. (Refused).
    
      Plaintiff's ¿¡.th Prayer.—If the jury find for the plaintiff on the foregoing instruction, then the plaintiff is entitled to such damages as will be a reasonable compensation for the loss of her finger, the inconvenience and disfigurement resulting from the same, and for the mental and physical pain resulting from the said want of skill, care and diligence on the part of the defendant. (Granted).
    And the defendant offered the following four prayers :
    
      Defendant's 1st Prayer.—If the jury find from the evidence that the plaintiff, Mrs. Griffith, came to the defendant on Feb. 17th, 1895, to be treated for a bone-felon, and that she returned on the 18th, 19th, 20th and 22nd of February, and was treated on all of said days for said disease, and that the said plaintiff did not see the defendant after the 22nd until after the amputation of her finger, then the jury are instructed that, in order to find a verdict for the plaintiff for the said amputation, they must find, under the pleadings, that the condition of her finger which made such amputation on March 2nd necessary, resulted from a disease which would have been cured by the exercise of ordinary and reasonable care on the part of the defendant on the aforesaid days, when he so treated the plaintiff, and not from any negligence of the said plaintiff after February 22nd, directly contributing thereto; and the jury are further instructed that the burden of proof is on the plaintiff to prove the negligence of the defendant, and it is not permissible for them to infer negligence of the defendant, merely from the bad condition of the finger of the plaintiff on or about the time of the amputation, apart from the other circumstances of the case. (Refused).
    
      Defendant's 2nd Prayer.—If the jury find from the evidence that the plaintiff, Mrs. Griffith, came to the office of the defendant on Feby. 17, 1895, to be treated as an office patient, for a bone-felon, and returned to the office every day thereafter, except Wednesday, Feby. 20th, to Friday, Feb. 22nd, inclusive, and was treated by the defendant on said days for said disease, and that the said plaintiff did not see the said defendant after the 22nd of February for treatment ; and if they further find that the defendant was absent from his office and did not attend to his professional work after the 22nd of February, because he had been summoned to the bedside of his father, who was dangerously ill, and that from Feb. 23rd until after the amputation of the plaintiff’s finger on March 2nd, he remained in constant attendance upon his father until his death, and after the death, in attendance upon his father’s funeral; and if they further find that he made arrangements on Feb. 24th to have all his patients treated by another competent physician, and to have all so notified who came to his office for treatment, then the jury are instructed that, in order to find a verdict for the plaintiff for said amputation, they must find, under the pleadings, that the condition of her finger which made such amputation on March 2nd necessary, resulted from a disease which would have been cured by the exercise of ordinary and reasonable care and skill on the part of the defendant, on the aforesaid days when he so treated the plaintiff, or from neglecting to treat the plaintiff up to and including Feb. 24th, and not from any negligence of said plaintiff after Feb. 24th, directly contributing thereto ; and the jury are further instructed that the burden of proof is on the plaintiff to prove the negligence of the defendant, and it is not permissible for them to infer negligence of the defendant merely from the bad condition of the finger of the plaintiff on or about the time of the amputation, apart from the other circumstances of the case. (Granted).
    
      Defendants jd Prayer.—If the jury find from the evidence in this case that the injury complained of was in any degree owing to the want of due care and caution on the part of the plaintiff, Mrs. Griffith, directly contributing to said injury, then their verdict must be for the defendant. (Refused).
    
      Defendants 4th Prayer.—Notwithstanding the jury may believe from the evidence that the defendant was guilty of negligence, yet if they shall further believe from the evidence that the plaintiff, Mrs. Griffith, was also guilty of negligence, and that the injury was directly caused partly by the defendant’s negligence and partly by the negligence of the plaintiff, Mrs. Griffith, then the verdict of the jury must be for the defendant, without regard to whose negligence was the greater. (Granted).
    The Court below (Phelps, J.) granted the plaintiff’s first and fourth prayers and defendant’s second and fourth prayers, and refused to grant defendant’s first and third prayers. The jury returned a verdict for the plaintiff for $300.
    The cause was argued before McSherry, C. J., Bryan, Fowler, Briscoe, Roberts and Boyd, JJ.
    
      Arthur W. Machen and Edgar H. Cans, for the appellant.
    As part of the plaintiff’s case, Ella La Rose was called, who had nursed the plaintiff in her sickness. And she testified, against the objection of the defendant, that in her opinion the finger was not cut to the bone, because when an incision is deep the flesh always lies open. The depth of the incision made by the lancing was one of the main questions of fact in the case. The plaintiffs charged that the negligence of the defendant consisted in not cutting the finger down to the bone, through the periosteum, under which they alleged that the poisonous pus collected in ordinary cases of bone-felon, and it was this neglect in not cutting through the periosteum and in not liberating the pus which the plaintiff claims caused the necrosed condition of the finger which made the amputation necessary.
    The defendant offered evidence tending to show that the plaintiff, Mrs. Griffiths, came to his office as an office patient on Sunday, February 17th, and he examined the finger, cleansed it and told her to come back the next day; that on the following day, Monday, February 18th, he lanced it, cutting down through the tissues to the bone, and gave other treatment; that the plaintiff came again on Tuesday, February 19th, and the finger was doing well, and that she also came on Thursday, February 21st, and Friday, February 22d, on which days the finger was doing nicely, and he gave her treatment; that he did not lance the finger again, as the first lancing was sufficient, and cut through to the bone, and properly done; that on February 23, Saturday, he received a message that his father was very ill, and he immediately abandoned his practice and spent his time entirely from that day at his father’s bedside until he died on Thursday, March 7th; that he made arrangements to have all his patients treated by Dr. Cockrell, a competen! physician, of which the plaintiff had notice ; that he did not see the plaintiff after Friday, February 22d, until some time after the amputation. The defendant'also offered evidence tending to show that the condition of the finger which made amputation necessary on March 2 might have been caused by not having it treated after February 22, and also offered evidence tending to show that this bone-felon was incurable.
    One of the main questions in the case being the depth of the incision made by the defendant, the plaintiff produced a woman, who was an ordinary nurse, called in on the very day of the incision, and who from that time nursed the plaintiff. There had been no evidence offered by the plaintiff as to the depth of the incision, except that when the finger was cut no pus escaped. This nurse, Mrs. La Rose, was asked about the size of the incision, and she gave her opinion, against the defendant’s objection, that the incision was only half way down to the bone, because when an incision is deep the flesh always lies. open. The defendant objected to this testimony because the witness had not been shown to be an expert. The only proof offered of her being an expert was that she had nursed a number of bone-felons, probably 20 or 30, and thought she had enough experience to give an opinion as to the depth of an incision from the size of the opening. The importance of this question can be seen from the fact that this opinion, admitted by the lower Court against the defendant’s objection, with the exception of the evidence that pus did not escape, was the only evidence offered by the plaintiff as to the depth of the ipcision. There can be no doubt that the determination of the depth of a cut by the appearances on the surface of the incision is a medical question requiring special medical knowledge and training. In this case the theory of the plaintiffs was that the defendant did not cut or incise the finger through the periostum or lining membrane of the bone. In order to prove that such incision had not been made they ask Mrs. La Rose her opinion, and that opinion is founded entirely on the fact that the wound was not open enough. How far open must a wound be at the surface to show a particular depth of the incision ? This is a very nice question in surgery and is dependent on many circumstances, such as the condition of the flesh at the time of cutting, the nature of the instrument, the clotting of blood, the effect of washing the wound with any adhesive ointment, the manner of making the incision itself. Now, the competency of Mrs. La Rose as an expert on the question was objected to by the defendant, and the burden of proof was put on the plaintiff to establish her competency as. an expert. Greenleaf Evidence, sec. 440, note c ; Perkins v. Stickney, 132 Mass. 217; 
      Nunes v. Perry, 113 Mass. 276; Slocovich v. Orient, 108 N. Y. 61.
    The only proof is that she is a nurse, and had nursed twenty or thirty cases of bone-felon where the finger had been cut. There is no proof that she was a trained nurse, or that she ever saw an incision made, or had ever before examined the question, of the depth of incisions from surface indications. There is no proof that she ever studied medicine or even elementary surgery, or that she had any knowledge of wounds. She nursed cases where incisions had been made, but whether these incisions were of considerable length, in what part of the finger, the condition of the finger, the character of the felon; whether a surface one, or deep in the tissue near the bone, does not appear. We submit, therefore, that the question is one requiring medical knowledge and skill in its determination, and that the witness has not been shown to have either the scientific knowledge or skill to entitle her to express an opinion. Caleb v. State, 39 Miss. 732; Rash v. State, 61 Ala. 89, 91; State v. Cross, 68 Iowa, 191; Davis v. State, 38 Md. 37; Rodger's Expert Testimony, sec. 52, page 125*.
    The second exception arises from the refusal of the Court to grant the defendant’s first prayer. The Court will remember that, from the evidence of the defendant, the plaintiff came to his office, as an office patient, on February 17, 18, 19, 20 and 22d, and that he did not see her at all after the 22'd. The purpose of the first prayer was to declare that, under the pleadings, the defendant could be held liable only for improperly treating the finger on the five days above mentioned, and not at all for any failure to treat the plaintiff after the 22d. There was evidence to show that the condition of the finger, which made amputation necessary on March 2, might have well been caused by the finger not being treated at all after February 22d, and this failure on the part of the plaintiff to have the finger treated by some other physician might not have been negligence on the part of the plaintiff, as she might have been ignorant of the necessity of having it further treated, or may have relied from day to day on the expectation of seeing the defendant again and have him continue his treatment. The second prayer does not cover the same ground, for by that prayer the jury were obliged in addition to believe: i. That the condition of the finger might have been caused by failure to have it treated after February 24th. 2. That the defendant was: absent from his office because of the illness of his father from February 22d. 3. That he made arrangements to have his patients treated by another competent physician. 4. That he made arrangements to have all his patients notified as to the other physicians.
    All these special circumstances of excuse for not being at the office the jury were obliged to find, in order to find for the defendant under this prayer, and then also that the condition of the finger might have been caused by want of treatment after February 24th, two days later than the date fixed by the first prayer. This was necessary, as the plaintiff, according to the proof of defendant, was not notified of the arrangement as to the other physician until February 24th. So that it is clear that the second prayer is substantially different from the first prayer, and the granting of the second did not give the defendant the benefit he sought under the first.
    The theory of the first prayer is that there was no duty on the part of the defendant to remain in his office to treat office patients, and if there were, it was a duty arising out of contract, and the failure to perform it at all would be the mere omission to perform a contractual obligation, which could not be sued for in this action. 1. Some authorities cited by the plaintiffs show that where a physician is attending a patient at the patient’s home and has regularly entered upon the treatment of the case he cannot stop the treatment without some good reason and without notifying the patient. But there is no authority which declares that a physician is bound to remain in his office to meet office patients who may come in at any time or may not come at all. 2. There is nothing in the declaration founding the cause of action upon the mere failure of the defendant to treat the plaintiff after February 22. The declaration is founded upon actual misfeasance, negligence and want of skill in the treatment itself. It is well settled that upon such a declaration no recovery can be had for mere non-attendance of physicians. Bemus v. Howard, 3 Watts (Pa.), 255. 3. This action is brought by husband and wife jointly for the actual tort done to the wife, in accordance with the decisions in Wolf v. Bauereis, 72 Md. 481; N. C. R. R. v. Mills, 61 Md. 355; B. C. P. R. R. Co. v. Kemp, 61 Md. 74.
    Now, though husband and wife may join in an action for actual tort to the wife, they cannot join when the cquse of action is a mere non-performance of a duty" imposed by contract. The contract of employment of a physician to attend the wife is the contract of the husband, and upon a failure to perform the duty at all founded on the contract, the cause of action is entirely in the husband. Actual negligence in the performance of the duty, even though founded on contract, is a tort for which both sue. Mere non-performance is not a tort and gives rise to no cause of action in which the wife could properly be made party plaintiff. The prayer refers especially to the pleadings in the case. The only cause- of mere non-performance of a duty growing out of contract, being torts, are in the public duties of inn-keeper and common carrier. Pollock on Torts, ch. 13, sec, 1, pages 479-81 (4 ed.). Courtenay v. Earle, 10 C. B. 73. The declaration.-in this case being confined to one allegation of active misfeasance, and.there being no liability on the part of the defendant to husband and wife to attend her for any definite time, it seems clear that under the pleadings the plaintiffs could not recover for any injury which happened to the wife by reason of the non-attendance of the defendant upon her after.Feb. 22.
    Upon the, question of contributory negligence counsel cited:, 14 Am. & Eng. Ency., p. 81; Lower v. Franks, 115 Ind. 334; Chamberlain v. Porter, 9 Minn. 260; Potter v. Warner, 91 Pa. St. 362; Reber v. Herring, 115 Pa. St. 599.
    
      Edward C. Eichelberger and W. II. DeC. Wright, for the appellees.
    It is claimed by the appellant that no sufficient foundation was laid to admit the opinion of the witness, La Rose, as an expert, but it is submitted that, considering the simple matter on which said opinion was given, the evidence of her previous experience was ample foundation. “ An expert is defined to be a'person that possesses peculiar skill and knowledge upon the subject-matter that he is required to give an opinion upon.” State v. Phair, 48 Vt. 366, 377. Such skill and knowledge may be acquired by experience. Hyde v. Woolfolk, 1 Iowa, 159, and Doyle v. Johnson, 50 N. H. 452, where the testimony of a witness was excluded chiefly because he had no practical experience.
    Whether a witness is qualified to testify as an expert is a question of fact for the presiding Judge, and his decision of such a question is usually final. Fayette v. Chesterville, 77 Me. 33. Unless it appears that there was no evidence of such qualification, the admission of the witness will not be reviewed by the Appellate Court. 1 Greenleaf Ev., sec. 440, note; Sorg v. First German Congreg., 63 Penn. St. 156, 161. The question did not call for the opinion of the witness as to the proper treatment, but simply as to the depth of the incision made by the defendant when he lanced the plaintiff’s finger. This was a question of fact, of observation, a matter on which' any person of common intelligence having observed incisions of like character, would be competent to give a rational opinion. The next exception was to the granting of the appellee’s first prayer. This embodies such a well-known rule of law as to scarcely call for any citation of authority. Cooley, Torts, 648; Shearman & Redfield on Negligence, sec. 607; Carpenter v. Blake, 75 N. Y. 12.
    The appellee’s fourth prayer merely states the general rule of damages in actions for negligence. Compensation for disfigurement or mutilation, or the mortification resulting therefrom, may be recovered in such actions, i Sedgewick on Damages, sec. 47; Sherwood v. Chicago & W. M. Ry. Co., 82 Mich. 374. In the case last cited the Court holds that compensation may be recovered for the personal inconvenience and disfigurement or permanent annoyance which is liable to be caused by the deformity resulting from the injury.
    To the rejection of appellant’s first prayer exception was also taken. One of the features of the alleged negligence of the appellant was his abandonment of this case and failure or refusal to treat the appellee when she presented herself at his office on the last two days, February the 28th and 29th, and his failure to give her notice to go to another physician. This prayer would in effect instruct the jury that in order to find for the plaintiff they must find that the injury resulted from disease which would have been cured by the exercise of ordinary and reasonable skill and care on the part of the defendant on the days when he so treated the plaintiff, and says nothing of any liability of the defendant for abandonment of the case.
    Passing the question as to what difference in the rights of the parties was caused by the fact of appellee’s undergoing treatment at his office instead of at her home, the appellant was bound, in the absence of any special agreement, to give the case his continued attention so long as the same might be necessary, unless he gave notice of his intention to discontinue his treatment or was dismissed by the appellee, and he was bound to use ordinary skill and care in determining when his attendance should cease. Potter v. Virgil, 67 Barb. 578, 580; Lawson v. Conaway, 37 W. Va. 159, 168; Ballou v. Prescott, 64 Me. 305, 313, etc.; Barbour v. Martin, 62 Me. 536, 539.
    Could the mere fact of the appellee’s undergoing treatment at the office of the appellant instead of at her home have impaired her rights in any way. ■ The appellee’s evidence tended strongly to show that Mrs. Griffith went to the office of the appellant on Sunday, Feb. 17th, and on the 18th, 19th, 21st, 22nd, 23rd, 24th and 25th ; on Monday, the 25th, she was told to return on Wednesday, 27th, if the finger was very painful, but not otherwise. She did not go on Wednesday, as the pain was not so great, but went on, Thursday, the 28th, and Friday, the 29th; on neither of said last two days did she see the appellant, nor according to her testimony was she notified to go to another physician.
    It is submitted that the mere fact of the appellee undergoing treatment at the office of the appellant instead of at her own home did not in any way lessen her right to a continued course of treatment, particularly when the appellant instructed her to cometo his office on Wednesday, the 27th, if the finger was very painful, and knew that, as he had been her regular physician for eight or nine years prior, she would undoubtedly look to him and him only for treatment and was acting entirely under his orders as to the treatment and frequency of her visits. It is stated that the rule requiring a physician, when called to attend a patient, to give his continued attention, is founded on necessity. That, were it not for this rule, a physician might amputate a limb and then abandon the case, leaving the patient to stop the flow of blood as best he could. 2 Shearman & Redfield on Negligence, sec. 613.
    The same reasoning would impose on the appellant a duty to continue his treatment of the appellee in this case, or else to give her notice of his intention to discontinue the same. Furthermore, the said prayer states the law to be, that although the appellant was guilty of negligence in his treatment of the appellee, and that negligence was a direct cause of the injury, yet if the appellee was guilty of any negligence, after the appellant ceased to treat her, directly-contributing to the injury, she could not recover, whereas the true rule is that if the jury should find the appellant guilty of negligence in his treatment, and that said negligence resulted in injury to the appellee, then any subsequent negligence of the appellee after said treatment ceased should be considered merely in mitigation of damages. Du Bois v. Decker, 130 N. Y. 325; Y. C., 27 Amer. St. Rep. 529; Lawson v. Conaway, 37 West Va. 159; Y. C., 38 Amer. St. Rep. 17. Special attention is respectfully called to these two cases, as in them prayers were held bad, which in this respect were almost identical with the appellants.
   Roberts, J.,

delivered the opinion of the Court.

This appeal is from the judgment of the Baltimore City Court. The facts are, that Mrs. Griffith, one of the plaintiffs and wife 'of the other, was suffering from a disease commonly known as bone-felon, which was upon the index finger of her right hand. - She visited the office of the defendant, a practicing physician, for the purpose of obtaining his professional assistance; he gave the plaintiff medical attention as hereinafter' stated; this action is brought by plaintiffs, jointly as husband and wife, to recover damages for the alleged negligence of'the defendant in the treatment of the plaintiff, in consequence of which, it is claimed, the wife was obliged to have a portion of her finger amputated.

In the progress of the trial in the Court below the defendant reserved two exceptions, the first of which relates to the admissibility of certain proof; the other, to the refusal by the Court to grant the defendant’s first prayer. We will consider the exceptions in the order in which they appear in the record. The plaintiffs proved by Mrs. La Rose that she had nursed the plaintiff in her sickness' whilst suffering with the bone-felon, and went to her as nurse on the 17th of February, 1895, which was the day the finger was lanced by the defendant; that the incision made in the finger was a little over a quarter of an inch in length upon the surface, and then witness’ proceeded to say, “ When an incision is deep it always lays open.” This statement was objected to by the defendant, on the ground that such testimony was not legally admissible unless it be shown that witness was an expert and competent to testify in that character. For the purpose of ascertaining whether the witness was qualified to speak as an expert, she was .asked, ‘ ‘ how many cases of bone-felon she had nursed when the diseased part has been lanced or opened.” She replied, “that she might have nursed twenty or thirty cases and added, “ that she thought she had sufficient knowledge to give an opinion as to the depth of an incision from the size of the opening.” To the competency of the witness to testify as an expert upon the question of the depth of the incision from the size of the opening the defendant objected, but the Court overruled the objection and permitted the witness to testify as an expert.

The question presented by this exception is, we think, free of serious difficulty. The nurse who testified in this case had no other qualification entitling her to speak as an expert, than that she had nursed twenty or thirty cases of bone-felon where opening or lancing had been resorted to, and from the experience gained thereby, she thought she had sufficient knowledge to enable her to say as án expert, “ that in her opinion the finger was not cut half way to the bone.” This wound did not “lay open,” and there is nothing in the testimony which shows that she probed the wound or gave to it any internal examination. She simply saw that it was not open at its surface, and then indulged in the merest speculation as to its depth. It seems to us that if she had been a thoroughly skilled and competent expert, she would, under the existing circumstances of this case, have hesitated to express an opinion as to the depth of the incision made by the defendant. It is an unsafe practice in the admission of testimony to allow witnesses to speak as experts unless the Court is well satisfied that they possess the requisite qualifications; not alone on this account, but the effect of such testimony is most difficult to estimate, from the fact that undue importance not infrequently attaches to it and gives to it an influence upon the minds of a jury to which it is not fairly or reasonably entitled: An eminent author upon the law of evidence, quotes with approval the language of Lord Campbell in the Tracey Peerage case, io Cl. & Fin. 191, that “skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.” 1 Taylor on Evidence, sec. 58. Whilst there is. undoubtedly much truth in the observations of Mr. Taylor just quoted, we must not, however, be understood as intimating that there are not many cases to be found in which expert testimony has rendered valuable assistance- in the solution of difficult and important questions arising in the Courts for determination. Mr. Wharton, commenting upon the same subject, says, that the true distinction between, the expert and the non-expert is “that the non-expert testifies as to conclusions which may be verified by the adjudicating tribunal; the expert to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every day life; the expert gives the results of a process of reasoning which can be mastered only by special scientists.” 1 Wharton on Evidence, sec. 434.

There is no evidence in the record which shows that Mrs. La Rose ever studied medicine or ever before had been called upon to investigate or inquire into the subject of the depth of incisions, judged solely by their surface indications. The mere fact that she had nursed twenty or thirty cases of bone-felon, without showing that she was possessed of any peculiar skill or knowledge in estimating the depth of incisions of like character with the one in question here, did not qualify her to speak as an expert, and we think there was manifest error in allowing her to do so. The rule allowing expert evidence will, in our opinion, be less objectionable and more conducive to justice if it be somewhat restricted, rather than relaxed. It is largely within the discretion of the trial Judge, but always subject to the opinion of the appellate Court. Baron de Bode’s case, 8 Q. B. 250-267; Di Sora v. Phillipps, 10 H. L. C. 624; Castrique v. Imrie, L. R. 4 E. & I. App. 434. We have, therefore, not hesitated to express our views upon the admissibility of such evidence, believing it to be properly reviewable by this Court.

The second exception arises from the refusal of the Court to grant the defendant’s first prayer. As already stated, this action is brought in the names of the husband and wife jointly, and if recovery is sought for the commission of an alleged tort against the wife only, the action is proper in form. Balto. City Pass. R. R. Co. v. Kemp, 61 Md. 74; Wolf v. Bauereis, 72 Md. 481. If, however, the suit has not been restricted to the recovery of damages growing out of the tort to the wife, but has been permitted to apply to and include damages for a breach of the contract of employment, the rule is different. The prayer refers especially to. the pleadings, and we must therefore determine the effect which they have had or should have had upon the trial in. the Court below. It is sought by the prayer to instruct the jury, that “ if they find from the evidence that the plaintiff, Mrs. Griffith, came to the defendant on February 17th, 1895, to be treated for a bone-felon, and that she returned on the 18th, 19th, 20th and 22d of February, and was treated on all of said days for said disease, and that the said plaintiff did not see the defendant after the 22d until after the amputation of her finger, then the jury are instructed that, in order to find a verdict for the plaintiff for the said amputation, they must find, under the pleadings, that the condition of her finger which made such amputation on March 2d necessary resulted from a disease which 'would have been cured by the exercise of ordinary and reasonable care on the part of the defendant on the aforesaid days, when he so treated the plaintiff, and not from any negligence of the said plaintiff after February 22d directly contributing thereto ; and the jury are further instructed that the burden of proof is on the plaintiff to prove the negligence of the defendant, and it is not permissible for them to infer negligence of the defendant merely from the bad condition of the finger of the plaintiff on or about the time of the amputation, apart from the othér circumstances of the case.” It is contended by the defendant that, tinder the pleadings, he could be held liable only for improperly treating the finger of the plaintiff on the days upon which he had seen her at his office, which were February the 17th, 18th, 19th, 20th and 22d, the plaintiff being an office patient and seen by the defendant only at his office on the days named. In consequence of the illness and death of defendant’s father he was continuously absent from his office, and did not again see plaintiff until after the finger had on March 2d been amputated. If the defendant had in his treatment of the finger, prior to the 24th of February, exercised reasonable care, skill and diligence, and then, because of the illness of his father, had turned the plaintiff over to Doctor Cockrell, a competent physician, for the further treatment of her finger, and the plaintiff refused to go to Doctor Cockrell for treatment, then the liability of the defendant ceased, and the plaintiff assumed to herself the consequence of any injury resulting from the neglect of her finger, for it cannot be said that the defendant, under any and all circumstances, was required to continue the treatment of the plaintiff If he provides for the further treatment of the patient in such manner as the defendant did in the case under consideration here, he has complied with every reasonable demand upon him. This Court has seldom, be it said to the credit of the profession, been required to pass upon questions of medical malpractice, but the law is settled in numerous well-considered cases, that a physician or surgeon who holds himself out to the world to practice his profession, by so doing impliedly contracts with those who employ him that he possesses a reasonable degree of care, skill and learning, and he is therefore bound to exercise and is liable for the want of reasonable care, skill and diligence, and he is responsible in damages arising as well from want of skill as from neglect in the application of skill. Long v. Morrison, 14 Ind. 595. The cases are generally agreed upon the proposition, that the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally. Patten v. Wiggins, 51 Me. 594; Tefft v. Wilcox, 6 Kansas, 46; Smothers v. Hanks, 34 Iowa, 286; Ritchey v. West, 23 Ill. 385; Leighton v. Sargent, 27 N. H. 460; Almond v. Nugent, 34 Iowa, 300; Graham v. Gautier, 21 Texas, 111.

We fully agree with the plaintiffs’ contention, that when a physician is employed to attend upon a sick person, his employment as well as the relation of physician and patient continues, in the absence of a stipulation to the contrary, as long as attention is required, and the physician or surgeon must exercise reasonable care in determining when the attendance may be properly and safely discontinued. Ballou v. Prescott, 64 Me. 305; Lawson v. Conaway, 37 W. Va. 159; A. C., 38 Am. St. Rep. 17. Whilst these cases seem to refer to the attention rendered by a physician or surgeon at the home of the patient, or where the physician or surgeon is compelled to leave his office to bestow such attention, yet, however, the principles of law controlling the right of recovery under such circumstances are practically the same. If an office patient fails to come to the office of the physician or surgeon whom he employs and from whom he has received careful and skillful treatment, and then fails to return to the office for further treatment, and in consequence thereof suffers injury, he is not entitled to maintain an action against the physician, because it is his own default and misfeasance. But we forbear further discussion of this question as the necessities of the case do not require it. Returning then briefly to the question of the pleadings: The declaration is founded upon the single allegation, that the “ actual misfeasance, negligence and want of skill” in the treatment of the finger of the plaintiff, which is alleged to have caused the injury complained of; yet the plaintiffs have not restricted their claim for damages within the scope of the pleadings, but seek to include in their recovery damages for the failure of the defendant to be present at his office on the 24th of February and thereafter, and render such services as the plaintiff’s finger may have required. No such recovery could be had under the pleadings for the reasons, first, that if a recovery is sought for, because of the failure of the defendant to attend at his office to render such service as he is claimed to have contracted to perform, such cause of action must be so laid in the declaration. Bemus v. Howard, 3 Watts, 255; and secondly, the plaintiffs cannot sue jointly as husband and wife, when the cause of action is the mere non-performance of a duty imposed by the contract of employment, which would be solely in right of the husband, and in which the wife could have no interest as a party to the action. It would result in an action wherein there would be a joinder of two inconsistent forms of action, the one ex delicto, the other ex contractu. The case of Longmead v. Holliday, 6 Exch. Repts. 761-7, which was an action by husband and wife against the defendant, who was the maker and seller of certain lamps, so-called “The Holliday Lamp;” the husband bought one of the lamps to be used by his wife and himself in his shop, the defendant warranted that the lamp was reasonably fit and proper for that purpose,, whereas the lamp was dangerous and unsafe, and when the wife attempted to use it it exploded and injured her. Parke, B., held “that the action could not be maintained by the wife, there being no misfeasance towards her, independently of the contract, which was with the husband alone.” In this view we fully concur, and think that there was error in the refusal to grant the defendant’s first prayer, notwithstanding the granting of his second prayer. For the reasons stated the judgment must be reversed.

(Decided December 3rd, 1896.)

Judgment reversed zvith costs, and new trial granted.  