
    James W. Craig v. James Chambers and wife.
    The implied liability of a surgeon, retained to treat a case professionally, ex tends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment. And in an action against the surgeon'for malpractice, the plaintiff, if he shows no injury resulting from negligence, or want of due skill in the defendant, will not be entitled to recover nominal damages.
    Error to the district court of Bichland county.
    The original action was brought by James Chambers and Jane,, his wife, against. James W. Craig, the plaintiff in error, for malpractice as a surgeon in treating a dislocated shoulder and injured arm of the plaintiff, Jane.
    On the trial a bill of exceptions was taken, from which it appears that evidence was given tending to show that about December 14,. 1862, the plaintiff, Jane, accidentally dislocated her shoulder, and otherwise injured her arm; that the plaintiffs retained the defendant below, as a surgeon, to ^manage, take care of, and treat the injuries so received by the said Jane; that the defendant, in pursuance of his retainer, did professionally, as a surgeon, manage and treat said injuries, but, in so doing, did not exercise the ordinary care, skill, or diligence of surgeons in such cases; that he managed and treated the injured shoulder and arm negligently and unskillfully, and failed to cure said injuries.
    The foregoing is all that is shown by the bill of exceptions in regard to the evidence offered on the trial.
    On the submission of the case to the jury, the plaintiffs’ counsel moved the court to instruct the jury as follows:
    “ That if they found that the .plaintiffs retained the defendant, as a surgeon, to manage, take care of, and treat the injury to plaintiff’s shoulder, described in the petition, in a skillful and proper manner, and that the defendant, being so retained, did professionally, as a surgeon, manage and treat said injured shoulder, and, in such management and treatment, did not exercise the ordinary care, skill, or diligence of surgeons in such cases, and failed to cure said injury, then, and in that case, the plaintiffs were entitled to recover in this .-action, unless it appeared from the proof that the plaintiffs had suffered no damage from such want of care, skill, or diligence.”
    This instruction the court refused to give. But, among other things, instructed the jury as follows:
    That, under the circumstances stated in the above proposition, the defendant impliedly engaged and was bound to use, in the performance of the undertaking, such reasonable skill, diligence, and attention as may be ordinarily exjjeeted of- persons in that profession ; that he did not undertake to bind himself to use the highest degree of skill, or an extraordinary amount of diligence; but to bring to the exercise of his profession, in the particular case, a fair, ordinary, and reasonable degree of knowledge, diligence, and attention.
    That if the jury should find, from the evidence, that the defendant, in the management and treatment of the injuries of the plaintiff, did not exercise the ordinary care, skill, or diligence of the profession in such cases, and that he failed to cure the plaintiff, and that any of the injuries of which *she complains resulted -from such negligenee, the plaintiff would be entitled to a verdict.
    But that the plaintiff would not be entitled to a verdict, unless the evidence satisfied the jury that some portion o'f the injury of which the plaintiff complains, was the result of some want of proper skill, diligence, or attention of the defendant; or that the plaintiff was in some way damaged by such negligence.
    To the refusal to charge as asked, and to the charge as given, the plaintiffs excepted.
    A verdict having been returned for the defendant, judgment was entered accordingly.
    On petition in error to the district court, the judgment was reversed ; and to reverse this judgment of reversal, is the object of the present petition in error.
    
      Matson & Dirlam, for plaintiff in error:
    The question raised is, in actions founded solely upon the negligence of an employe, can there be a recovery, unless it affirmatively appear that the negligence complained of was such that the proof of the negligence was proof of damage, or that some •damage or injury has resulted to the plaintiff from the negligent ■act complained of.
    The liability of the surgeon grew out of his having entered upon the employment. Had the services been gratuitous, the law would' have required the surgeon to have exercised the ordinary care of his profession; and he would have been, liable for injury caused by gross negligence, whether he was to be paid for his services or not.
    It was-the understanding, the entering upon the employment, which created the legal duty. If he is grossly careless and negligent in the performance of the duty, he is liable for all injury sustained, which directly or approximately resulted from the negligence, and no further.
    Upon the proposition that the retainer is not material, see the case of Coggs v. Bernard, Lord Raymond, 909 ; also Smith’s Lead. Cases, 334; Pippin v. Sheppard, 11 Price, 400.
    The professions of physicians and surgeons are quasi public in their natures, and the authorities all agree that those who *are engaged in the practice of difficult professions, as surgeons, are not to be held responsible for every negligent or unskillful act, but only for gross negligence. See 4 Peters, 174; 2 Starkie’s Ev. 123; Greenl. Ev. 138 et seq.; Barkie v. Chandless, 3 Camp. 17.
    A party practicing surgery, where he can be governed .by no-fixed rules, and where, from the nature of the case, there can be no fixed standard as to what is negligent and what is skillful; where what would be considered skillful in one case might be con- - sidered gross negligence in another, and where the condition of the patient, over which he has and can have no control, may make every effort to cure futile; where almost everything, after all, has •• to be left to the efforts of nature, which may be impeded and rendered abortive by secret and hidden causes beyond the power of the surgeon to discover, explain, or control — with all the above difficulties to contend with, the professional surgeon ought not to - be held responsible unless the injury complained of resulted from his negligence or unskillfulness, or the patient is in some way injured by the negligent act.
    In law, the failure to establish a fact material to the issue is equivalent to the non-existence of that fact; and the failure of proof is equivalent to a finding against the existence of such fact.
    The proposition asked to be charged, and refused by the court below, amounts to this and no more: “The plaintiff can recover,” if the jury find negligence, although there is no damage or injury xesulting from the negligence.”
    It is against reason that a failure to recover from an injury shall be proof that the failure was the result, and caused by some careless act of the surgeon, when the evidence establishes no connection whatever between the negligence and the failure; more •especially when the complaining party alleges no specific act of negligence, and the record does not disclose in what the negligence ■consisted.
    See 12 Ohio St. 496; B. & I. R. R. Co. v. Bailey, 11 Ohio St. 333; Lare v. Prentice, 8 East, 348; Hauke v. Hooker, 7 Car. & P. 81; Lanphier v. Phipas, 8 Car. & P. 475.
    The court will refuse to grant a new trial, or reverse a judgment *where only nominal damages could be recovered. 5 Ind. 250; 6 Rich. (S. C.) Law, 75; Burthingham v. Fay, 1 Johns. Cas. 255; 11 Ohio St. 573; 1 Burrows, 11, 54; State v. Miller, 5 Blackf. 381; 8 Johns. 369; Sedg. on Damages, 56; Paul v. Sleason, 22 Vt. 231; Young v. Spencer, 10 Barn. & Cress. 145; Cooper v. Hall, 5 Ohio, 323; McElroy v. Goble, 6 Ohio St. 187.
    
      Geddes, ¡Burns, and ¡Dickey, for defendants in error:
    1. The judgment, of the district court, reversing that of the common pleas, is not a judgment, within the meaning of section 514 of the code, that may be revised or reversed in the Supreme Court. A judgment of reversal is not a final determination of the rights of the parties in the action. Code, sec. 370. The case is still pending in tbe common pleas, and no final determination of the rights of the parties can take place until another judgment is rendered. None •of the issues made by petition and answer are determined. The judgment of the district court is simply advisory to the court below upon questions of law, disposing of no question of fact; and even the questions of law are not so disposed of, but that they may be again passed upon by the district court. Code, sec. 517; Kelley v. Hunter, 12 Ohio, 216; Kinsley v. The State, 3 Ohio St. 518.
    2. Twu questions were made by defendants in error, in the common pleas, and decided adversely to them :
    
      First. That upon proof of the retainer, a failure by plaintiff in error to cure, and that he failed to exercise the ordinary care, skill, •or diligence of surgeons in such cases, the defendants in error were -entitled to recover.
    
      
      Second. That after the introduction of .such proof on the jpart of ■the plaintiffs in the original action, the durden of showing that plaintiffs suffered no damage from such want of care, skill, or diligence, Tested upon the defendant in that action.
    We maintain that there is an implied contract on the part of the •surgeon, when retained in the ordinary way professionally, for hire, that he will exercise the ordinary care, skill, and diligence of his profession, in the treatment of his patient. *Grindel v. Rush and Green, 7 Ohio, 123; Marzetti v. Williams et al., 20 E. C. L. 415.
    In this case it was the negligence, want of care and skill that constituted the cause of action. This was the breach of contract, -and the actual damages sustained were only important in determining the amount of the recovery. See Howell v. Young, 5 Barn. & Cress. 259; Wilcox v. Plummer’s Ex’rs, 4 Peters, 172; Kerns v. Schoonmaker, 4 Ohio, 331; Landon v. Humphrey, 9 Conn. 212.
    The charge asked for in this case was, in substance, that proof •of the retainer, of negligence, and want of ordinary skill, and a failure to cure, was prima facie proof of damage; and that the burden of showing that no damages were suffered from such want of care, skill, or diligence, rested upon the defendant in the action. Bourne v. Diggles et al., 18 E. C. L. 384; 2 Chitty, 311; 1 Saunders on Pl. and Ev. (4 Am. ed.) 168; 2 Wilson, 422.
    The charge given to the jury not only required the plaintiff to establish the want of skill, care, and diligence, in order to recover, but to go one step further, and satisfy the jury that the failure to cure was the result of such want of care, skill, and diligence. This, from the very nature of the case, is almost impossible in a majority of instances. When negligence has occurred, and a failure to cure been the result, who can say that, with ordinary care on the part •of the surgeon, the patient would have recovered from the injury ?
    Ordinary care and diligence on the part of the surgeon, is that •degree of care which members of the profession, those learned in the art, generally think necessary to enhance the probabilities of recovery or cure, on the part of the patient; in other words, it is that degree of care which members of the profession generally think will be of advantage to the patient, and without which the patient will suffer detriment and damage.
    Proof of a want of ordinary care and skill, and a failure to cure, is in fact proof that the patient has been deprived of a portion of' bis or her chances for recovery and cure.
   White, J.

We are of opinion that the district court erred in reversing the judgment of the court of common pleas. *The evidence tended to show nothing more as to the character of the undertaking of the defendant than that he was employed, under a retainer, to treat professionally the injured arm and. shoulder of the plaintiff, Jane.

By accepting the retainer, he bound himself to bring to the performance of his undertaking a reasonable degree of care and skill; but in the absence of a special agreement to do so, he did not undertake to perform a cure. Nor can negligence be implied from the failure of the defendant to effect a cure. Such failure may have arisen from the age and constitution of the patient, or from, the inherent difficulties growing out of the nature of the injury, which may have been such as to baffle the highest degree of skill and care. The evidence did not tend to show, nor did the instruction asked imply, that the failure to cure was attributable to-the alleged negligence.

Omitting, therefore, from the instruction asked, the qualification contained in it of the defendant’s failure to cure the plaintiff, and it was substantially this: That if the defendant, in the management and treatment of the case, did not exercise ordinary care and skill, the plaintiffs were entitled to recover, unless it appeared from the-proof that the plaintiff had suffered no damage from the want of' such care and skill.

The evidence tended to show no specific fact of negligence, from the nature of which injury to the patient might be inferred.

The terms in which negligence is imputed to the defendant in the • instructions asked, are used in a very general and indefinite sense, and have reference to and include the want of ordinary skill and -care in matters which cause no injury, as well as in matters which do cause such injury. This is apparent from the connection that is-supposed to exist between the right to recover, and the last clause of the instruction which would defeat a recovery, if it apjieared. •that no damage was suffered. The meaning of the instruction evidently is, that notwithstanding negligence of the kind spoken of may exist, yet if it appear affirmatively that the plaintiff suffered.. no injury, there can be no recovery; but if it do not so appear, the plaintiff ought to recover.

The real question therefore is, on whom is the burden of proof *as respects the existence or non-existence of the injury complained of?

We think it rests on the plaintiff, not, of course, to prove the fact beyond a reasonable doubt, but by a preponderance of evidence-arising either from the nature of the negligent act or omission, or-made to appear otherwise, as may be warranted by the nature of the case.

This results from the nature of the plaintiff’s demand. Her action is founded on the breach, by the defendant, of the duty which he owed her, or of the contract to be implied between them arising-from the employment. But the implied liability on the part of a professional man, in our opinion, goes no further than that he will indemnify his employer against any injurious consequences resulting from his want of proper skill, care, or diligence in the execution of his employment. Therefore, where there is no injury, there is no breach; and the evidence must warrant the jury in inferring injury before they can find a breach.

And this conclusion we believe to be supported by the authorities.

In 1 Saund. on Plead, and Ev. (side p. 267), it is said: “The-plaintiff must show that the injury sustained resulted from the negligence of the defendant.”

In Hancke v. Hooper (7 Car. & P. 81), which was an action against a surgeon for negligence, Tindal, C. J., said: “A surgeon is. responsible for an injury done to a patient through the want of proper skill in his apprentice; but in an action against him, the plaintiff must show that the injury was produced by such want of skill, and it.is not to be inferred.”

And in Lanphier and wife v. Phipas (8 Car. & P. 475), which, was an action of like character, the same judge uses this language in reference to the defendant’s liability: “ He undertakes to bring to. the exercise of his profession a fair, reasonable, and competent degree of skill; and in an action against him by a patient, the question for the jury is, whether the injury complained of must be referred to the want of a proper degree of skill and care in the defendant or not.”

It is true that every injury imports at least nominal damage-

But an injury is not presumed, and must be proved. *It is also true that where an injury is shown, prima facie, to be referable to the want of the proper degree of skill or care, if due skill and care would have been ineffectual, the defendant must show it. But in the present case, as before remarked, the evidence tended to prove no fact of negligence or want of skill from which injury might be inferred; nor does it appear that the evidence tended to prove an injury, from the nature of which either negligence or the want of the proper degree of skill could be inferred.

It does not apj>ear that any question was made, in the instructions of the court to the jury, as to what would constitute an injury to the plaintiff in a case like the present; and, if specific instructions were asked on the subject, it is to be presumed that they were given correctly. But, in view of one part of the argument of the counsel ■of the defendant in error, it is proper to say, that we suppose that •any want of the proper degree of skill or care which diminishes the chances of the patient’s recovery, prolongs his illness, increases his •suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury.

The remaining question is, whether the judgment of the district court can be reviewed, on error, while the cause is pending in the ■court of common pleas, to which it was remanded for retrial by the district court.

The counsel of the defendant in error claims that it can not. This question, however, has already been decided in the affirmative, at the present term, in Schaeffer et al. v. Marienthal et al.

We find no error in the refusal to charge as asked, nor in the charge as given.

The judgment of the district court will be reversed, and that of the common pleas affirmed.

Day, C. J., and Welch, Brinkerhoee, and Scott, JJ., concurred. 
      
       Ante, 183.
     