West Virginia Law Review


Hale J. Posten

Document Type



A phase of the field of civil law which seldom comes within the experience of the average practitioner concerns itself with the negligence of physicians and surgeons in the practice of their profession, which is classified under the broad general term of malpractice. As the practice of medicine in its various branches tends to become a business rather than a personal relation, and the paternal position of the family physician faces into the limbo of forgotten things, it is likely that actions against doctors for their acts of negligence in the exercise of their art will become more, rather than less, frequent. When the medical profession laid aside outmoded and unsanitary the shawl of the family doctor, who served as friend and confidant as well as physician, and assumed the efficient white jacket of specialization and commercialism, it likewise lost the armor of infallibility that the shawl concealed. Although present day methods are undoubtedly the better, they must stand alone in the full glare of the light of scientific merit, unprotected by the shadows of friendship. As evidence of the former reluctance of patients to question the wisdom of their doctors, it is to be noted that relatively few cases have appeared in the records of the Supreme Court of Appeals of West Virginia concerning civil suits for malpractice by physicians, and a portion of these hereinafter considered do not involve this question directly. Even considering the numerical paucity of West Virginia decisions on the question, the cases thereunder run the entire gamut of topics involved, and are the subject of most thorough and excellent opinions. Practically every West Virginia case of this type is recognized as authority upon its subject in all jurisdictions, and a study of the general law of malpractice encounters many citations to the decisions of the Supreme Court of Appeals of West Virginia. It is well established by precedent that the ordinary relation of physician and patient is more nearly consensual than contractual. The relation and rights and duties incident thereto have their inception in the position in which the parties find themselves placed through force of circumstance, rather than by any specific, voluntary agreement. Due to the peculiar nature of the relation, the remedies for violation of the duties thereof are twofold. If the unusual case of a special contract exists, then of course the remedy may be directly on that contract. If, however, no such contract is made, there is still the implied contract of service, upon which an action may be maintained. In either instance a breach of the professional duty involves a charge of negligence and an action may be maintained for the resulting injury. Text writers have sometimes said that the patient may have his election of an action for the tort, or may waive the tort and proceed on the contract, either express or implied. Whatever view is taken the result is the same; the injured party has his choice of remedies. The law in West Virginia as to the dual nature of the remedy was first stated in Kuhn v. Brownfield., That and subsequent cases have made it clear that either case or assumpsit may be maintained for malpractice. The court bases liability upon breach of an implied obligation arising from the employment.



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