Although I signed the Departmental opinion in this case and was inclined to adhere to it in the conference following the hearingEn Banc, I have, after further consideration, concluded that it ought either to be set aside or materially modified. I fear that the opinion, as it stands, may be justly interpreted as holding that a jury may find that a physician's mere mistake of judgment, such as concluding that a patient's condition is not so serious as to require him to make daily calls, or sufficiently serious as to require hospitalization, constitutes malpractice. *Page 179 I assume that no one will contend that this has hitherto been the law.
It may be conceded that it is within the province of the court to adopt new principles from time to time, or at least to make liberal applications of the old, in order to keep the common law responsive to changed conditions. But the question as to whether such action shall be taken, is not to be determined by the supposed hardships of an individual case. The test is whether or not an enlightened public policy requires it.
I cannot conceive how it can be thought that public policy or concern for the general public interest requires the adoption of the rule which the majority opinion seems to approve. It is loudly, vociferously, and continuously asserted by the advocates of socialized medicine that medical service is beyond the reach of many people because of its cost. If there be any truth in this assertion, is it wise to adopt a rule which must inevitably greatly increase such costs? I say inevitably, because it is clear that, if such a rule is to obtain, a physician can only adequately protect himself by making daily calls on every patient and by ordering his patients into hospitals upon the first indications of danger, lest, if he fail to do so and there be an unexpected fatal result, a jury of laymen, with no experience whatever in diagnosis or prognosis, may find him guilty of malpractice, to his damage in property loss and injury to his professional standing.
I cannot believe that the bringing about of such a condition is in the public interest, and I, therefore, dissent. *Page 180