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Title: Medical Jurisprudence, Forensic medicine and Toxicology  - vol 1 of 4
Author: Becker, Tracy Chatfield, Witthaus, Rudolph August
Language: English
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                         TRANSCRIBER’S NOTES:

—Obvious print and punctuation errors were corrected.

—Bold text has been rendered as =bold text=.

—Multiple and antiquate spelling of specialistic words, expecially in
 French and German, have beed manteined out of consistency and due to
 the impossibility of determining what the spelling whas at the time
 this work was composed.



                                MEDICAL

                             JURISPRUDENCE


                           FORENSIC MEDICINE

                                  AND

                              TOXICOLOGY


                                  BY

                      R. A. WITTHAUS, A.M., M.D.

_Professor of Chemistry, Physics, and Hygiene in the University of the
                     City of New York, etc., etc._

                                  AND

                     TRACY C. BECKER, A.B., LL.B.

      _Counsellor at Law, Professor of Criminal Law and Medical
              Jurisprudence in the University of Buffalo_


                      _WITH THE COLLABORATION OF_

     J. CLIFTON EDGAR, M.D.; D. S. LAMB, M.D.; W. B. OUTTEN, M.D.;
               HON. WM. A. POSTE; EDWARD S. WOOD, M.D.;
                         E. V. STODDARD, M.D.;
     HON. GOODWIN BROWN; J. C. CAMERON, M.D.; E. D. FISHER, M.D.;
    H. P. LOOMIS, M.D.; ROSWELL PARK, M.D.; IRVING C. ROSSE, M.D.;
            F. P. VANDENBERGH, M.D.; J. H. WOODWARD, M.D.;
                          GEORGE WOOLSEY,M.D.


                              VOLUME ONE


                 NEW YORK WILLIAM WOOD & COMPANY 1894



                           COPYRIGHT, 1894,
                       BY WILLIAM WOOD & COMPANY

                               PRESS OF
                   THE PUBLISHERS’ PRINTING COMPANY
                       132-136 W. FOURTEENTH ST.
                               NEW YORK



                               CONTENTS.


                                                                    PAGE

INTRODUCTION,                                                        v


 MEDICAL JURISPRUDENCE,                                               1

  The Legal Relations of Physicians and Surgeons. T. C.
  BECKER,                                                              3

  The Law of Evidence Concerning Confidential Communications.
  CHAS. A. BOSTON,                                                    89

  Synopsis of the Laws Governing the Practice of Medicine.
  W. A. POSTE and CHAS. A. BOSTON,                                   135


 FORENSIC MEDICINE.

  THANATOLOGICAL,                                                    293

  The Legal Status of the Dead Body. T. C. BECKER,                   295

  The Powers and Duties of Coroners. A. BECKER,                      329

  Medico-Legal Autopsies. H. P. LOOMIS,                              349

  Personal Identity. J. C. ROSSE,                                    383

  Determination of the Time of Death. H. P. LOOMIS,                  437

  Medico-Legal Consideration of Wounds. G. WOOLSEY,                  457

  Medico-Legal Consideration of Gunshot Wounds. ROSWELL PARK,        591

  Death by Heat and Cold. E. V. STODDARD,                            627

  Medico-Legal Relations of Electricity. W. N. BULLARD,              661

  Medico-Legal Consideration of Death by Mechanical Suffocation.
      D. S. LAMB,                                                    705

  Death from Submersion or Drowning. J. C. ROSSE,                    793

  Death from Starvation. E. V. STODDARD,                             813



INTRODUCTION.


THE terms FORENSIC MEDICINE, LEGAL MEDICINE, and MEDICAL JURISPRUDENCE
have heretofore been used interchangeably to apply to those branches
of state medicine and of jurisprudence which have to deal with the
applications of medical knowledge to the elucidation of questions of
fact in courts of law, and with the legal regulation of the practice of
medicine.

MEDICO-LEGAL SCIENCE therefore includes all subjects concerning which
members of the legal and medical professions may seek information of
one another, each acting in his professional capacity. It consists
of two distinct branches: that treating of medical law, to which
the designation of MEDICAL JURISPRUDENCE properly applies; and that
relating to the application of medical, surgical, or obstetrical
knowledge to the purposes of legal trials, FORENSIC MEDICINE.[1]

The term STATE MEDICINE, which is sometimes erroneously used as
synonymous with forensic medicine, properly applies to a more extended
field of medical inquiry; _i.e._, to all applications of medical
knowledge to the public welfare. State medicine, therefore, while
excluding medical jurisprudence, includes, besides forensic medicine,
public hygiene, medical ethics, medical education, and military and
naval medicine.

TOXICOLOGY, the science of poisons, may be divided into _medical
toxicology_, whose object is the prevention or cure of all forms of
poisoning, and _forensic toxicology_, whose aim is the detection of
criminal poisoning. In its last-named relation toxicology differs from
forensic medicine in one important particular. In all cases other than
those of poisoning in which questions involving medical knowledge
arise, the answers are entirely within the functions of the physician,
the surgeon, or the obstetrician, but the problems of forensic
toxicology require for their solution the further aid of the chemist
and the pharmacologist.

Forensic medicine is an applied science, partly legal, partly medical,
calling for information and investigation in widely divergent lines,
and becoming more minutely ramified with the progressive advances in
medical knowledge and in those sciences of which medicine is itself
an application. Its development has been dependent partly upon the
slow though progressive tendency of medicine from the condition of an
empirical art toward that of an exact science, and partly upon the
more rapid and more advanced development of criminal jurisprudence.
Medical jurisprudence had reached a high development during the early
history of the Roman Empire, and at a period long anterior to the first
recognition of forensic medicine.

Although the literature of modern medico-legal science is very
largely written from the medical point of view and by physicians, its
earlier history is to be found in fragmentary form, partly in medical
literature, but principally in the writings of historians, in the
earlier criminal codes, and in the early records of legal proceedings.

In the earliest historical periods the functions now exercised by
the priest, the lawyer, and the physician were performed by the
same person, who, presumably, made use of what medical knowledge he
possessed in the exercise of his legal functions. Among the Egyptians
at a very early period it is certain that medical questions of fact
were considered in legal proceedings, and that the practice of medicine
was subject to legal regulation. According to Diodorus,[2] “when a
pregnant woman was condemned to death, the sentence was not executed
until after she was delivered.” The same author tells us[3] that “the
physicians regulated the treatment of the sick according to written
precepts, collected and transmitted by the most celebrated of their
predecessors. If, in following exactly these precepts which are
contained in the sacred books, they did not succeed in curing the sick,
they could not be reproached, nor could they be prosecuted at law; but
if they have proceeded contrary to the text of the books, they are
tried, and may be condemned to death, the legislator supposing that but
few persons will ever be found capable of improving a curative method
preserved during so long a succession of years and adopted by the most
expert masters of the art.” With the system of legal trial in use among
the Egyptians[4] it is difficult to imagine that the question of the
existence of pregnancy in the one case, or of malpractice in the other,
would not be the subject of contest, and, if contested, determined
without the testimony of obstetricians or of physicians.[5]

Medical knowledge among the Hindoos was further advanced than among
the Egyptians. In the Rig Veda (about 1500 B.C.) occur a few medical
references, among which is the statement that the duration of pregnancy
is ten (lunar) months.

The earliest purely medical Sanskrit texts are the Ayur Vedas of
Châraka and Sûsruta, which were probably written about 600 B.C., but
which are undoubtedly compilations of information which had been handed
down during many centuries before that time. In each of these is a
section devoted to poisons and their antidotes (Kalpa), in which it is
written that a knowledge of poisons and antidotes is necessary to the
physician “because the enemies of the Rajah, bad women, and ungrateful
servants sometimes mix poison with the food.” Full directions are
also given for the recognition of a person who gives poison, and to
differentiate the poisons themselves, whose number, from all the
kingdoms of nature, is legion. The age at which women may marry is
fixed at twelve years, while men may not marry before twenty-five. The
duration of pregnancy is given as between nine and twelve lunar months,
the average being ten. The practice of medicine is restricted to
certain castes, and requires the sanction of the Rajah, and the method
of education of medical students is prescribed.[6]

It is singular that the Greeks were apparently destitute of any
knowledge of legal medicine. Although medicine and jurisprudence were
highly developed among them, allusions to any connection between the
two are of very rare occurrence and uncertain.

The Hippocratic writings (_ca._ 420 B.C.) contain many facts which
are of medico-legal interest: the possibility of superfœtation was
recognized;[7] the average duration of pregnancy was known, and
the viability of children born before term was discussed,[8] the
relative fatality of wounds affecting different parts of the body was
considered,[9] and the Hippocratic oath makes the physician swear that
he “will not administer or advise the use of poison, nor contribute to
an abortion.” The position of the physician in Greek communities was an
exalted one. No slave or woman might be taught medicine,[10] although
later free-born women were permitted to practise in their native
places. Homer also refers to physicians as men of learning and of
distinction.[11] The Greek physician was therefore in a position, both
from his information and from his standing in the community, to aid in
the administration of justice.

The Greeks were also extremely litigious and possessed a code of
criminal procedure which was elaborate, and in many respects resembled
those now in use in England and the United States.[12] The writings of
the Greek orators, Demosthenes, Æschines, Lysias, Antiphon, Isocrates,
etc., which have come down to us substantiate the claim of Ælian
that “to Athens mankind is indebted for the olive, the fig, and the
administration of justice.”[13]

The writings of the Greek physicians contain no reference to any legal
application of their knowledge, and certain passages in the writings
of the orators seem to indicate that, while a physician was called to
inspect and treat a wounded person, the testimony as to the patient’s
condition was given in court by others.

Thus in the case against Euergos and Mnesibulus, in which an old woman
had died some days after an assault, Demosthenes[14] states that he
notified the accused to bring a surgeon and cure the woman; but that
as they did not do so, he himself brought his own surgeon and showed
him her condition in the presence of witnesses. Upon hearing from the
surgeon that the woman was in a hopeless condition, he again explained
her state to the accused and required them to find medical aid.
Finally, on the sixth day after the assault the woman died. He further
asserts that these statements would be proved by the depositions.[15]

The third Tetralogy of Antiphon[16] (B.C. 480) relates to a case in
which the defence was essentially the same as that which was the
subject of a vast amount of medical expert testimony in a celebrated
trial for murder in New York not many years ago. A person wounds
another, who dies some days afterward. The assailant is accused of
murder and sets up the defence that the deceased perished, not from
the wounds inflicted, but in consequence of unskilful treatment by the
physicians.

In neither of these cases is any mention made of physicians having been
called upon for testimony; indeed, the statements would lead to the
inference that they were not. In another case in which a poor and sick
citizen is accused of malingering to obtain the customary pecuniary
aid from the State, Lysias[17] summons no medical evidence but relies
entirely upon a statement of his client’s case.[18]

Medical legislation was not more advanced during the ascendancy of
the Roman Empire, although medical science was greatly developed,
principally by the labors of Celsus, and of Galen and other Greek
physicians. A few cases are mentioned by the historians which would
seem to indicate a closer connection between law and medicine than
had existed among the Greeks, but they refer rather to the custom of
exposing the bodies of those who had died by violent means to public
view, in order that any one might express his opinion as to the cause
of death, than to any appeal to medical science in the administration
of justice. Thus Suetonius[19] says that the physician Antistius
examined the dead body of Julius Cæsar (B.C. 44), and declared that of
all the wounds only that received in the breast was mortal.

Pliny[20] cites an early instance of contested interpretation of
post-mortem appearances in the case of Germanicus, who died A.D.
19, by the action of poison, said the enemies of Piso, because the
heart did not burn. The friends of Piso, while admitting the fact
of non-consumption, attributed it to the deceased having had heart
disease. The same author[21] quotes Masurius as having declared a child
born after thirteen (lunar) months to be legitimate, in an action for
the possession of property, on the ground that no certain period of
gestation was fixed. The Emperor Hadrian (A.D. 117-138), according to
Gellius, sought medical information in a similar case, and decreed the
legitimacy of a child born in the eleventh (lunar) month, “after having
considered the opinions of ancient philosophers and physicians.”[22]

Although the Justinian collections, the “Codex” (A.D. 529), the
“Institutes” (A.D. 533), the “Digests,” or “Pandects” (A.D. 534),
and the “Novels” (A.D. 535-564), prepared by the best legal talent
of the age, under the direction of Tribonian, do not provide for the
summoning of physicians as witnesses; they contain an expression which
indicates that at that time the true function of the medical expert
was more correctly appreciated than it is to-day. His function was
stated to be judicial rather than that of a witness.[23] There is
also a provision that in cases of contested pregnancy, midwives (who
were considered as belonging to the medical profession) should, after
examination of the woman, determine whether or no pregnancy exist, and
that their determination should be final. The practice of medicine,
surgery, and midwifery was regulated. Those desiring to practise must
have been found competent by an examination. The number of physicians
in each town was limited. They were divided into classes, and were
subject to the government of the Archiatri. Penalties were imposed upon
those guilty of malpractice or of poisoning. The Justinian enactments
contain abundant internal evidence of having been framed in the light
of medical knowledge. They contain provisions relating to sterility
and impotence, rape, disputed pregnancy, legitimacy, diseased mental
conditions, presumption of survivorship, poisoning, etc., which
indicate that the medical knowledge of the time was fully utilized in
their construction.[24]

The Germanic peoples at about the same period possessed codes in
which traces of a rudimentary medical jurisprudence existed. The most
ancient of these was the Salic law (A.D. 422), in which the penalties
to be paid for wounds of different kinds are fixed. The Ripuarian law,
of somewhat later date, takes cognizance of the crime of poisoning.
The laws of the Bavarians, Burgundians, Frisians, Thuringians, and
Visigoths contain practically nothing of medico-legal interest. The Lex
Alamannorum has numerous provisions relating to wounds, and expressly
provides that the gravity of the injury shall be determined by a
physician.[25]

During the period of about a thousand years, intervening between
the Justinian and Caroline (_vide infra_) codes, the advancement of
medicine and jurisprudence suffered almost complete arrest. The guilt
or innocence of an accused person was determined rather by his own
confession under torture, or by “the judgment of God” as shown by
ordeal or by judicial combat, than by testimony either expert or of
fact.

Even during the night of the Middle Ages, instances are recorded in
which the opinions of physicians were sought to determine questions of
fact in judicial proceedings.

In the duchy of Normandy, in 1207-45, the laws provided for the
examination of those claiming to be sick (to evade military service or
appeal to judicial duel), of persons killed, and of women.[26]

In a decretal of Innocent III., in 1209, the question whether a certain
wound was mortal was determined by physicians.[27]

There is extant in the statutes of the city of Bologna, under date of
1249, an entry to the effect that Hugo di Lucca had been assigned the
duty, when called upon by the podesta, and after having been sworn, to
furnish a true report in legal cases.[28]

In the kingdom of Jerusalem (_ca._ 1250) a person claiming exemption
from trial by battle because of sickness or of wounds was visited by
a physician (_fisicien au miége_) and a surgeon (_sérorgien_), who
examined him and made oath as to his condition.[29]

Sworn surgeons to the king are also mentioned in letters patent of
Philippe le Hardi in 1278, of Philippe le Bel in 1311, and of Jean II.
in 1352.[30] That of Philippe le Bel refers to Jean Pitardi as one of
“his well-beloved sworn surgeons in his Chastelet of Paris,” whose
functions are partly indicated by the extracts from the registers given
below.

The registers of the Châtelet at Paris from 1389 to 1392 record several
instances in which medical aid was rendered in judicial proceedings.
Under date of March 22d, 1389-90, “Maître Jehan Le Conte, sworn surgeon
to the king our sire,” reports to Maître Jehan Truquam, lieutenant to
the provost, that “upon that day in the morning one Rotisseur had gone
from life unto death in consequence of the wounds which he had received
on the Monday evening preceding.”[31] Under date of July 22d, 1390,
is an account of the examination of one Jehan le Porchier, accused of
intent to poison the king (Charles VI.), in which there is reference
to a very early instance of toxicological expert evidence. In the
wallet of the accused certain herbs were found. The account proceeds:
“Richart de Bules, herbalist, was summoned, to him the above-mentioned
herbs were shown, and he was commanded that he should examine them and
consider well and duly, reporting the truth of what he should find.
The said Richart, after having examined them with great diligence,
reported that in the box in which these herbs were he had found six
leaves, namely: one leaf of _jacia nigra_, and one of round plantain,
called in Latin _plantago minor_, and four of sow-thistle (_lasseron_),
called in Latin _rosti poterugni_, and says that the leaf of _jatria
nigra_ is poisonous, but that in the others there is no poison known
to the deponent.”[32] On August 12th, 1390, “Jehan Le Conte and Jehan
Le Grant, sworn surgeons of our sire the king,” are present at the
torture of a prisoner, but for what purpose does not appear. In another
case the same Jehan Le Conte testified that a wound in the head of a
deceased person was made with an axe.[33] At a later period in Italy,
the infliction of “the question” took place under medical supervision.
Zacchias devotes a chapter, _De Tormentis et Pœnis_,[34] to the
consideration of the different methods of torture, the degrees of pain
and danger attending each, and the conditions of age, sex, and health
which render its application inadmissible.[35]

During this period, as indeed from the earliest times, the practice
of medicine was regulated by law. Thus a law of King Roger of Sicily
(1129-54) punished those who practised medicine without authority with
imprisonment and confiscation of goods; and an edict of Frederick II.
(1215-46) imposed like penalties upon those who presumed to practise
except after graduation at the school of Salernum.[36]

Medico-legal science was formed in the middle of the sixteenth century
by a simultaneous awakening of jurists and physicians to the importance
of the subject.

It was in Germany that expert medical testimony was first legally
recognized. In 1507, George, Bishop of Bamberg, proclaimed a criminal
code in his domains. This was subsequently adopted by other German
states, and finally was the model upon which the _Caroline Code_, the
first general criminal code applying to the whole empire, was framed
and proclaimed at the Diet of Ratisbon in 1532.[37]

These codes, particularly the Caroline, distinctly provide for
utilizing the testimony of physicians. Wounds are to be examined by
surgeons who are “to be used as witnesses;”[38] and in case of death
one or more surgeons are to “examine the dead body carefully before
burial.”[39] They also contain provisions for the examination of women
in cases of contested delivery, or suspected infanticide;[40] for the
regulation of the sale of poisons;[41] for the detection and punishment
of malpractice;[42] and for examination into the mental condition in
cases of suicide and of crime.[43]

An early work on the practice of criminal law, based on the Caroline
Code, was published by the Flemish jurist, Josse de Damhouder, in 1554.
It contains a chapter treating of the lethality of wounds, which should
be determined by expert physicians and surgeons,[44] and describes
the course which is to be pursued in the judicial examination of dead
bodies. This is probably the earliest printed book (other than the laws
themselves) containing reference to medico-legal examinations,[45] and
antedates the writings of physicians upon the subject.

Although it was only in 1670 that the Ordinances of Louis XIV. gave
to France a uniform criminal code, medico-legal reports were made by
physicians and surgeons to the courts more than a century before.
Indeed, the earliest medico-legal work written by a physician[46] is
the 27th book of the Œuvres d’Ambroise Paré, first printed in 1575,
in which he directs the forms in which judicial reports shall be
made in various medico-legal cases.[47] During the remainder of the
sixteenth century France produced but three treatises on medico-legal
subjects.[48] One of these, written by the jurist A. Hotman, distinctly
mentions the employment of physicians to determine questions of fact.

In Italy works on medical jurisprudence were published at the close of
the sixteenth and beginning of the seventeenth century. The earliest
of these was a chapter of Codronchius, treating of the “method of
testifying in medical cases,” in 1597.[49] At about the same time, but
certainly later, appeared the work of Fortunatus Fidelis, to whom the
honor of being the first writer on medical jurisprudence is given by
many.[50]

The great work of Paulus Zacchias, physician to Pope Innocent X., was
first printed at Rome, 1621-35. This medico-legal classic contains
in the first two volumes the “_Quæstiones_” and in the third the
decisions of the Roman Rota. It treats of every branch of medico-legal
science, and discusses physiological questions of legal interest,
besides dealing with questions such as the infliction of torture and
miracles.[51]

Although the “Quæstiones Medico-legales” of Zacchias was the first
systematic work upon medical jurisprudence, his countrymen in
succeeding centuries have contributed but little to this science. It is
only during the latter part of the present century that Italians have
again become prominent in medico-legal literature.

In France legal medicine progressed but little from the time of Paré to
the latter part of the eighteenth century. Several treatises appeared,
being chiefly upon legitimacy and kindred subjects,[52] with a few
treating of reports, signs of death, etc.[53]

Toward the end of the eighteenth century the labors of Louis, Petit,
Chaussier, and Fodéré elevated legal medicine to the rank of a science.
The investigations of Louis (Ant. L.) were numerous and important in
this as in other subjects,[54] and the “_causes célébres_” contain
reports of many trials in which he threw light upon doubtful medical
questions.[55] Antoine Petit, a contemporary of Louis, contributed an
extensive work on the duration of pregnancy as affecting legitimacy.[56]

Somewhat later Fr. B. Chaussier, between 1785 and 1828, published
at Dijon a number of treatises on infanticide, viability, surgical
malpractice, etc.[57] Fodéré, a Savoyard, was the first to publish a
systematic treatise on medical jurisprudence in France, which was first
printed in 1798 and in a much enlarged form in 1813.[58] This last
edition is an exhaustive treatise upon all branches of legal medicine
and public hygiene, and won for its author the appointment as Professor
of Forensic Medicine in the University of Strassburg.

At about the same period appeared the works of Mahon[59] and of
Belloc,[60] both of which went through three editions in ten years, and
those of Biessy.[61]

The most industrious and original of French professors of legal
medicine was Orfila. A native of Minorca, he graduated in medicine
at Paris in 1811, and devoting himself to chemical and toxicological
investigations, published the first edition of his “Traité des
Poisons” in 1814. This work, which may be regarded as the foundation
of experimental and forensic toxicology, went through five editions
to 1852, and was translated into several foreign languages. The first
edition of his “Leçons de Médecine légale” appeared in 1821, and the
fourth in 1848. Besides these Orfila published a work on the treatment
of asphyxia and a great number of papers on medico-legal subjects,
principally in the _Annales d’Hygiène_, of which he was one of the
founders with Andral, Esquirol, Leuret, and Devergie. Orfila occupied
the chair of chemistry and medical jurisprudence in the University
of Paris for upward of thirty years, and was employed as expert in
innumerable cases before the courts.

Contemporaneous with Orfila, and almost as prominent, was Devergie, the
first edition of whose “Médecine légale,” in three volumes, appeared in
1836, and the third in 1852.

In 1820 the first edition of the Manual of Briand and Brosson was
published. This work, the tenth edition of which was published in 1879,
is the first in which a jurist was associated with a physician in the
authorship,[62] and is one of five of which one of the authors is a
lawyer.[63]

Special treatises on the medico-legal relations of insanity were
published by Georget (1821), Falvet (1828), Esquirol (1838), and Marc
(1840), and on midwifery by Capuron (1821).

Tardieu, Professor of Legal Medicine in the University of Paris
(1861-79), published a most important series of monographs on hygienic
and medico-legal subjects,[64] besides many papers, principally in the
_Annales d’Hygiène_, _etc._, and testified before the courts in many
“_causes célébres_.”

The first work of medico-legal interest to appear in Germany was the
“Medicus-Politicus” of Rodericus à Castro, a Portuguese Jew living in
Hamburg, printed in 1614, which deals principally with medical ethics
and the relations of physicians, but contains chapters on simulated
diseases, poisoning, wounds, drowning, and virginity.[65]

It was only toward the end of the seventeenth century that the
subject was scientifically treated, and during the latter part of
the seventeenth century and the beginning of the eighteenth great
progress was made in the development of forensic medicine in Germany.
Johannes Bohn, one of the originators of the experimental method of
investigation in physiological chemistry and physics, at the University
of Leipzig, was also one of the earliest German contributors to the
literature of legal medicine. Besides smaller works he published two
noteworthy treatises: in 1689 a work on the examination of wounds
and the distinction between ante-mortem and post-mortem wounds, and
between death by injury, strangulation, and drowning.[66] In 1704 a
work giving rules for the conduct of physicians in attending the sick
and in giving evidence in the courts.[67] At about the same period M.
B. Valentini, professor in the University of Giessen, published three
important works, containing collections of medico-legal cases, and of
the opinions and decisions of previous writers.[68] Another extensive
collection of cases and decisions was published in 1706 by J. F.
Zittmann, from a MS. left by Professor C. J. Lange, of the University
of Leipzig;[69] and still another by J. S. Hasenest[70] appeared in
1755.

During the latter part of the eighteenth century, the Germans
cultivated legal medicine assiduously, and a great number of works upon
the subject were published. Among these may be mentioned those of M.
Alberti, professor at the University of Halle;[71] H. F. Teichmeyer,
of the University of Jena;[72] A. O. Gölicke, of the universities of
Halle and Duisburg, who was the first to prepare a bibliography of
the subject;[73] J. F. Fasel (Faselius), professor at Jena;[74] J. E.
Hebenstreit and C. S. Ludwig, professors at Leipzig;[75] C. F. Daniel,
of Halle;[76] J. D. Metzger, professor at Königsberg, the author of
a number of works, one of which, a compendium, was translated into
several other languages;[77] J. V. Müller, of Frankfurt;[78] J. C. T.
Schlegel, who collected a series of more than forty dissertations by
various writers;[79] M. M. Sikora, of Prague;[80] J. J. von Plenck,
professor in Vienna, who published a work on forensic medicine and
one on toxicology;[81] K. F. Uden, subsequently professor in St.
Petersburg, who was the first to publish a periodical journal devoted
to legal medicine, which was afterward continued by J. F. Pyl at
Stendal;[82] and J. C. Fahner.[83]

At this period compends for students were published in Germany, which
indicate by their number the extent to which this science was the
subject of study. Among these those of Ludwig (1765), Kannegieser
(1768), von Plenck (1781), Frenzel (1791), Loder (1791), Amemann
(1793), Metzger (1800), and Roose may be mentioned.

The Germans of the present century have maintained the pre-eminence
in legal medicine achieved by their forefathers. Among a great
number of investigators and writers a few may be mentioned: C. F. L.
Wildberg, professor at Rostock, was a most prolific writer, edited
a journal devoted to state medicine, and contributed a valuable
bibliography of the subject;[84] A. F. Hecker, professor at Erfurth
and afterward at Berlin, and J. H. Kopp each edited and contributed
extensively to a medico-legal journal.[85] A much more important
periodical was established in 1821 by Adolph Henke, professor in
Berlin, and was continuously published until 1864. Henke also wrote
a great number of articles and a text-book on legal medicine.[86]
Jos. Bernt, professor at Vienna, published a collection of cases, a
systematic treatise, and a number of monographs,[87] as well as the
MS. work left by his predecessor in the chair, F. B. Vietz. A handbook
containing an excellent history of medico-legal science was published
by L. J. C. Mende, professor at Griefswald,[88] who also contributed
a number of monographs, chiefly on obstetrical subjects. K. W. N.
Wagner contributed but little to the literature of the subject, but
it was chiefly by his efforts, while professor in the University
of Berlin, that a department for instruction in state medicine was
established there in 1832. A. H. Nicolai, also professor at Berlin,
published a handbook[89] besides numerous articles in the journals.
F. J. Siebenhaar published an encyclopædia of legal medicine, and
in 1842 established a journal devoted to state medicine, which in
its continuations was published until 1872.[90] J. B. Friedreich,
professor at Erlangen, after editing a journal devoted to state
medicine from 1844 to 1849, established one of the most important of
current medico-legal periodicals in 1850,[91] to both of which he
was a frequent contributor until his death in 1862. Ludwig Choulant,
professor at Dresden, and more widely known as the author of important
contributions to the history of medicine, published two series of
reports of medico-legal investigations.[92]

The foremost forensic physician of this period in Germany was
unquestionably John Ludwig Casper, professor in the University of
Berlin and “forensic physician” (gerichtlicher Physicus) to that city,
who greatly extended the department established in the university
under Wagner. He made innumerable investigations, some of which are
preserved in several collections of cases,[93] others in his classic
Handbook,[94] and still others in the periodical which he established
in 1852, and which is now the most important current medico-legal
journal.[95]

It is necessary in this place to make mention of one work by living
authors, as its appearance marked a new departure in medico-legal
literature, and as in it the fact that forensic medicine extends over
so wide a field of inquiry as to require treatment at the hands of
specialists was first recognized. To Josef von Maschka, professor in
the University of Prague, the credit is due of having been the first
to produce, with the collaboration of twenty-two colleagues, a truly
systematic work on modern forensic medicine.[96]

English works upon this subject did not exist prior to the present
century,[97] although physicians were employed by the courts to
determine medical questions of fact at a much earlier date. Paris and
Fonblanque, in the third Appendix of their “Medical Jurisprudence,”
give the text of reports by the Colleges of Physicians of London and
of Edinburgh concerning the cause of death as early as 1632 and 1687
respectively.[98]

Lectures on medical jurisprudence were given at the University of
Edinburgh by A. Duncan, Sr., at least as early as 1792.[99] The title
of Professor of Medical Jurisprudence in a British university was
conferred for the first time, however, upon A. Duncan, Jr., at the
University of Edinburgh in 1806.[100]

The first English work on medical jurisprudence worthy of consideration
is the medical classic known as Percival’s “Medical Ethics.” This
was first published in 1803, and contains in its fourth chapter an
admirable epitome of legal medicine.[101] A more elaborate work, based
very largely, however, upon the writings of continental authors,
was published by G. E. Male in 1816.[102] In 1821 Professor John
Gordon Smith published the first systematic treatise on forensic
medicine,[103] and was one of the first in Great Britain to show the
importance of the subject.

Two years later, in 1823, appeared the elaborate and scholarly work
of Dr. Paris and Mr. Fonblanque, the first in the English language
in whose authorship members of the medical and legal professions
were associated.[104] In 1831, Prof. Michael Ryan published the
first edition of his “Manual of Medical Jurisprudence” from the
memoranda of his lectures on the subject in the Westminster School of
Medicine.[105] A similar work was published by Professor T. S. Traill,
of the University of Edinburgh, in 1836.[106] The awakened interest in
medico-legal subjects among the medical profession during the decade
1830-40 is evidenced by the publication in the medical journals of
the lectures of A. Amos, in 1830-31; of A. T. Thomson, at the London
University, in 1834-35; of H. Graham, at Westminster Hospital, in
1835; of W. Cummin, at the Aldersgate Street School, in 1836-37; and
of T. Southwood Smith, at the Webb Street Theatre of Anatomy, in
1837-38.[107]

Among the noteworthy contributions to the science previous to 1850
are the writings of Dease (1808), Haslam (1817),[108] Christison, the
successor of Professor Duncan in the University of Edinburgh, and best
known as a toxicologist, Forsyth (1829),[109] Chitty (1834),[110]
Watson (1837),[111] Brady (1839),[112] Skae (1840),[113] Pagan
(1840),[114] and Sampson (1841).[115]

In 1836, Dr. Alfred Swaine Taylor (b. 1806, d. 1880), the first
Professor of Medical Jurisprudence in Guy’s Hospital, published his
“Elements of Medical Jurisprudence.” This, the most important work upon
the subject in the English language, is now in its twelfth English
and eleventh American edition. During forty years of devotion to
forensic medicine Dr. Taylor also contributed other important works and
numerous papers, published for the most part in the Reports of Guy’s
Hospital.[116] In 1844, Dr. Wm. A. Guy, Professor of Forensic Medicine
in King’s College, published the first edition of his excellent
work.[117] In 1858, Fr. Ogston, Professor of Medical Jurisprudence
in the University of Aberdeen, published a syllabus and subsequently
(1878) a complete report of his lectures.[118] In 1882, C. M. Tidy,
Professor of Chemistry and Forensic Medicine in the London Hospital,
who had previously (1877) been associated with W. B. Woodman in the
authorship of a valuable handbook, began the publication of a more
extended work, which was interrupted by his death in 1892.[119]

The first Spanish work on legal medicine was that of Juan Fernandez
del Valles, printed in 1796-97.[120] No further contribution to
medico-legal literature was furnished by Spain until the appearance in
1834 of the work of Peiro and Rodrigo, which went through four editions
in ten years.[121] Ten years later, in 1844, Pedro Mata, Professor of
Legal Medicine and Toxicology at Madrid, published the first edition of
a work, which in the development of its subsequent editions, has become
the most important on the subject in the Spanish language.[122]

The first Portuguese medico-legal treatise was that of Jose Ferreira
Borjes, first printed at Paris in 1832.[123]

A posthumously published report of the lectures of Albrecht von Haller
was the earliest Swiss work on forensic medicine.[124]

In Sweden the earliest medico-legal publication was a comprehensive
treatise by Jonas Kiernander, in 1776,[125] which was followed in 1783
by a translation of Hebenstreit, by R. Martin. The voluminous writings
of the brothers Wistrand (A. T. and A. H.), including a handbook,
were published at Stockholm, between 1836 and 1871. Between 1846 and
1873, several articles upon medico-legal subjects were published at
Helsingfors, in Finland, by E. J. Bonsdorff, O. E. Dahl, and J. A.
Estlander. In 1838 Skielderup[126] published his lectures on legal
medicine, delivered at Christiania, and Orlamundt[127] published
a handbook at Copenhagen in 1843. The earliest recognition of
medico-legal science in Russia was in the lectures of Balk,[128] begun
in 1802 at the then newly founded University of Dorpat.

Although dissertations upon subjects of medico-legal interest were
published at the University of Leyden as early as the middle of the
seventeenth century,[129] and the works of Pineau,[130] Zacchias,[131]
Ludwig,[132] von Plenk,[133] and Metzger[134] were printed in Holland,
either in Latin or in the vernacular, no original systematic work on
legal medicine in the Dutch language has yet appeared.

The only Belgian contribution to the literature of forensic medicine,
other than articles in the journals, is a text-book by A. Dambre, first
published at Ghent in 1859.[135]

Two medico-legal works have been printed in the Japanese language, one
a report of the lectures of Professor Ernst Tiegel, at the University
of Tokio,[136] the other a treatise by Katayama.[137]

In the United States the development of forensic medicine has kept pace
with that in the mother country. In an introductory address delivered
at the University of Pennsylvania in 1810, the distinguished Dr.
Benjamin Rush dwelt eloquently upon the importance of the subject.[138]
In 1813, Dr. James S. Stringham was appointed Professor of Medical
Jurisprudence in the College of Physicians and Surgeons of New
York, and a syllabus of his lectures was published in the following
year.[139] At the same period (1812-13) Dr. Charles Caldwell delivered
a course of lectures on medical jurisprudence in the University of
Pennsylvania.[140] In 1815, Dr. T. R. Beck was appointed Lecturer on
Medical Jurisprudence in the College of Physicians and Surgeons of the
Western District of the State of New York; and soon after Dr. Walter
Charming was appointed Professor of Midwifery and Medical Jurisprudence
in Harvard University. In 1823, Dr. Williams, in the Berkshire Medical
Institute, and Dr. Hale, of Boston, each lectured upon the subject.[141]

In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylvania, and at
that time Professor of Chemistry and Mineralogy in the University of
Pennsylvania, reprinted, with notes and additions, the English works
of Farr, Dease, Male, and Haslam.[142] The works of Ryan, Chitty,
Traill, and Guy were also reprinted in this country shortly after their
publication in England.

In 1823, Dr. Theodric Romeyn Beck published at Albany the first edition
of a treatise as admirable for scholarly elegance of diction as for
profound scientific research. This remarkable work, _facile princeps_
among English works on legal medicine, has had twelve American and
English editions, and has been translated into German and Swedish.[143]

Papers upon medico-legal subjects or reports of lectures were published
by J. W. Francis,[144] J. Webster,[145] R. E. Griffith,[146] R.
Dunglison,[147] J. Bell,[148] and S. W. Williams[149] between 1823
and 1835. In 1840, Amos Dean, Professor of Medical Jurisprudence at
the Albany Medical College, published a medico-legal work, followed
by another in 1854, which with the later work of Elwell are the only
treatises on forensic medicine upon the title-pages of which no
physician’s name appears.[150]

Numerous papers and tracts upon medico-legal subjects were published by
J. J. Allen, T. D. Mitchell, H. Howard, D. H. Storer, J. S. Sprague,
J. S. Mulford, J. F. Townsend, and A. K. Taylor between 1840 and 1855.
In the latter year appeared the first edition of the admirable work of
Francis Wharton and Dr. Moreton Stillé, the first American product of
the collaboration of members of the two professions, now in its fourth
edition.[151]

Between 1855 and 1860 no systematic treatises on legal medicine were
published, although the medical journals contained numerous articles
bearing upon the subject. In 1860 the first edition of a treatise
written from the legal aspect was published by J. J. Elwell.[152] In
1869 Dr. J. Ordronaux, recently deceased, widely known as a teacher of
legal medicine and a graduate in law as well as in medicine, published
a treatise which has been extensively used as a text-book.[153] At the
present time the great number and variety of articles published in
the medical and legal journals, bearing upon every branch of forensic
medicine and of medical jurisprudence, and written for the most part
by specialists, is evidence of the assiduity with which the science is
cultivated.

The wide appreciation of the importance of medico-legal science in
the United States is also indicated by the fact that at the present
time there are but few medical schools in which the subject is not
taught. To ascertain the extent of medico-legal instruction at the
present time, a circular of inquiry was sent to the deans of 124
medical schools and of 56 law schools in the United States and British
provinces. Answers were received from 103 medical colleges. Of these
only 3 are without a teacher of “medical jurisprudence.” In 38 the
teacher is a physician, in 50 he is a lawyer, in 5 he is a graduate
in both professions, and 3 have two teachers, one a lawyer, the
other a physician. The average number of lectures given is 21, and
the average in those schools in which the teacher is a lawyer, and
therefore presumably teaches only medical jurisprudence, is 15. The
medico-legal relations of their subjects are taught in their lectures
by the neurologist in 62 schools, by the surgeon in 66, by the
obstetrician in 69, and by the chemist (toxicology) in 91. It appears
from these reports that not only is the importance of medico-legal
science appreciated, but that in the majority of our medical schools
the distinction between medical jurisprudence and forensic medicine
is recognized in the fact that the instructor is a lawyer, who
presumably teaches medical jurisprudence, while the different branches
of forensic medicine and toxicology are taught by the specialists
most competent to deal with them. Every practising physician requires
thorough instruction in medical jurisprudence, which, being strictly
legal, is best taught by one whose profession is the law. The general
practitioner only requires so much knowledge of the different branches
of forensic medicine as will enable him to intelligently fulfil his
obligations in such medico-legal cases as will be forced upon him as
results of his ordinary practice. He can become a medical expert only
by a particular study of and a large experience in some particular
branch of the subject.

In our law schools the teaching of medico-legal science is not as
general as in schools of medicine. Of 35 law schools, only 10 have
professors of medical jurisprudence. Of these 6 are lawyers, 1 is a
physician, 2 are graduates in both professions, and 1 is a doctor of
divinity.

In this work the existence of specialists in the various branches
of medico-legal science has been recognized for the first time in a
treatise in the English language. Each branch has been assigned to
a specialist in that subject, or at least to one who has made it a
particular study.

In the arrangement of the matter, the primary division into the three
sciences of medical jurisprudence, forensic medicine, and toxicology
has been adopted. The division of pure medical jurisprudence is
contained in the present volume, while the legal aspects of neurology,
obstetrics, etc., will be treated of in future volumes along with the
subjects to which they relate. In the division of forensic medicine the
classification of Casper has been followed: _i.e._, _Thanatological_;
including those branches in which the subject of inquiry is a dead body
(contained in the present volume). _Bio-thanatological_; relating to
questions concerning both dead bodies and living persons (in the second
volume). _Biological_; relating to living persons (in the second and
third volumes). The applications of the microscope to forensic medicine
will be treated of in the second volume. The fourth volume will contain
the division relating to toxicology.

  R. A. W.



MEDICAL JURISPRUDENCE.



  THE LEGAL RELATIONS

  OF

  PHYSICIANS AND SURGEONS,

  INCLUDING

  THEIR ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND
  SURGERY; THEIR LEGAL DUTIES AND OBLIGATIONS; THEIR RIGHT
  TO COMPENSATION; THEIR PRIVILEGES AND DUTIES WHEN
  SUMMONED AS WITNESSES IN COURTS OF JUSTICE,
  AND THEIR LIABILITY FOR MALPRACTICE.

  BY

  TRACY C. BECKER, A.B., LL.B.,

  _Counsellor-at-Law; Professor of Criminal Law and Medical
  Jurisprudence in the Law  Department of the University of Buffalo;
  Chairman Executive Committee New York State Bar Association, etc._



LEGAL STATUS OF PHYSICIANS.



CHAPTER I.

OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY.


LEGAL DEFINITION AND HISTORY OF THE TERMS PHYSICIAN AND SURGEON.

AT common law the right to administer drugs or medicines or to perform
surgical operations was free to all. And such was the rule of the
Roman civil law. But the importance of prescribing certain educational
qualifications for those who made such practices their means of gaining
a livelihood soon became apparent, and as early as the year 1422,
during the reign of Henry the Fifth in England, an act of Parliament
was adopted forbidding any one, under a penalty of both fine and
imprisonment, from “using the mysterie of fysyck unless he hath studied
it in some university and is at least a batchellor of science.”

As a result of this and other statutory regulations, a class of
professional men grew up, who were called “physicians,” because they
professed to have the qualifications required by such legal regulations
to wisely prescribe drugs and medicines for the cure of diseases.
A chirurgeon or surgeon—Latin, chirurgus; Greek, _χειρουργος_,
compounded of _χειρ_, the hand, and _ἐργειν_, to work—as the
derivation of the word shows, was one who professed to cure disease or
injuries by manual treatment and appliances.

It would be more interesting than profitable to trace the history
of these terms, and of the professions of medicine and surgery from
the early times, when the clergy administered healing to the body as
well as to the soul, and when barbers were generally surgeons, and
blood-letting by the knife-blade and the use of leeches caused the
common application of the term “leech” to those who practised surgery.

_Definition._—For the purposes of this treatise, however, it will
be sufficient to define the term “physician,” as meaning any one who
professes to have the qualifications required by law to practise
the administration of drugs and medicines, and the term “surgeon,”
as meaning any one who professes to have the like qualifications to
perform surgical operations, for the cure of the sick or injured.

For a list of the early statutes of England relating to the practice of
medicine the reader may consult Ordronaux’ “Jurisprudence of Medicine,”
p. 5, note 2.

The present statutory regulations throughout the United States and in
England and Canada will be more particularly referred to and synopsized
hereafter in this volume.



CHAPTER II.

ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE AND SURGERY.


_Now Generally Regulated by Statute._—In nearly all of the United
States, as well as in England, France, Germany, and other civilized and
intelligent communities, the legal right to practise the administration
of drugs and medicines, or to perform operations in surgery for the
purpose of curing diseases or injuries, has for many years been the
object of statutory legislation. The necessity and propriety of
regulating by law such practices is generally conceded. It is manifest
to all that a person engaging in the practice of medicine or surgery
as a profession is holding himself out to the world, and especially to
his patients, as one qualified by education and experience to possess
more than ordinary skill and ability to deal with the great problems
of health and life. He professes to the world that he is competent and
qualified to enter into the closest and most confidential relations
with the sick and afflicted, and that he is a fit and proper person to
be permitted freely, and at all hours and all seasons, to enter the
homes, the family circle, and the private chamber of persons suffering
from disease or injury. All this he professes and does upon his own
account, and for his own profit.

=Statutory Regulation of the Right to Practise, Constitutional.=—The
exercise by the States of these statutory powers is upheld as a valid
exercise of the “police power,” to protect the health of the community.
When the constitutionality of such enactments has been questioned,
it has been attacked upon the alleged ground that the statutes under
question unjustly discriminated in favor of one class of citizens and
against another class; and as depriving those already engaged in the
practice of medicine or surgery of “their property without due process
of law.” State _v._ Pennoyer, 18 Atl. Rep., 878; _ex parte_ Spinney,
10 Nev., 323; People _v._ Fulda, 52 Hun. (N. Y.), 65-67; Brown _v._
People, 11 Colo., 109.

_Opinion of United States Supreme Court._—This subject has been
carefully considered by the United States Supreme Court in a recent
case, and the broad extent of the legislative powers of the States to
regulate such matters clearly and fully declared. Dent _v._ West Va.
(129 U. S., 114). The Court say—pp. 121 _et seq._—Mr. Justice Field
delivering the opinion, in which all the other Justices concur: “The
unconstitutionality asserted consists in its [the statutes] alleged
conflict with the clause of the Fourteenth Amendment, which declares
that no State shall deprive any person of life, liberty, or property,
without due process of law; the denial to the defendant of the right to
practise his profession, without the certificate required, constituting
the deprivation of his vested right and estate in his profession, which
he had previously acquired.

“It is undoubtedly the right of every citizen of the United States
to follow any lawful calling, business, or profession he may choose,
subject only to such restrictions as are imposed upon all persons
of like age, sex, and condition. This right may in many respects be
considered as a distinguishing feature of our republican institutions.
Here all vocations are open to every one on like conditions. All may
be pursued as sources of livelihood, some requiring years of study and
great learning for their successful prosecution. The interest, or,
as it is sometimes termed, the estate acquired in them, that is, the
right to continue their prosecution, is often of great value to the
possessors, and cannot be arbitrarily taken from them, any more than
their real or personal property can be thus taken. But there is no
arbitrary deprivation of such right where its exercise is not permitted
because of a failure to comply with conditions imposed by the State
for the protection of society. The power of the State to provide for
the general welfare of its people authorizes it to prescribe all such
regulations as, in its judgment, will secure or tend to secure them
against the consequences of ignorance and incapacity as well as of
deception and fraud. As one means to this end it has been the practice
of different States, from time immemorial, to exact in many pursuits
a certain degree of skill and learning upon which the community may
confidently rely, their possession being generally ascertained upon
an examination of the parties by competent persons, or inferred from
a certificate to them in the form of a diploma or license from an
institution established for instruction on the subjects, scientific
and otherwise, with which such pursuits have to deal. The nature and
extent of the qualifications required must depend primarily upon the
judgment of the State as to their necessity. If they are appropriate
to the calling or profession, and attainable by reasonable study or
application, no objection to their validity can be raised because of
their stringency or difficulty. It is only when they have no relation
to such calling or profession, or are unattainable by such reasonable
study and application, that they can operate to deprive one of his
right to pursue a lawful vocation.

“Few professions require more careful preparation by one who seeks
to enter it than that of medicine. It has to deal with all those
subtle and mysterious influences upon which health and life depend,
and requires not only a knowledge of the properties of vegetable and
mineral substances, but of the human body in all its complicated
parts, and their relation to each other, as well as their influence
upon the mind. The physician must be able to detect readily the
presence of disease, and prescribe appropriate remedies for its
removal. Every one may have occasion to consult him, but comparatively
few can judge of the qualifications of learning and skill which he
possesses. Reliance must be placed upon the assurance given by his
license, issued by an authority competent to judge in that respect,
that he possesses the requisite qualifications. Due consideration,
therefore, for the protection of society, may well induce the State to
exclude from practice those who have not such a license, or who are
found upon examination not to be fully qualified. The same reasons
which control in imposing conditions, upon compliance with which the
physician is allowed to practise in the first instance, may call for
further conditions as new modes of treating disease are discovered, or
a more thorough acquaintance is obtained of the remedial properties
of vegetable and mineral substances, or a more accurate knowledge
is acquired of the human system and of the agencies by which it is
affected. It would not be deemed a matter for serious discussion that
a knowledge of the new acquisitions of the profession, as it from time
to time advances in its attainments for the relief of the sick and
suffering, should be required for continuance in its practice, but
for the earnestness with which the plaintiff in error insists that,
by being compelled to obtain the certificate required, and prevented
from continuing in his practice without it, he is deprived of his right
and estate in his profession without due process of law. We perceive
nothing in the statute which indicates an intention of the legislature
to deprive one of any of his rights. No one has a right to practise
medicine without having the necessary qualifications of learning and
skill; and the statute only requires that whoever assumes, by offering
to the community his services as a physician, that he possesses such
learning and skill, shall present evidence of it by a certificate or
license from a body designated by the State as competent to judge of
his qualifications. As we have said on more than one occasion, it may
be difficult, if not impossible, to give to the terms ‘due process
of law’ a definition which will embrace every permissible exertion
of power affecting private rights and exclude such as are forbidden.
They come to us from the law of England, from which country our
jurisprudence is to a great extent derived, and their requirement
was there designed to secure the subject against the arbitrary
action of the crown and place him under the protection of the law.
They were deemed to be equivalent to ‘the law of the land.’ In this
country the requirement is intended to have a similar effect against
legislative power, that is, to secure the citizen against any arbitrary
deprivation of his rights, whether relating to his life, his liberty,
or his property. Legislation must necessarily vary with the different
objects upon which it is designed to operate. It is sufficient, for
the purposes of this case, to say that legislation is not open to the
charge of depriving one of his rights without due process of law, if
it be general in its operation upon the subjects to which it relates,
and is enforceable in the usual modes established in the administration
of government with respect to kindred matters: that is, by process or
proceedings adapted to the nature of the case.”


EARLY COMMON-LAW RULE CONCERNING SUITS BY PHYSICIANS.

The common-law rule was that the physician could not sue and recover
for his services, though he might for the medicines he furnished. The
theory of the law followed the etiquette of his profession and forbade
him from making a specific contract for pay for his services, and
obliged him to receive what his patient chose to give him, which was
called his “_honorarium_.”

_The Early Common-Law Rule No Longer in Force._—As time went on this
theory vanished from the law. For many years it has lost its place
among the rules of professional etiquette. In its stead statutory
provisions have been adopted which forbid a recovery for services
performed by persons not legally authorized to practise. The right to
contract with the patient or with those who employ the medical man, and
his remedies to enforce such contracts, will be treated of hereafter.

_Statutory Regulations in New York State._—Most of the States of the
United States have enacted statutory regulations prescribing in one
form or another the necessary qualifications which entitle a physician
or surgeon to practise, and prescribing penalties for practising
without having complied with such statutory requirements. In the State
of New York such matters were regulated for the first time by statute
in 1787. This was followed by a general enactment on the subject of
the organization of county medical societies, and of State medical
societies having boards of censors, to whom was committed the power to
examine applicants for license to practise, and of issuing licenses
(Laws of 1813, p. 94). This law remained in force, with certain
modifications, until 1844, when all acts regulating the practice
of medicine and surgery were repealed. A history of the statutory
regulations in New York State up to the act of 1844 on this subject
will be found in the case of Bailey _v._ Mogg, 4 Denio, 60.[154]

At the time of the passage of the act of 1813, and for many years
afterward, nearly all of the physicians in New York State practised
in accordance with the theories and precepts of what is now called
the regular or allopathic school of medicine. That act provided that
the physicians in the respective counties of the State of New York
should meet in the respective counties and organize county medical
societies. As a consequence of the fact that the physicians of that day
were chiefly of the allopathic school, they necessarily obtained the
control of the county medical societies and State medical societies.
Hence it became difficult, if not impossible, for physicians who
wished to practise upon other theories and tenets than those obtaining
in that school, to obtain licenses to do so. With the growth of the
homœopathic school of medicine and the eclectic school of medicine,
came applications to the legislature asking for those practising under
those schools the same rights and privileges of organizing county and
State societies as had been extended to physicians generally by the
act of 1813; so that in 1857, by Chapter 384, the legislature of New
York State enacted that the homœopathic physicians might meet in their
respective counties and organize county medical societies, with boards
of censors having the same powers and privileges which were granted by
the act of 1813; and by other laws similar privileges were granted to
the so-called eclectic school. After the passage of the act of 1844,
down to about 1874, as hereinbefore stated, there was no limitation
upon the right to practise medicine or surgery in this State.

The inharmonious and injurious effect of such policy of the State
becoming manifest, the legislature, by Chapter 436 of Laws of 1874,
required all persons desiring to practise medicine or surgery to
obtain a certificate as to their qualifications from the censors of
some one of these medical societies. By the Laws of 1880, Chapter 513,
additional and more extensive and particular provisions were made in
reference to this matter, and all the physicians then practising were
required, on or before the time limited in the act, to file with the
county clerks of their respective counties their licenses to practise
granted by the censors of their county medical societies, or a diploma
of some chartered school of medicine; and those persons who desired
to become licensed who were not in practice were likewise required to
obtain similar licenses or certificates and file the same. A diploma
of a chartered school or medical college was given the same effect as a
license issued by the censors.

_Recent Legislation in New York State._—The whole matter, however,
of licensing physicians to practise has, in the State of New York,
been recently regulated by Chapter 468, Laws of 1889, and 499 of 1890,
which have reference to the qualifications of persons becoming medical
students, and Chapter 507 of 1890, which gives to the Regents of the
University of the State of New York power to select boards of examiners
from persons nominated by each of the three State medical societies,
viz., the New York State Medical Society, Homœopathic Medical Society,
and Eclectic Medical Society. These boards prepare questions which are
to be approved by the State Board of Regents; examinations are held
in different parts of the State upon these questions, the examination
papers are certified to that one of these boards of examiners which
the student may elect, and that board in turn certifies whether or
not the examination has been successfully undergone; and upon its
certificate the Board of Regents licenses the student to practise, and
his examination papers are filed in the office of the Board of Regents
and become a matter of record. These provisions have been enlarged and
modified slightly by various statutes since enacted. They are all now
embodied in Chapter 601 of Laws of 1893. They will be found carefully
synopsized below.

_Penal Provisions in New York State._—The New York Penal Code, which
went into effect in 1882, enacted that a person practising medicine or
surgery, or pretending to be a physician or surgeon, without a license
or a diploma from some chartered school, should be deemed guilty of a
misdemeanor punishable by fine or imprisonment (Penal Code, Section
356); and the same statute, 357, made it a misdemeanor for a person,
whether licensed or not, to practise medicine or surgery, or do any
other act as a physician or surgeon, while intoxicated, by which the
life of any person is endangered or his health seriously affected.[155]

_Giving “Patented” Medicines No Exception._—At one time an attempt was
made to claim, that under the patent laws of the United States a person
had the right to administer patent medicines without being punishable
for practising without a license, but this doctrine was repudiated by
the courts. Thompson _v._ Staats, 15 Wend., 395; Jordan v. Overseers,
etc., 4 Ohio, 295.

_Courts may Compel Granting of License._—A person who is qualified
and complies with reasonable rules of a licensing body, can compel
such body to license him. This was held to be the law in the case of
The People _ex rel._ Bartlett _v._ The Medical Society of the County
of Erie, which is also an important authority in respect to a vexed
question of medical ethics. It appeared in that case that under the
general laws of New York in regard to the organization of medical
societies, a medical society had refused to receive as a member a
person otherwise qualified, because he had advertised in the public
prints a certain cure, including a mechanical appliance used in
treating throat troubles; it being forbidden by the code of ethics of
the American Medical Association, which the County Medical Society
had adopted as one of its by-laws, that a physician or surgeon should
advertise. The Court of Appeals of the State of New York held that this
constituted no defence to a proceeding instituted by such person to
obtain a mandamus compelling the society to admit him to membership, if
otherwise qualified.[156]

It has also been decided that a medical society had no right to make
a by-law establishing a fixed fee-bill, or tariff of charges, and
providing for the expulsion of a member charging at a different rate
than that prescribed. Such a by-law was declared unreasonable and void
in the case of People _v._ Medical Society of Erie County, 24 Barb.,
570.

The effect of these decisions was, so far as they affect the validity
of by-laws, attempted to be avoided in that State by Chapter 445 of
Laws of 1866, by which it is expressly enacted that the county medical
societies of the State of New York may make such rules and by-laws as
they see fit, “not inconsistent with the laws of said State, and may
enforce them by expulsion or other discipline.” It may be considered
doubtful whether this legislation can accomplish its purpose in the
case of the adoption of a by-law void as against public policy.

=No Particular Schools Recognized by the Courts.=—The general trend of
the decisions in all the States, whenever any questions in reference
to schools of medicine have been before our courts, is to avoid
recognizing any particular system or school. The theory of the New
York courts upon this subject is well expressed by the liberal-minded
and learned Judge Daly in the New York Court of Common Pleas, in the
case of Corsi _v._ Maretzek, 4 E. D. Smith, 1-5. In that case it was
claimed that a certificate of incapacity because of sickness, given
by a “homœopathic” physician to an opera-singer, was not binding. It
was argued that the employment of a “homœopathic” physician under the
contract did not fulfil a provision thereof which required the event of
the singer’s sickness to be certified to by “a doctor,” to be appointed
by the director.

The Court said: “The system pursued by the practitioner is immaterial.
The law has nothing to do with particular systems. Their relative
merit may become the subject of inquiry, when the skill or ability of
a practitioner in any given case is to be passed upon as a matter of
fact. But the law does not, and cannot, supply any positive rules for
the interpretation of medical science. It is not one of those certain
or exact sciences in which truths become established and fixed, but
is essentially progressive in its nature, enlarging with the growth
of human experience, and subject to those changes and revolutions
incident to any branch of human inquiry, the laws of which are not
fully ascertained. The labors of the anatomist, the physiologist, and
the chemist have contributed an immense storehouse of facts; but the
manner in which this knowledge is to be applied in the treatment and
cure of diseases has been, and will probably continue to be, open to
diversity of opinion. No one system of practice has been uniformly
followed, but physicians from the days of Hippocrates have been divided
into opposing sects and schools. The sects of the dogmatists and the
empirics divided the ancient world for centuries, until the rise of
the methodics, who, in their turn, gave way to innumerable sects.
Theories of practice, believed to be infallible in one age, have been
utterly rejected in another. For thirteen centuries Europe yielded
to the authority of Galen. He was implicitly followed—his practice
strictly pursued. Everything that seemed to conflict with his precepts
was rejected; and yet, in the revolutions of medical opinion, the
works of this undoubtedly great man were publicly burned by Paracelsus
and his disciples; and for centuries following, the medical world
was divided between the Galenists and the chemists, until a complete
ascendency over both was obtained by the sect of the Vitalists. This
state of things has been occasioned by the circumstance that medical
practitioners have often been more given to the formation of theories
upon the nature of disease and the mode of its treatment, than to
that careful observation and patient accumulation of facts, by which,
in other sciences, the phenomena of nature have been unravelled. I
am far from undervaluing the great benefits conferred upon mankind
by the study of medicine, and have no wish to minister to any vulgar
prejudice against a useful and learned profession, but it is not to be
overlooked that, as an art, it has been characterized, in a greater
degree, by fluctuations of opinion as to its principles and the mode
of its practice, than, perhaps, any other pursuit. That it has been
distinguished by the constant promulgation and explosion of theories,
that it has alternated between the advancement of new doctrines and
the revival of old ones, and that its professors in every age have
been noted for the tenacity with which they have clung to opinions,
and the unanimity with which they have resisted the introduction of
valuable discoveries. They still continue to disagree in respect to the
treatment of diseases as old as the human race; and at the present day,
when great advances have been made in all departments of knowledge, a
radical and fundamental difference divides the allopathist from the
followers of Hahnemann, to say nothing of those who believe in the
sovereign instrumentality of water.

“In fact, nothing comparatively is known of the philosophy of disease.
Its eradication or cure, where the result of human agency is, in
the great majority of instances, attributable rather to the careful
observation, judgment and experience of the particular practitioner,
than to the application of general or established methods available to
all. The popular axiom, that ‘doctors differ,’ is as true now as it
ever was, and as long as it continues to be so, it is impossible for
the law to recognize any class of practitioners, or the followers of
any particular system or method of treatment, as exclusively entitled
to be regarded as doctors. In adverting to the conflicting views
and differences of opinion, that exist and have ever existed in the
practice of the healing art, it is not to call in question the value
of learned, skilful and experienced physicians, but merely to show
the error of attempting, in the present state of medical science,
to recognize, as matter of law, any one system of practice, or of
declaring that the practitioner who follows a particular system is a
doctor, and that one who pursues a different method is not.” And see
also White _v._ Carroll, 42 N. Y., 161; Ordronaux’ “Jurisprudence of
Medicine,” 27.

This decision was prior to the statute of 1874 and the provisions of
the Penal Code before noted. Since those statutes, it is a misdemeanor
to practise except as permitted by the provisions of those statutes.


IN NEW YORK AND ELSEWHERE PRACTITIONER WITHOUT LICENSE CANNOT SUE AND
RECOVER FOR HIS FEES.

Since the passage of the New York Act of 1844 (Laws of 1844, p. 406),
there has been no precise statutory provision in that State prohibiting
in terms persons who practise physic or surgery without a license,
from suing to obtain a recovery for services performed. But this is of
little consequence, for, as we have already stated, so practising has
been declared to be a misdemeanor by the Penal Code of New York.

It is a well-settled principle that when any act is declared by statute
to be criminal, a contract calling for the performance of such an act
is illegal and void. The early English authorities on this point are
fully collated in Wheeler v. Russell (17 Metc., Mass., 258), and the
later English and American cases may be found in “American and English
Cyclopædia of Law,” title “Contracts,” Vol. III., p. 872 _et seq._; see
also _id._, Vol. XVIII., p. 440. Further consideration of the validity
of contracts for medical and surgical services will be had hereafter.
A full synopsis of the statutes of the different States regulating the
licensing of physicians and surgeons in force at the time this volume
goes to press will be placed in another chapter.

In a suit between a person who has performed medical and surgical
services, and one who employed him, it is said that the person
performing the services is presumed to have been licensed to do
so.[157] If the State sues for a penalty, a different rule is claimed
to prevail.[158]


HOW MAY A DIPLOMA OR LICENSE BE PROVED IN A COURT OF LAW?

It is evident from the foregoing considerations that in any proceedings
to punish for practising without license or legal authority, and in
actions to recover payment for professional services in the States and
countries, where a license or diploma of a regularly chartered school
or college is required by statute to entitle the person to practise, it
may become important to establish—first, the legal authority to grant
the license or diploma; and second, the genuineness of the license or
diploma produced. It frequently happens that the diploma or license has
been obtained in another State or country. Under the New York statutes,
especially the laws of 1880 and 1890, it was made necessary to file a
diploma. When it had been issued by a chartered school of another State
it must be certified to by some lawfully incorporated medical college
in this State, before being received for filing, or regarded by the law
as conferring upon its possessor the right to practise in that State.

As to the chief element of authenticity, namely, the legal
incorporation or authority of the body or institution granting the
diploma, it is clear that the act of incorporation itself would be
the best evidence of the incorporation of the college or school, and
a special act granting the power to license to a board of censors or
other official body or board would have to be produced to show the
right vested in that board or body to grant a license. In Georgia it
has been held (Hunter _v._ Blount, 27 Ga., 76), that to prove a diploma
given to a physician in another State, the existence of the college,
and the fact of its being a chartered institution, must be shown by
producing its act of incorporation.

In Thornton’s case (8 Term Rep., 303; same case, 3 Esp., 4), it was
held that the mere production in court of a diploma under the seal
of one of the universities, is not of itself evidence to show that
the person named in the diploma received the degree which the diploma
specified. In another and later case, however, Simpson _v._ Dunmore
(9 M. & W., 45; same case, 5 Jurist, 1012), it was held that it was
unnecessary for the person producing a license from the Apothecaries’
Company (an incorporated body) to practise as an apothecary, the seal
on which license was proved to be genuine, to give any additional
evidence of his identity with the person named in the license. The
reason for this doctrine is probably to be found in the well-known rule
of evidence, that identity of both christian name and family name, is
sufficient to raise a presumption of fact that the person bearing the
name is the identical person so named in any written instrument.

In Walmsley _v._ Abbott (1 K. & P., 309; same case, 5 D. & R., 62),
proof of the signature of one of the examiners who signed a certificate
of examination was held sufficient to warrant the acceptance of the
certificate in evidence in the first instance. In another case the
proof was that a person previously a stranger to the place went to a
town which was the seat of a university, and was told that a certain
building was the college, and that a certain person whom he saw there
was the librarian, and that this librarian showed him what purported
to be the seal of the university, and also a book which the librarian
stated was the book of acts or records of the university, and the seal
so shown him was compared with the seal of a certain diploma, the
genuineness of which was in question, and a copy was made from the said
book of acts, of an entry stating that the degree of M. D. had been
conferred by the university upon a person bearing the same name as that
in the diploma, and this proof was held a sufficient authentication of
the diploma, and of the act or authority of the university conferring
the degree. Collins case, 1 Addison & Ellis, 695; same case, 3 N. & M.,
703.[159]

_The Rule in Criminal Prosecutions._—We have seen above, that in a
criminal prosecution the burden is on the defendant to produce and
prove his license, but to warrant a conviction for practising without
a license it must be shown that the accused actually _practised_. It
is not enough to show that he is called by persons whom he attends
personally, that is, for whom he prescribes, or to whom he gives
medicine or whom he treats. There must be proof shown that he has done
this on his own account or for his own profit. But proof of a single
act connected with other circumstances, such as tend to show that he
held himself out as a physician, is enough. Burham _v._ State, 116
Ind., 112; Hill _v._ Bodie, 2 Stew. and P. (Ala.), 56; Pedgrift _v._
Schiller, 8 C. B., N. S., 200 (same case, 6 Jurist, N. S., 1341). And
if he simply practises “massage,” he does not fall within the acts
against practising medicine, even though he pretends to accomplish as
much good as could have been accomplished by a regular physician. Smith
_v._ Lane, 24 Hun, N. Y., 632. But see also Leech _v._ Ripon, 12 Cent.
L. J., 479; State _v._ Schultz, 11 Reporter, 701.[160]

_Falsely Pretending to be a Licensed Practitioner Generally a
Misdemeanor._—In some of the States, and in England, it is not
only made a misdemeanor to practise without a license, but falsely
pretending to be a licensed practitioner is made a misdemeanor. Such
is the provision of the Penal Code of New York heretofore cited. In
England such a statute has been somewhat strictly construed in the
case of Carpenter _v._ Hamilton (37 Law Times Rep., 157). In that
case it appeared that a person advertised himself as “John Hamilton,
M.D.,” of the “Metropolitan Medical College of New York.” It further
appeared that he was not registered as required by the law of England.
In a prosecution against him for falsely pretending to be a licensed
physician, the only proof of his practising being as just stated, an
acquittal was sustained by a majority of the court, which held that it
was a question of fact to be determined by a trial court whether or
not what he did was _pretending_ to be a physician authorized to treat
a patient. The Court intimated that the person simply pretended to be
what he really was, namely, a doctor of medicine of the Metropolitan
Medical College of New York.


STATE AND LOCAL BOARDS OF HEALTH—POWERS GOVERNED BY SPECIAL STATUTES.

In addition to the rules and regulations prescribed by the general
statutes, modern sanitary science has developed so broadly throughout
most of the civilized states and countries, that the different
governments have established state boards of health, and in many
instances local boards of health, the latter being limited in their
authority and operation to specific municipal divisions, to which
boards the government has committed the power to pass certain sanitary
rules and regulations, which rules and regulations may have an
important bearing upon and relation to the practice of medicine and
surgery. The jurisdiction and powers of these boards are to be found
in the special statutes creating them, and prescribing their powers
and duties, and cannot be treated of extensively here. They will be
considered further under the special subjects to which they relate.

_Physicians Bound to Report Contagious Cases and Not Liable for
Mistaken Report._—The duty to promptly report[161] to boards of
health every case of contagious or infectious disease is manifest.



CHAPTER III.

OF THE CONTRACTUAL RELATION BETWEEN PHYSICIAN AND PATIENT.


EMPLOYMENT AND RIGHTS IN REGARD TO COMPENSATION.

_Legal Character of the Employment._—Whatever may have been the
theories of the Roman civil law, and following it of the early English
common law, as to the character of the employment of physicians and
other professional men, it is now so well settled that the reciprocal
duties and obligations arising between physician and patient, or
attorney and client, and the like, are to be classed under and
governed by the law of contracts, that any extended discussion of
these theories is unnecessary here.[162] Mr. Ordronaux, in the second
chapter of his interesting work on the “Jurisprudence of Medicine,”
has considered them fully, and has quoted amply from the books of the
earlier and later text-writers, and from the expressions of the judges,
to show what these theories and rules were; and he and all later
authorities agree that the ancient notion, that professional services
are always gratuitous unless a special contract to pay for them is
made, has long been abandoned. He observes (pp. 13 and 14): “But in
our day the increase in the number of professional practitioners, and
their exclusive devotion to a special class of services as a means
of living, has essentially modified the practical character of the
contracts with their patrons. Although in legal acceptation a mandate,
yet from force of circumstances growing out of an altered state of
society, the _mandate_ is practically changed into a contract of hire
(_locatio operis_). _This doubtless reduces professions to the status
of artisanship_, and places them on a par with manual labor, conjoined
to the special skill of a particular calling. But it also simplifies
the contract, removes it from the category of innominate or imperfect
obligations, requiring the intervention of legal fictions to furnish
a means for their enforcement, and brings it within the pale of
consensual agreements based upon a sufficient consideration.”

The physician’s right to sue on contract in England was declared by
legislative enactment by Chap. 90 (Sec. 31), 21 and 22 Victoria. It has
never been denied in the United States. Adams _v._ Stephens, 26 Wend.,
451-455.

_Physicians’ and Surgeons’ Service in a Sense Voluntary._—Though it
is true, as in the case of many other doctrines of ancient law which
were formulated under social conditions far different from those which
prevail in modern times, that these rules and theories have long
since lost their potency as distinct rules governing actions at law,
nevertheless the legal aspect of the peculiar relationship between
physician and patient, is still affected by the idea that the service
on the part of the physician is voluntary—that is, the physician or
surgeon is not bound to come and perform services whenever or wherever
he is called. He is at liberty to refuse any and every patient who
attempts to employ him.

_Patients may Cease Employing at Any Time, unless there is a Contract
for a Certain Period._—And when he is employed, the patient may at any
moment discharge him, without incurring liability in damages, unless a
special contract has been entered into between them that the services
shall be rendered for a fixed period.

_Service once Begun by Physician must be Continued until Notice of
Intention to Cease is Given by Him._—If, however, the services are
begun, they must be continued until notice has been given of the
intention to discontinue them, and a reasonable time allowed the
patient to obtain the services of another person. The reasons for this
rule will be considered more fully below.

_Contracts either Express or Implied._—The contract between the
physician and patient may be an express one, that is, one in which all
the terms are agreed upon or _expressed_ between the parties, or it may
be what is called an implied contract, or one in which the patient, or
another person, simply calls on the physician or surgeon to come and
perform services, and neither party specifically stipulates or agrees
upon any of the terms of the employment.

_Express Contracts may Include any Stipulation Not Contrary to Public
Policy._—In the case of an express contract the agreement of the
parties settles and determines their mutual obligations, whether it
be written or merely verbal. But an express contract may also be made
in such a form that certain conditions are required to be performed
by the physician before he becomes entitled to any compensation for
his services. It may also embody an agreement that the patient shall
pay certain sums at certain times as the treatment goes on, or that no
other physicians shall be employed without the consent of the attending
physician, or if so employed that they shall be under the direction of
the attending physician.

Almost anything may be stipulated which is not contrary to public
policy, and a breach of any such stipulation entitles the aggrieved
party to rescind the contract and cease from performing it.[163]

_Qualifications of the Rule that Express Contracts may Include any
Stipulation._—Some qualifications of this rule of law must, however,
be noted. A breach by the patient of any one of these stipulations
would entitle the physician to treat the engagement as terminated like
any other contractual relation, and to bring his action for a recovery
for services rendered up to the time of the breach; but it is doubtful
whether he would have any action for damages for failure to permit him
to perform further services. This doubt arises from the legal doctrine,
hereinbefore referred to, that a patient is always at liberty to
dismiss his physician at any time without notice, and without assigning
any cause, which recognizes and grows out of the fact that if the trust
and confidence of the patient are destroyed, or impaired, no matter how
unreasonably or unjustly, the relation between them must thereafter
be unprofitable to both parties, and dangerous to the patient. On the
other hand there is little doubt but that whenever an express contract
is made by a physician to treat a patient for a certain length of time
for a particular disease or injury, the physician is not at liberty to
arbitrarily terminate that relation or his connection with the case,
unless he has in the contract specifically reserved the right so to do.

_Contracts Making Payment Contingent upon Successful Treatment
Valid._—The express contract between the parties may also contain a
stipulation, by which the physician makes his compensation contingent
upon his effecting a cure. Smith _v._ Hyde, 19 Vt., 54; Mack _v._
Kelly, 3 Ala., 387. See also Coughlin _v._ N. Y. Cen. R. R. Co., 71
N. Y., 443. In such a case, however, if the patient does not permit
the physician opportunity to treat him during the time named in the
contract, or for a reasonable time, if no specific time is fixed, the
courts would probably permit the physician to recover a reasonable
compensation for his services for the time during which he treated his
patient.

_Physician must Allow Reasonable Time to Supply his Place if he
Quits his Patient._—In any event, whether the contract be express
or implied, conditional or unconditional, the law through motives of
public policy, and with a just regard for the welfare of the sick and
injured, undoubtedly requires that if a physician has once taken charge
of a case, and determines to abandon it, he must give the patient
reasonable notice and reasonable opportunity to supply his place. If he
fails to do this he is liable in damages for the results that follow as
the proximate consequence of his abandoning the case.

_This Rule True even in the Case of a Charity Patient._—This is true,
it is believed, even when the patient is a charity patient, and the
services are gratuitous. Shiels _v._ Blackburn (1 H. Blacks., 159). For
any other rule less strict might entail the most serious consequences.
Ordronaux, “Jur. of Med.,” 13 and 14, citing Inst., lib. 3, 26, 11;
Pothier, “Du Contrat Mandat,” Chap. I., § 4.


ELEMENTS OF THE CONTRACT BETWEEN PHYSICIAN AND PATIENT.

_Duties of Physician._—When the relations between physician and
patient are not defined otherwise by express contract, the implied
contract is, and the law presumes, that the physician contracts, first,
to use the necessary care and attention; second, to use the necessary
skill; third, in case the physician furnishes his own medicines (and
the obligation to furnish them would probably be imposed, if it was the
custom of the school or class of physicians to which the particular
physician belonged to do so), that the medicines are proper and
suitable. As a corollary of these duties it necessarily follows, also,
that the physician contracts that the instruments or appliances which
he uses are free from taint or contagion, and are suitable and proper
for the uses to which they are put. Upon this theory an action could be
maintained against a physician for using impure vaccine.

_Duties of Patient._—The patient on his part contracts, first, to
give the physician information concerning the facts and circumstances
of the case, and full opportunity to treat him properly; second, to
obey his instructions and follow his directions, and, third, to pay
him the reasonable worth and value of his services. The different
branches of this contract are reciprocal. The failure of either party
to fulfil the obligation of any one of them which is imposed upon
him, would bar him of his remedies against the other party to recover
damages for any breach, or any proximate result of his breach, of
such obligations. The necessary care and attention required of the
physician in such a case are measured by the requirements of the case
and the physician’s duties to his other patients, modified, however,
by the rule that the physician is presumed to know, at the time he
takes up the case, the condition and situation of his other patients
at that time. Consequently, if those who have first employed him are
so situated at the time that his services for them are likely to be
soon and continuously required, he cannot without making himself liable
in damages undertake another case and then neglect it, but he should
either decline to take it, or should with the full knowledge and
consent of the patient make provision for the temporary substitution
of some other physician, during the time that his prior obligations
engross his attention. Nevertheless, if the situation and condition of
those to whom he has first contracted his services is such that he had,
although he exercised due professional knowledge and skill, no reason
to apprehend that these patients would need his exclusive service,
and by a sudden development, arising from those occult causes which
obtain in all serious diseases and injuries, any of his prior patients
suffer a sudden and dangerous relapse, or from an accession of new and
dangerous symptoms and conditions so that he must fly to their aid,
he would not be liable to another patient, to whom he had afterward
contracted his services, for neglecting his case; still he should in
such instances use extra means to obtain the services of some other and
equally skilful man.

_Only Ordinary and Usual Skill Required._—The degree and character
of necessary skill contracted for has been variously defined by the
courts. When malpractice is discussed, a more extended consideration
of this matter will be required. At present the doctrine laid down
in Shearman and Redfield on “Negligence,” paragraphs 433-435, may be
adopted. It is as follows:

“Although a physician or surgeon may doubtless by express contract
undertake to perform a cure absolutely, the law will not imply such
a contract from the mere employment of a physician. A physician is
not an insurer of a cure, and is not to be tried for the result of
his remedies. His only contract is to treat the case with reasonable
diligence and skill. If more than this is expected it must be expressly
stipulated for.... The general rule, therefore, is, that a medical
man, who attends for a fee, is liable for such want of ordinary care,
diligence or skill on his part as leads to the injury of his patient.
To render him liable, it is not enough that there has been a less
degree of skill than some other medical man might have shown, or a less
degree of care than even himself might have bestowed; nor is it enough
that he himself acknowledged some degree of want of care; there must
have been a want of competent and ordinary care and skill, and to such
a degree as to have led to a bad result.... But a professed physician
or surgeon is bound to use not only such skill as he has, but to have
a reasonable degree of skill. The law will not countenance quackery;
and although the law does not require the most thorough education or
the largest experience, it does require that an uneducated, ignorant
man shall not, under the pretence of being a well-qualified physician,
attempt recklessly and blindly to administer medicines or perform
surgical operations. If the practitioner, however, frankly informs his
patient of his want of skill, or the patient is in some other way fully
aware of it, the latter cannot complain of the lack of that which he
knew did not exist.”[164]

_Average Standard of Skill of any Professed School must be
Attained._—It is also a rule that one who professes to adhere to
a particular school must come up to its average standard, and must
be judged by its tests, and in the light of the present day. Thus a
physician who would practise the reckless and indiscriminate bleeding
which was in high repute not very many years ago, or should shut up
a patient in fever and deny all cooling drinks, would doubtless find
the old practice a poor excuse for his imbecility. So, if a professed
homœopathist should violate all the canons of homœopathy, he would
be bound to show some very good reasons for his conduct, if it was
attended with injurious effects. Upon many points of medical and
surgical practice all of the schools are agreed, and indeed common
sense and universal experience prescribe some invariable rules, to
violate which may generally be called gross negligence. Yet the patient
cannot justly complain if he gets only that quality and kind of service
for which he bargains. If he employs a cheap man, he must expect cheap
service. Puffendorf, in his “Law of Nature and Nations,” observes:
“We read a pleasant story of a man who had sore eyes and came to a
horse-doctor for relief. The doctor anointed his eyes with the same
ointment he used among his horses, upon which the man falls blind,
and the cause is brought before the judge, who acquits the physician.
For if the fellow, says he, had not been an ass he had never applied
himself to a horse-doctor.” See also Jones on Bailments, 100; 1 Field’s
“Lawyers’ Briefs,” sub. Bailments, Sec. 573; Musser _v._ Chase, 29 Ohio
St., 577; Lanphier _v._ Phipos, 8 Carr. & Payne, 478.

_Degree of Care and Skill Used a Question of Fact._—In an action
at law, whether brought by a physician to recover for his services,
or by a patient to recover for malpractice or neglect, it is always
a question of fact, to be determined by the jury under proper
instructions as to the measure of care and skill required, whether or
not the physician has in a given case used that degree of care and
displayed that amount of skill which might reasonably be expected of a
man of ordinary ability and professional skill. These same rules apply
to the surgeon. He must possess and exercise that degree of knowledge
and sense which the leading authorities have announced, as a result of
their researches and experiments up to the time, or within a reasonable
time before, the issue or question to be determined is made.[165]

_Rule in Leading Case of Lanphier v. Phipos._—In the case of Lanphier
_v._ Phipos, 8 C. & P., 478, already cited, Chief Justice Tyndall
enunciated the rule as to the degree of skill required of a physician
or surgeon, which has been followed by all the courts since then. He
said: “Every person who enters into a learned profession undertakes to
bring to the exercise of it a reasonable degree of care and skill. He
does not, if he is an attorney, undertake at all events to gain the
cause, nor does a surgeon undertake that he will perform a cure; nor
does the latter undertake to use the highest possible degree of skill,
as there may be persons of higher education and greater advantages
than himself; but he undertakes to bring 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 a want of proper degree of skill and care in the defendant,
or not. Hence he is never presumed to engage for extraordinary skill,
or for extraordinary diligence and care. As a general rule, he who
undertakes for a reward to perform any work is bound to use a degree
of diligence, attention and skill, adequate to the performance of his
undertaking; that is, to do it according to the rules of the art;
_spondet peritiam artis_. And the degree of skill arises in proportion
to the value and delicacy of the operation. But he is in no case
required to have more than ordinary skill, for he does not engage for
more.”

_Physician Must Instruct Patient how to Care for Himself, etc._—A
corollary of these rules is, that the physician must give proper
instruction to his patient how to take care of himself, how to manage a
diseased or injured member, when and how to take any medicines that may
be prescribed, what diet to adopt, and that in case the physician fails
to give these instructions he is liable for any injuries that result
from this failure. Carpenter _v._ Blake, _supra_.

_Patient Must Inform Physician Fully Concerning his Case—His
Communications Privileged._—On the other hand, as we have already
stated, the patient owes the duty to his physician of informing him
fully of all the varied symptoms of his disease, or the circumstances
attending his injury, and to freely and with due confidence answer
all questions concerning his past history which would tend to throw
any light upon his present condition. To battle with the occult
forces which play so important a part in determining the course or
consequences of disease, it is absolutely essential that the physician
should know all that is possible to be known of the patient’s history,
and of the history of the patient’s family. As we shall see later on,
all such communications are, in most of the States of the Union and
elsewhere, by statutory enactment made privileged, and without the
consent of the patient the physician or surgeon is absolutely forbidden
to divulge any communication or information which he receives in order
to enable him to prescribe. This rule applies equally whether the
physician or surgeon is acting for hire or is treating the person as a
charity patient, and it has been extended by construction by the courts
in some States, so as to include examinations made by jail physicians
or other physicians sent by the prosecuting officials of the State to
examine a prisoner, for purpose of giving evidence, but who allowed
the prisoner to suppose that they were there simply to treat him in
their professional capacity. People _v._ Murphy, 101 N. Y., 126. At
the same time the courts have been careful to make an exception in the
case of advice given for the purpose of enabling the person receiving
the advice to commit a crime, and of any information received by the
physicians while the persons asking for it were engaged in a criminal
attempt. All of these interesting questions will be examined and
treated of at length hereafter.[166]

_Conditions of Contract Between Physician and Patient Further
Considered._—It has been observed that the contract between the
physician and patient may be conditional or unconditional. By this it
is meant that limitations upon the reciprocal obligations between them
may be imposed, or extensions of such obligations made, by special
agreement. The physician may contract to cure, and may make the cure
a condition precedent to receiving any reward for his services or
medicaments, and a breach of such a contract will be enforced by
the courts as a bar to an action for services rendered or medicines
furnished. The patient may agree to come to the physician’s home or to
a hospital or other place agreed upon between them, for the purpose of
being treated, or of being operated upon by a surgeon, and a failure
to perform such an agreement on the part of the patient absolves the
medical man from carrying out his agreement to treat the patient.
In the case already suggested of a request by the medical man for
information as to the patient’s past history, or that of the patient’s
family, or the circumstances concerning the injury or symptoms of
the disease, if the patient should give false information, or should
wilfully neglect to give true information, the physician would have a
right, upon giving reasonable and due notice, and opportunity to employ
some one else, as already intimated, to decline to proceed further with
his care of the case, and might sue and recover pay for the services
rendered.

_Physicians Cannot Contract that they shall Not be Responsible for
Want of Ordinary Care and Skill._—An important and salutary exception
to the general rule that all parties may contract freely as between
themselves stipulations measuring their reciprocal obligations,
doubtless applies to the relations between physician and patient.
It is an exception which has been applied to the contract relations
existing between a common carrier and a shipper or a passenger. This is
that persons contracting to perform services which are to a certain
extent public in their nature, and which, as in the case of the common
carrier or in the case of the physician or surgeon, are founded
upon conventional relations, and affect the public welfare, are not
permitted, from reasons of public policy, to contract for a release or
escape from liability arising out of their own negligence or wrong. In
short, a physician or surgeon cannot contract with a patient that the
patient shall waive any claim for damages growing out of his want of
ordinary care and skill. Nevertheless, the physician or surgeon may
frankly inform his patient of his want of knowledge and experience as
to the particular kind of treatment required by any special and unusual
disease or injury. If after full information on this point, and full
opportunity to employ some one else, the patient insists that the
physician or surgeon go on with such treatment as he is able to give
to the case, and injuries result which a more skilful and experienced
practitioner might have avoided, it is probable that the courts would
hold that the practitioner was not liable under such circumstances,
or that such circumstances could be pleaded in mitigation of damages.
But it would be the duty of the practitioner in such a case to be
exceedingly careful in performing any surgical operations, and not
administer any powerful drugs with the strength and medicinal qualities
of which he was not acquainted. If he should assume to perform such
operations or administer such drugs instead of confining himself to
modifying the ravages of disease by the use of well-known simple
remedies, or protecting against the consequences of severe injury by
the use of ordinary antiseptic dressings and treatment, he would no
doubt be liable for any resulting damage, and could not recover pay for
his service.

_Experiments Not to be Tried on Patients—This Rule Applies to Charity
Patients._—For like reasons of public policy it has been held that a
physician has no right to try experiments on his patient.[167] In this
respect a charity patient will be protected by law and compensated for
damages received from experiments on his health and person, just as
much as a person from whom a large fee could be expected. Humanity and
public policy both forbid that experiments should be tried upon one
class of patients any more than another. However this may be, in a
case of extreme danger, where other resorts have failed and everything
else done that could reasonably be required, and if the patient and
his family consent after full information of the dangerous character
of the operation, or the unknown qualities and powers of the drug to
be administered, the practitioner would be justified and protected if
some new methods of treatment not entirely developed or known to the
profession, but supposed to be efficacious, should be adopted, although
the result might prove unfavorable. In such a case, however, it would
be extremely perilous for the physician to stand upon his own judgment
alone. He should consult the best talent in his profession available,
and abide by the judgment of his colleagues or a fair majority of them;
and even then should apply to his course of action the maxim. When in
doubt run no risks; better let a patient perish from disease or injury,
than while attempting uncertain experiments with the surgeon’s knife
or the use of dangerous drugs. The safe rule is to take no chances,
unless there is a consensus of judgment of several physicians. It
may be objected that if no experiments are tried no new medicines or
surgical devices could be discovered, or their effects observed. The
answer to this objection is that vivisection, and other experiments
upon live animals, permit of experimentation to a considerable degree,
and often effectually point out the proper course of treatment of the
human subjects. In the case of drugs and medicines the practice is well
known of physicians trying the effects thereof upon their own persons,
in their zeal and anxiety to give to the world new discoveries. But,
as heretofore observed, the law does not recognize the right of the
medical or surgical practitioner to tamper with his patients’ health by
the use of untried experiments, without imposing upon the practitioner
liability for all injuries proximately resulting from their use. All
of such matters will, however, fall more properly under consideration
when the liability of the physician and surgeon for malpractice is
considered.



CHAPTER IV.

OF THE LEGAL RIGHT OF PHYSICIANS AND SURGEONS TO RECOVER COMPENSATION
FOR SERVICES.


_Liability to Pay for Services._—An important matter for physicians
and surgeons is the question as to who is responsible, or liable to pay
for their services. If there is an express contract this question does
not arise; but in most instances the person performing the services
renders them upon call, and it is necessary for him to understand his
legal right to recover pay for services in the absence of an express
contract.

_Person Treated, and not Person calling in Physician, Employs Him
and is Liable._—In the first place, it must be stated as a general
proposition that the person for whom the services are actually
rendered, or upon whom the operation is performed, is bound to pay for
them, if otherwise capable in law of making contracts and incurring
obligations. And secondly, that one who calls a physician or surgeon
to attend a patient is not presumed to have contracted to pay for the
services rendered, unless his relations with the patient are such that
he would be obligated in law to pay, even if he had not himself called
in the medical man.

In the first case it is presumed that the patient is liable, because he
receives the benefit of the services, and nothing less than a distinct
understanding that he was not to pay will relieve him from this
obligation.

_Married Women and Infants Generally Not Liable._—Where such a person
is a married woman, unless the case arises in States or countries
where married women have been declared by statutes to be liable
the same as if single, this rule does not obtain. Nor is an infant
personally liable when he is living with his parent or guardian. Hull
_v._ Connelly, 3 McCord (S. C.), 6; Klein _v._ La Amoreaux, 2 Paige
Ch., 419; Atchinson _v._ Bruff, 50 Barb., 384; Wilcox _v._ Smith, 26
Barb., 341. But the contract of an infant for medicine and medical
attendance is deemed a contract for necessaries, and will be held
valid and enforced against his estate if there is no person standing
_in loco parentis_ who can be held liable. 3 Barn. & Cress., 484; 2
Kent Com., 236. In cases when the parent of the infant or the husband
of the married woman is liable, this liability obtains because the
services rendered are deemed necessary, and fall within the common-law
obligation of such persons to provide and pay for necessaries for those
whom they are bound to support and maintain.

_Burden upon Physicians Treating Minors to Show Services
Necessary._—But even in such cases the burden is upon the person
performing the services, to show that they were necessary, and it is
his duty to know, or learn, the true legal status of the patient, and
the true legal relations of the patient to the person other than the
patient from whom payment is to be claimed. As said in the case of
Crain _v._ Baudouin (55 N. Y., 256-261), “in the case of minor children
even, the law imposes this duty upon those who would furnish them with
necessaries, relying upon the credit of their fathers, and seeking
to charge them. (Hunt _v._ Thompson, 3 Scam., 179; Van Valkinburgh
_v._ Watson, 13 J. R., 480).” “_A fortiori_, it is so in the case of
an adult married daughter living with her husband.” And as to the
liability of the husband of a married woman in the absence of statute
giving her legal capacity to contract and charge her separate estate.
Consult Moody _v._ Osgood, 50 Barb., 628; Potter _v._ Virgil, 67 Barb.,
578; Crain _v._ Baudouin, 55 N. Y., 256-261.

_Mother of Infant probably Liable after Father’s Death._—It has been
a much disputed question whether after the father’s death the mother
becomes responsible for necessaries furnished for her minor children.
The theory of law upon which a father is made liable proceeds upon the
ground that he is bound to support the child and has a right to the
child’s services during its minority.[168] It has been held that the
mother after the death of the father is entitled to those services.
Campbell _v._ Campbell, 3 Stock. (N. J.), 265; Cain _v._ Dewitt, 8
Iowa, 116; Furman _v._ Van Size, 56 N. Y., 435-439, disapproving
Bentley _v._ Richtmeyer (4 Comstock, 38), and approving _In re_ Ryder,
11 Paige, 185. If she is entitled to the services of her child, she
must be bound to support and care for it; and so it was held in Furman
_v._ Van Size cited above.

_Estates of Insane Persons Liable in a Proper Case._—Persons of
unsound mind are liable for necessaries furnished for their benefit,
and can be made to pay therefor at reasonable and proper rates, but
they cannot make contracts for a specific rate. It is always a question
of fact as to what sum should be charged against their estates, if they
have any.

_Master Not Liable for Services Rendered Servant without Special
Contract._—In the case of master and servant, while at common law as
between a master and servant the master was bound to provide medicine
and food for the servant when the servant was an inmate of the master’s
house, this is an obligation which a third person could not enforce,
and the master can only be held liable for services rendered to the
servant, upon proof of a specific contract with him to pay for them.

 _Case of Crain v. Baudouin Considered._—The case of Crain _v._
 Baudouin, _supra_, affords an interesting discussion before the
 highest court of New York State, as to the question as to how far a
 father calling a physician for an adult child for whom he is not bound
 to provide, although lying sick at the father’s house, can be held
 liable for the services rendered upon such call. In that case the
 plaintiff attended as a physician upon the daughter of the defendant,
 who was sick at his house. The daughter was of full age, married and
 living with her husband, but was brought from that of her husband to
 that of her father in order that she might be under the care of her
 mother. Defendant was present when plaintiff made his calls, gave the
 latter a history of the patient’s illness, and received directions
 as to her treatment. He told others of the frequency and length of
 the plaintiff’s visits, and of his opinion of the case, without any
 disclaimer of liability. The Court held, however, that these facts
 were insufficient to imply a promise on the father’s part to pay
 for the services, and that the additional facts that the defendant
 consented to the calling in of a consulting physician, and that a bill
 was sent in by the plaintiff, unless acknowledged and acquiesced in by
 defendant, or that he had before this employed other physicians, were
 also insufficient to raise an implication of law of such a promise
 to pay. The plaintiff relied in his argument upon the fact that the
 patient was a daughter of the defendant, but the Court held that any
 presumption which might arise from this had the daughter been under
 age, was overcome by the fact that she was past a majority, and was
 married and lived with her husband and children. The plaintiff also
 relied to support his cause of action upon the interest exhibited
 by the defendant in the course of treatment pursued, and the other
 facts as to the presence of the defendant when the plaintiff made
 his professional calls alone and in consultation; his receiving
 directions as to treatment; his recognition to others of the fact that
 the plaintiff was in attendance; his reciting to others a knowledge
 of the frequency and length of the visits of plaintiff without any
 disclaimer on the part of the defendant of liability. The Court said
 as to these facts: “It is true that particular acts will sometimes
 give rise to particular obligations, duties and liabilities. But the
 party whose acts are thus to affect him must be in such predicament
 as that those acts have, of legal necessity, a significance attached
 to them, at the time, which he may not afterward repel.... It has
 been held that a special request by a father to a physician to attend
 upon his son, then of full age but lying sick at the father’s house,
 raised no implied promise on the part of the father to pay for the
 services rendered.” See Boyd _v._ Sappington, 4 Watts (Pa.), 247; and
 so in Veitch _v._ Russell, 3 Ad. & Ell. (N. S.), 927, it is said:
 “A physician attends in every case on request; that fact alone is
 not enough for the inference of a special contract;” and see Sellen
 _v._ Norman, 4 Carr. & P., 284. Still less where there has been no
 special request by the father to the physician, and no more than
 acquiescence in his calls. As it would be unnatural for the parent
 of an invalid child, though legally emancipated, or for an intimate
 and confidential friend of hers, not to know the rise and course of
 her malady, not to be interested in the state of it as disclosed at
 any time to skilled inspection, not to be so anxious as to be in
 waiting when scientific skill was to be applied for its cure, not to
 be ready to receive directions for treatment in the intervals; so it
 is not to be implied in the one case more than in the other that,
 from these manifestations, because unaccompanied with an express
 repudiation of liability, a liability may be implied. They are to be
 referred to natural affection and friendly sympathy, rather than to
 an acquiescence in the rendition of a personal benefit, or counted as
 acts done under a sense of legal obligation.” The Court further said
 that “even if it should be assumed that the usage exists that the
 physician called to consult with him who is in attendance, with the
 consent of the person who has employed the latter, is in contemplation
 of law in the hire of that person, still the assent of the defendant
 to the calling in of the consulting physician, and his expression of
 desire to be present when he came—until he is shown to have employed
 the plaintiff—is a basis too weak for an implication of law, that
 he promised to pay his consultation fees. Still less it is a fact
 from which to imply a promise to pay the plaintiff.” This case is,
 however, close to the border line, and it may be well criticised
 and denied its apparent full weight of authority, notwithstanding
 the very great learning and ability of the learned Judge Folger,
 who wrote the opinion, upon the ground that it appears that the
 father had as a witness expressly denied calling in the plaintiff or
 authorizing anybody to call him in, or authorizing the employment of a
 consulting physician, and that on the trial the Court had found upon
 the whole testimony in the case that the defendant had never employed
 the plaintiff. Taking the decision as a whole it cannot be regarded
 as determining that upon such a set of circumstances as is there
 disclosed, the father could not in any event have been held liable,
 but rather that the trial court having found upon the whole testimony
 that the defendant was not liable, having witnesses before it fully
 able to judge of their capability, the appellate court could not say
 as a matter of law that a finding in favor of the defendant should be
 overruled. This case is considered here at some length chiefly for
 the purpose of affording an illustration to physicians and surgeons
 which will suggest to them the advisability of care in ascertaining in
 all cases who is responsible for their charge for services. See also
 Bradley _v._ Dodge, 45 How Pr. (N.Y.), 57; Smith _v._ Riddick, 5 Jones
 (N. C.), 42.


LIABILITY OF THIRD PERSONS CALLING A PHYSICIAN—GENERAL RULE.

As to liability for services rendered, when the medical man is called
by one person to attend another, it may be stated as a general rule
that in order to create such a liability it must appear that the person
calling either actually intended to become responsible, or acted in
such a manner that the physician was led to suppose that he so intended.

_Liability of Railway Company Calling Physician in Case of Accident
to Employees, etc._—Another more troublesome question has arisen
where physicians and surgeons have been called in by employees of a
railway company in case of sudden accident or injury. In one case in
New York, the Superior Court of New York City held, that although the
general superintendent of a railroad company testified that he had
general authority to hire and discharge men, and that he had employed a
physician, the railroad company was not liable.[169]

 This doctrine seems to be opposed to the weight of authority. See
 cases collated in Vol. 18, “Am. and Eng. Cyclopædia of Law,” p. 434
 _et seq._, some of which are: Toledo, etc., R. R. Co. _v._ Rodrigues,
 47 Ill., 188; Same _v._ Prince, 50 Ill., 26; Indianapolis, etc., R. R.
 _v._ Morris, 67 Ill., 295; Cairo, etc., R. R. Co. _v._ Mahoney, 82
 Ill., 73; Atchison, etc., R. R. _v._ Beecher, 24 Kansas, 228.

 _Same Rule does Not Prevail in United States in Case of Accidents to
 Passengers._—The cases just noted were all cases of employees. In
 the cases of injured passengers it has been doubted whether the same
 rule applied, some State courts holding that in that case there is no
 obligation to furnish medical and surgical attendance, but that the
 physician attending must look to the persons whom they attended. Union
 Pacific R. R. Co. _v._ Beatty, 35 Kansas, 265; Brown _v._ Missouri, 67
 Missouri, 122.

 _Different in England._—In England a different rule prevails—one
 more humane and in consonance with the moral obligation imposed by
 the relationship of the parties. In Walker _v._ The Great Western
 R. R. Co., a recent case (Law Reports, 2 Exch., 228), Chief-Justice
 Kelley, in the course of the argument, made this remark: “Must a board
 be convened before a man who has his legs broken can have medical
 attendance?”

 But in Cox _v._ The Midland Counties R. R. Co. (3 Wellsby, H. &
 G., 268), the station master, employed as the chief officer of the
 passenger and other departments, called in a surgeon to perform an
 operation upon a passenger injured by a train. The road was held not
 liable.

 On the other hand, in Langan _v._ Great Western R. R. Co. (30 Law
 Times, N. S., 173), a sub-inspector of railway police was held to have
 implied power to employ a surgeon for an injured employee. But in
 Arkansas an attorney for a railroad company was held not authorized to
 do so. St. Louis, etc., R. R. Co. _v._ Hoover, 53 Ark., 377.

 _Doctrine in Indiana the More Sensible One._—The more sensible
 doctrine seems to be established in this country, in the State of
 Indiana at least, in the case of Terre Haute R. R. Co. _v._ McMurray
 (98 Ind., 358), in which the Court held that where there was great
 necessity for the employment of a surgeon, the conductor of a train
 has authority to employ the surgeon, if the conductor is the highest
 officer in rank on the ground at the time. But in that case the Court
 expressly states that this liability grows out of the exigencies of
 the case; not out of any theory of general authority.

 _Authority of Railroad Physician to Employ Nurses, etc.,
 Doubtful._—It has also been disputed whether the authority of the
 company’s physician extended far enough to render the company liable
 for services performed by nurses employed by him, or for board and
 lodging engaged by him for injured employees. In Bingham _v._ Chicago,
 etc., R. R. Co. (79 Iowa, 534), it was held that the authority was
 sufficient, but in that case testimony appeared tending to show that
 an agent of the company who had authority to employ the physician had
 authorized him to employ two nurses. The converse doctrine—namely,
 that the fact that a physician of the company was authorized to
 buy medicines on the credit of the company does not authorize the
 inference that he has power to render the company liable by a contract
 for board and nursing of a person injured on the company’s road—was
 held in Maber _v._ The Chicago, etc., R. R. Co., 75 Missouri, 495;
 Brown _v._ The Missouri R. R., 67 Missouri, 122. To the same effect,
 see Louisville, etc., R. R. Co. _v._ McVeigh, 98 Ind., 391; Cooper
 _v._ N. Y. C. & C., 6 Hun, 276; and St. Louis, etc., R. R. Co. _v._
 Hoover, 53 Arkansas, 377. 2 Redfield on Railways, 114:

 On the other hand, where a physician and surgeon has been duly
 employed by a sub-officer or servant of the railroad company,
 ratification of this employment, by those having authority to employ
 him and to render the company liable, will be inferred from slight
 circumstances.

 Such was the case of Louisville R. R. Co. _v._ McVeigh, which has been
 cited.

 And in another case where information of the fact of the employment
 had been conveyed to the company’s general manager, and he had
 neglected and omitted to repudiate the employment or to terminate it,
 and the surgeon went on and performed services, it was held that from
 these facts a ratification will be inferred. Indianapolis R. R. Co.
 _v._ Morris, _supra_. See also Toledo, etc., R. R. Co. _v._ Rodrigues,
 _supra_; Same _v._ Prince, _supra_; Terre Haute, etc., R. R. Co. _v._
 Stockwell, 118 Ind., 98.

_Presentation and Retention of Doctor’s Bill Raises No Presumption of
Liability._—The presentation of a bill to a person containing charges
against him for services rendered another person, and his retention
of that bill without disclaimer of liability, does not raise a
presumption of liability, for it is not necessarily an account stated.
To constitute an account stated, there must be not only a statement of
account, but acquiescence in it; mere retention of the account is not
sufficient.

_Bills Presented Not Conclusive as to Amounts Charged._—On the other
hand, if a bill is presented which contains charges which are not
acquiesced in, the person making out and presenting the bill is not
absolutely bound by the charges therein contained, although such a bill
affords some evidence as to the value of the services rendered.[170]

_Claims Against Estates of Deceased Persons._—A bill for a physician’s
services constitutes a claim against the estate of a deceased person,
like any other debt. In some States it is a preferred claim.[171] In
this connection it should be observed that short statutes of limitation
exist in most countries and States applicable to such cases, shorter
than the ordinary limitation imposed by law upon the right to sue upon
claims for services rendered (which is six years). In order to preserve
his legal rights, the physician should as soon as possible after the
death of the person for whom his services have been rendered, ascertain
who is the administrator or executor of the estate of such person, and
file with such representative, personally, proof of his claim.

_Patient who Receives Benefit of Services of Consulting Physician
Liable._—The liability of a patient for the services of a consulting
physician is generally governed by the same rules as his liability to
the physician in immediate charge of the case.[172]

Where the patient accepts the services of a consulting physician,
although he has not directly requested them, he must pay for them if
he receives the benefit of them without objecting, because it will be
presumed that he ratified the act of the physician who was in charge of
the case, in calling the other physician into consultation.[173]

But, however this may be, it is a principle of professional ethics,
which has almost acquired the authority of legal doctrine, that a
physician in charge of a case should obtain the full assent of a
patient, or of his family and friends, if he is too ill to give his own
consent, to the calling of another physician in consultation.

_No Other Stranger can be Called into Sick-Room without Assent of
Patient._—A limitation upon the authority and right of an attending
physician is, that if he desires or attempts to call in a stranger not
a physician, he must obtain his patient’s consent. The obligation of
a physician toward his patient of secrecy and confidence is regarded
as very strict, and if a physician should call in a student or other
stranger, without first consulting his patient, or those who are in
some measure related to him and connected with him, it would be a very
severe stretch of morals and possibly of law. In fact, in a recent case
in Michigan, a physician was held liable for damages who called in a
stranger, an unmarried man, who was an unprofessional man, to be with
him while he was in attendance on a confinement case. In that case both
the physician and the person so called in, and who was present at that
time, were held liable in damages; and it was further held that the
right to recover was not affected by the fact that the patient supposed
that the person so called in was a medical man, and therefore submitted
to his presence without objection.[174]

The statutes which create the privilege as to professional
communications and information necessary to enable the physician to
prescribe, might not apply to students or other strangers, and this is
probably the reason for the rule of law laid down in the Michigan case.
The obligation to preserve inviolate a communication as a privileged
communication, including in the meaning of the word “communication”
all knowledge or information received while in attendance upon a case,
would be held to have been broken by the act of the physician in
bringing in a stranger who would not be privileged from testifying.


MEASURE OF RECOVERY FOR SERVICES RENDERED.

_Terms of Express Contract Govern—Reasonable Worth the Rule in Implied
Contracts._—In case of an express contract its terms necessarily
measure the amount of the charges. In the absence of an express
contract fixing the value of the services to be rendered, the measure
of damages for breach of payment is like that in any other case of
personal services, the reasonable worth and value of the services
performed. So likewise if medicines or appliances are furnished, which
are not reasonably to be expected and furnished, according to the
custom of the school to which the physician or surgeon belongs, the
reasonable worth and value at the time of furnishing them, and at the
place of furnishing them, is the measure fixed by the law to determine
what shall be recovered for them.[175]

_Value—How Proved._—When the medical man is compelled to go into
court to enforce payment for his services, it has been questioned
whether he can testify to the services rendered, and the facts and
circumstances surrounding the patient at the time of the treatment,
because it has been claimed that he could not do so without violating
the statute against the disclosure by physicians of information
received which is necessary to enable them to prescribe. The tendency
of the later decisions, however, seems to be that the breach of the
patient’s contract to pay relieves the physician from his obligation
of secrecy, and consequently, that if it is necessary for him to go
into court and prove the value of his services, he may testify, within
reasonable limitations, to all matters necessary to inform the court
fully as to the nature and extent of the disease or injuries of the
patient, in order that he may show the responsibility imposed upon him
and the extent of the services that he has rendered. This subject will
be fully considered under the head of “Privileged Communications.”
The usual course of practice where there is not an express contract
fixing the charges, is to prove the facts and circumstances showing the
treatment and services, and then to produce other physicians who, in
answer to a hypothetical question stating the facts and circumstances
in the case, assuming them as true, are allowed, if they state they
know the value of such services, to give an expert opinion as to what
that value is.[176] It has also been said (Ordronaux, “Jurisprudence
of Medicine,” § 43), that if a fee-bill of charges for such services
has been established by an association of physicians recognized by
law, such as a county medical society or a State medical society,
incorporated pursuant to statute, such fee-bill can, if properly
authenticated as having been adopted by the association, be offered in
evidence on behalf of the patient and against the physician. But such
a fee-bill in such a case would not be held to be conclusive evidence
of the value of the services, but will be received in evidence, if at
all, merely for the purpose of showing what was the usual and ordinary
charge in such cases. As we shall see later on, under “Malpractice,” a
judgment for services rendered, however small, is a bar to an action of
malpractice, because a judgment for the value of the services rendered
involves proof on the part of the plaintiff, and a finding on the part
of the court, that the services had value and were skilfully performed
and properly rendered.[177]

_Custom of Physicians to Treat Each Other Gratis,
Enforceable._—Physicians frequently treat each other, and it has been
held, where the custom exists to do so without charge, that such a
custom is binding. Of course, this rule does not prevent physicians
from making an express contract to waive the custom and agreeing that
the services be compensated.

_Elements to be Proved in an Action for Service, etc.—General
Advice._—The result of these rules may be thus summarized, viz.: The
elements to be established in an action for services by a physician
against a patient are three in number—(1) the employment; (2) the
performance of the services;[178] and (3) the value of the services,
that value being either a fixed value determined by the terms of the
contract between the parties, or the reasonable worth and value of the
services determined by evidence of experts upon that subject. It is,
therefore, important that physicians and surgeons should be advised,
when entering upon the practice of their profession, to keep a record
of their transactions and of their business generally. Because, if they
are compelled to go into court to recover for their services, they will
be called upon to describe with minuteness the character and extent
of the services they have performed in order that the value thereof
may be correctly ascertained and determined in the suit. Any person in
active practice who is not blessed with a most tenacious and particular
memory is liable to forget a great many details which, with a record in
hand, properly kept, could be brought to his memory and be testified to
with absolute truthfulness and conviction. And the record itself, when
properly shown to be a book of original entry, is generally receivable
in evidence, as a memorandum of the transaction.[179]



CHAPTER V.

 OF THE PRIVILEGES AND DUTIES OF PHYSICIANS AND SURGEONS WHEN SUMMONED
 AS EXPERT WITNESSES IN COURTS OF JUSTICE.[180]


_Introductory—Distinction Between Expert Witnesses and Other
Witnesses._—One of the most important positions that a medical man
is called upon to assume by virtue of his professional character, is
the position of expert witness. Most writers on medical jurisprudence
confine themselves, in the discussion of this subject, to presenting
the medico-legal rules which appertain to this position, and concede
its high importance. Before defining what is meant by the term expert
witness, or treating of the rules which determine the status of such
witnesses in court, and their duties, it seems advisable to introduce
the subject by a brief consideration of the distinction between
ordinary witnesses and expert witnesses. When medicine and law are
united in the purpose of investigating facts, and bringing about a
legal determination as to what are or are not facts, they co-operate
with each other in this way. The law furnishes the machinery for the
inquiry and the rules which determine how it shall be prosecuted.
The medical man, however, is called upon as an assistant to the law,
because of his skill and experience in his profession, which enable
him to ascertain and interpret the circumstances from which the facts
sought to be established are to be inferred. Ordinary witnesses testify
concerning matters of observation, the court and jury being endowed
with the sole power to determine the credibility of their evidence
and the true result of their observations. Yet the border line of
distinction between witnesses who testify merely to actual matters
of observation, and those who give their opinions upon and draw
inferences from established facts and circumstances, is a wavering
one. The general rule of evidence is well understood, that hearsay
evidence is inadmissible, and yet, like any other rule, this has its
exceptions which grow out of the necessities of given cases. This is
so because there are and always will be, matters brought before courts
for investigation and determination, long after the witnesses who
personally saw the facts and circumstances of the particular case in
which such matters are concerned have died, or have withdrawn beyond
the reach of the process of the court. Possibly no record in writing
of such facts and circumstances has been left, or if in writing it
lacks the sanctity of being a judicial writing, and hence is no better
evidence than any other form of hearsay evidence. For this reason in
matters of family history, pedigree, custom, and the like, hearsay
evidence is permitted, and is entitled to as much weight as any other
evidence, if the witnesses giving it be trustworthy.

_In Matters of Common Experience Witnesses in General Often State
Conclusions._—Moreover, in matters of common experience, the testimony
of any witness, if carefully analyzed, often shows that he is sometimes
allowed to draw, and state, his conclusions and inferences, instead
of being required to confine his evidence simply to telling in the
strictest possible way, and with the closest limitations, what he
actually witnessed. A good illustration of this is the case of a
person who sees a crime of homicide committed by shooting, and is
called upon to testify in court. He would be allowed to testify that
the defendant, if he could identify the prisoner at the bar as such,
was the person whom he saw fire the shot, although he might not have
examined him with close scrutiny, and might never have seen him before
the crime. In saying that the defendant was the person who fired
the shot, while he would be in terms testifying to a fact, he would
still be drawing an inference, and giving an opinion, based upon his
recollection of the person whom he saw engaged in the act of firing,
and of the likeness or resemblance of such person to the prisoner at
the bar, which would be a matter of comparison and of opinion. So, too,
although he could not see the bullet take its course from the mouth
of the gun and imbed itself in the body of the deceased, yet if he
saw the firing, heard the explosion, saw the flash and smoke of the
powder, observed the direction in which the accused pointed the weapon,
and saw the deceased stagger and fall, he would be allowed to testify
in answer to a direct question whether or not the accused shot the
deceased. And, yet in making up that answer he would be testifying not
simply to a matter of actual observation, but to a conclusion. As it
is in reference to the question of identity so it is as to many other
matters which come before our courts, in all of which the witnesses are
permitted, without objection, to testify to conclusions and to give
answers which are the result of inferences which they draw themselves,
rather than a statement of their actual observations. The law is not
a metaphysical but a practical science, limited and confined by the
practical restrictions which experience has shown must be put upon
it, in order to enable it to accomplish its object of administering
justice between man and man. Men form such conclusions as have been
indicated, instinctively and unconsciously, and it would be practicably
impossible for them to narrate any occurrence without embodying in
their narration some of these natural and unconscious conclusions.
The law, therefore, includes among the matters which witnesses are
permitted to characterize as facts, those daily and hourly inferences
and deductions which all men are accustomed to make, and concerning
which no two men who are properly constituted can greatly differ.
It is true that this practice sometimes leads to error, but it has
grown out of necessity. The greatest safeguard is, that upon the
trial of a question of fact both sides are represented by counsel,
and the opportunity which cross-examination offers to an advocate of
even reasonable and ordinary skill is such, that these conclusions
and inferences may be sifted down through the chain of observation,
and the process of drawing these conclusions and inferences from a
series of facts, tested in such a manner that the improbability,
probability, or truth of any given inference or conclusion may be
determined with substantial accuracy. The illustrations which have
been given above exhibit the simplest form in which so-called direct
testimony can be demonstrated to be not always positive and direct
testimony, but somewhat a matter of inference. Other examples and
illustrations of common occurrence will exhibit still more closely the
line between actuality and opinion. At times it becomes essential to
the determination of a question, that the courts should know whether or
not a person was angry, whether or not he was intoxicated, or whether
or not at a given time, when his mental status was under observation,
he acted rationally or irrationally. Lay witnesses have for many years
been permitted to testify from observation, and without possessing any
special qualification to do so, as to the existence or non-existence of
such conditions as those just mentioned in a person whose actions are
under consideration. It is manifest that in making any such inferences
the witnesses’ testimony is mainly a conclusion based on inference.
Take the case of anger. How shall that be determined? It is difficult
to describe anger. A loud voice, a flushed face, the use of bitter
words, nervous, excitable, demonstrative action—all these symptoms
might occur, or but few of them might occur. So, too, in the matter
of intoxication. It is well known that some individuals exhibit the
effects of intoxicants in an entirely different manner and degree from
others. Some men who are very much intoxicated, so as to be quite
incapable, in the eye of the law, of forming a criminal intent, or of
contracting an obligation which would be valid, may still be able to
walk perfectly straight, or to talk without much confusion. Others,
whose walk and demeanor would indicate a considerable degree of
intoxication, might be mentally clear and unruffled and even stimulated
by intoxicants to precise mental co-ordination and reasoning. Again,
there are persons, as to whom a witness, after stating that he had
observed them, and after stating the particular matters and things in
which such persons were engaged, might with apparent accuracy state
that they acted rationally or irrationally, and yet such persons might
nevertheless, upon further examination, be found to have been acting
according to a particular custom or habit, or idiosyncrasy of long
years’ standing. Thus it is apparent that in each of these cases,
when the witness attempts to state what, out of necessity, the court
treats as a fact—viz., whether a given person is or is not angry,
or intoxicated, or irrational—the witness is really testifying to
the result, in his own mind, of his observations of the condition
and conduct of the person who is under investigation, when compared
with a standard which the witness has erected for himself. Hence such
results are really matters of opinion evidence, pure and simple. Other
examples of a like character are found in statements as to weight,
height, distance, speed, and the like, as to which men of common
powers of observation, who are not strictly experts, are, because
of convenience and necessity and the probability of reasonable and
ordinary accuracy, commonly permitted to give their own judgment and
conclusions as evidence.

_All Witnesses Often Permitted to Draw and State Conclusions in Matters
involving Numerous and Complicated Details._—Thus the practical
necessity of the administration of justice has led to the establishment
of the rule, that where the details of an occurrence are numerous and
complicated, and are incapable of precise description by ordinary
observers, witnesses are permitted to use, in testifying, general
expressions which really embody their conclusions from the facts or
details observed by them. Greenleaf on Evidence, Section 440, note A;
Wharton on Evidence, Section 434.

Wharton says that “the distinction between expert witnesses and
ordinary witnesses is this: the non-expert witness testifies 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
determined only by special scientists.” See also People _v._ Fernandez,
35 N.Y., 49. People _v._ Deacons, 109 N.Y., 374-382.

This learned writer (Wharton) also says, at Section 437 of the same
treatise:

“Where conclusions depend upon facts whose evidential weight can only
be determined by those familiar with a particular specialty, then these
conclusions may be given by experts in such specialty.” Such also is
the exact derivative meaning of the word expert, it being derived from
the Latin word “_expertus_,” meaning, literally, “experienced,” and
hence skilled by experience.

_Functions of an Expert Witness Essentially Judicial._—It is the
function of an expert witness to reason about facts, to explain their
connection with one another, and to draw conclusions and inferences
from them. Hence, a witness, however expert in any ordinary sense in
his specialty, when he is called upon merely to narrate facts which he
has observed, is an ordinary witness, and is governed by the same rules
which apply to the ordinary witnesses. When, however, he is called
upon, in addition to recounting facts, to explain or interpret them by
reference to assumed facts, he becomes properly an expert witness. It
thus appears that an expert witness must necessarily perform a part
of the duties which devolve upon the court or the jury. His position
is, therefore, essentially judicial, except that he has no power to
enforce his determinations by judicial process. The importance and
responsibility which the law thus confers upon an expert are of the
highest character. He ranks the coequal with the tribunal itself in his
peculiar province, so far as relates to his individual responsibility.
That this should tend to elevate such witnesses to a high social
position, and ought to require the most exact and faithful integrity of
purpose and statement, is self-evident.

_Difference Between Status of Expert Witnesses in France and Germany
and in the United States and England._—In some foreign countries,
notably in Germany and in France, experts in medico-legal matters have
an assured official position, and are generally not allowed to be
selected at hap-hazard according to the will or the length of the purse
of those who need their services. The consequence of this method of
obtaining expert evidence is, that expert witnesses in those countries
command a high measure of respect and honor.

Unfortunately, however, in this country, where the opposite practice
prevails, the weaknesses of human nature are such that the common
people, newspapers, lawyers, and even the courts in some recorded
opinions and decisions, have come to express a great want of confidence
in the weight and value of expert testimony. This deplorable result
of a bad system of procedure is universally recognized, yet our State
legislatures have as yet refrained from attempting to correct it.

Hence, in considering the value of expert testimony _in matters of
medical jurisprudence_, it must be conceded, in the first instance,
that the difference between the system prevailing in this country
and in England, and that which prevails on the Continent, notably in
Germany and France, has not tended to raise but to depress the value of
such testimony in the first-named countries. In the latter countries,
the experts upon medico-legal questions are officers of the court,
or are treated as such. They form, in a sense, a part of the judicial
system, and the expression of their opinions consequently carries with
it great weight. Moreover, under the system which prevails there,
it has been possible for men to be educated up to a high degree of
skill and experience in the particular branches of physiological or
psychological or physical investigations which they pursue, while here
in America, and to a certain extent also in England, experts are such
for other reasons, and by the operations of other causes, than the fact
of their permanent employment in that capacity. As a general thing they
become skilled in their profession or in the particular branches of
it in which they practise as specialists, and are summoned to testify
simply because they are selected by one party or another to a lawsuit.

_Mr. Wharton’s View of this Question in the Main Hostile to the
Prevailing System Here._—The effect of the methods which thus prevail
has not been entirely to the advantage of the medical profession or of
our courts. Wharton, in his work on “Evidence,” Section 454, observes
upon this point: “When expert testimony was first introduced it was
regarded with great respect. An expert was viewed as the representative
of a science of which he was a professor, giving impartially its
conclusions. Two conditions have combined to produce a material change
in this relation. In the first place it has been discovered that no
expert, no matter how learned and incorrupt, speaks for his science as
a whole. Few specialties are so small as not to be torn by factions,
and often the smaller the specialty the bitterer and more inflaming and
distorting are the animosities by which these factions are possessed.
Particularly is this the case in matters psychological, in which there
is no hypothesis so monstrous that an expert cannot be found to swear
to it on the stand, and to defend it with vehemence. ‘_Nihil tam
absurdo_,’ which being literally translated means that there is nothing
so absurd that the philosophers won’t say it! In the second place,
the retaining of experts by a fee proportioned to the importance of
their testimony is now as customary as is the retaining of lawyers. No
court would take as testimony the sworn statement of the law given by
counsel retained on a particular side, for the reason that the most
high-minded men are so swayed by an employment of this kind as to lose
the power of impartial judgment; and so intense is this conviction that
in every civilized community the retention by a judge of presents from
suitors visits him not only with disqualification but disgrace. Hence
it is that, apart from the partisan character of their opinions, their
utterances, now that they have as a class become the retained agents
of the parties, have lost all judicial authority and are entitled only
to the weight which sound and consistent criticism will award to the
testimony itself. In making this criticism a large allowance must be
made for the bias necessarily belonging to men retained to advocate
a cause, who speak not as to fact but as to opinion, and who are
selected, on all moot questions, either from their prior advocacy of
them or from their readiness to adopt the opinion to be proved. In this
sense we may adopt the strong language of Lord Kenyon, 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.”

This author then proceeds to show that under the civil law system the
conclusions of experts were formerly treated as unassailable facts,
but under the English and American common law system this is not the
case, but their testimony is to be weighed by the court. He says:
“The grounds on which the conclusion is reached may be asked for: the
expert’s capacity for drawing conclusions, as well as his premises,
may be assailed. Cases of conflict are to be determined, not by the
number of witnesses, but by the weight of their testimony, and though
the opinion of an expert of high character may be entitled to great
respect, yet if questioned, its authority must ultimately rest upon the
truth, material and formal, of the reasoning on which it depends.”

Judge Davis, of the Supreme Court of Maine, in Neil’s case (cited
in Wharton and Stille’s “Medical Jurisprudence,” Vol. I., Section
294), said: “If there is any kind of testimony that is not only of no
value, but even worse than that, it is in my judgment that of medical
experts. They may be able to state the diagnosis of a disease more
learnedly, but upon the question whether it had at a given time reached
a stage that the subject of it was incapable of making a contract, or
irresponsible for his acts, the opinions of his neighbors, of men of
good common sense, would be worth more than that of all the experts in
the country.”

Such stinging criticisms as these, and others which might be cited,
of a like character, may not be always merited. It is certain that
medical experts’ opinions, if fully enlightened by scientific research
and free from partisan bias, ought to occupy a position like that
of judicial opinions in weight and decisiveness upon the questions
submitted to them. Such was the position occupied in the public
estimation, and in that of judges and counsel, by the great Dr. Caspar
in Germany, and Foedere or Pinel, and others since their time, in
France. But this position was acquired chiefly because of the fact
already mentioned, that under the system of administration of justice
which prevails in those countries these great men were regarded, and
acted, as a component part of the judicial system. They were called
in as officers of the law to assist the court in forming a judgment,
and determining disputed questions of fact, in cases involving life
and death, or the devolution of property, where scientific experience,
knowledge and skill, not possessed by judges or by counsel, was
necessary for the determination of the questions involved. The root
of the evil in America is, as already pointed out, to be found in
the system which allows parties to retain and pay their own experts
without any substantial restrictions. Sooner or later, among the other
reforms in our judicial system, it will be found necessary to reform
this evil by the enactment of laws requiring that the witnesses in
medico-legal cases, particularly those in which a crime is alleged
to have been committed, shall be designated by the court, or by some
public authority, and paid from the public treasury instead of by
the parties. Such experts would then occupy their proper position of
special counsel, advising and assisting the legal counsel and the
court, but they would not be taken out of this sphere and put in the
utterly inconsistent one of witnesses. Their status and their duties
would be as clearly distinguished from that of expert witnesses as now
known, as the status and duty of the lawyer are from the status and
duty of the judge. The present system has been said to be very much
like putting a lawyer, who has just argued his client’s case, on the
bench to decide it. Whether experts should be appointed as permanent
government officials, like our judges, or should be selected specially
for each case like juries, referees, or arbitrators, and in the latter
event whether they should be nominated by the parties and selected by
the court from such nominees, or otherwise, are all questions of detail.

Our judges and lawyers seem slow to recognize the fact that the duties
of experts are judicial, or at least quasi-judicial; to pass upon
certain facts which neither the court nor the jury can understand
without their aid. But, as we have seen from the citations just given,
judges and lawyers have fully recognized the unreliability of expert
testimony, produced as it now is in England and in this country at
the whim and selection of the parties and paid for, much or little,
according to the means of the parties.[181]

_Method of Preliminary Examination of Experts—On Medical Questions a
Licensed Physician Presumed Competent._—As the system exists here, the
only power that the court has over the selection of an expert, is to
determine, in advance of his testimony and of the elucidation of his
opinions, whether or not he is competent as an expert. But this power
affords little or no check or restriction, because in the effort to get
all the light that is possible upon the questions under consideration,
and to avoid unduly interfering with counsel in the conduct of the
case at bar, the practice has become universal, and is recognized in
the decisions and text writers, of permitting any medical man who has
a license to practise his profession, to testify as an expert, and to
give his opinion as such on any question cognate to his profession.
This is so without regard to the amount of study and experience he
may have had in the particular matter under consideration. The naked
fact that he is licensed to practise is enough. He then—that is,
after testifying that he is a practising physician—is clothed with
the garment of authority. The only way in which his knowledge can be
tested is by cross-examination as to his experience and skill, and
possibly by contrasting him as he appears upon the witness-stand and
his history as he gives it, with other and more or less experienced and
skilful men who follow him.

The rule is, that when a witness is produced to give an opinion on a
medical question, he is interrogated by the counsel who produces him
as to his qualifications. At this point, before he is allowed to give
his opinion, it is proper and customary that the counsel upon the other
side of the case should be allowed an opportunity to cross-examine
as to his competency, and then the court determines whether or not
he is a competent witness. If the court pronounces him competent, a
hypothetical question is put to him stating the facts of the case, as
the counsel interrogating him claims them to be established by the
evidence, and the expert is then asked to give his opinion on the
question at issue, based upon an assumption that the facts stated are
truly stated. Then the opposing counsel has the right to cross-examine,
and to ask his views and opinions upon the same question at issue, but
assuming as true other and different facts or premises, as he claims
them to be established by the evidence. This often involves a test of
wit and intelligence, and of forensic acumen, between the counsel and
the witness, which serves very little useful purpose, except perhaps to
elucidate more strongly than has been here stated the defects of the
system which now obtains. It is also not unusual, and in fact is the
result of the workings of human nature, that under the manipulations of
counsel skilled in cross-examination, skilled in methods of indirection
in stating facts, and armed with the powerful weapon of the rule
which permits them to insist upon a categorical yes-or-no answer to a
question, the jury and the court become confused, the witness loses
his temper, or becomes affected more strongly than ever before by bias
against his persecutors, as he feels them to be, and the examination
ends in a farce. This is not always the case, and the illustration
given is an extreme one. Like the citations from judicial criticism of
expert testimony which have been given, these matters are only adverted
to here as danger signals, a warning to both professions, and with an
earnest suggestion of the necessity of reform.


EXPERTS, HOW SUMMONED INTO COURT.

_They Must Obey the Summons and Appear and be Sworn. In General they
need Not Give their Opinions unless Duly Compensated._—An expert
witness is brought into court like an ordinary witness by the usual
process of the court. This process is, under the American system, an
ordinary subpœna, and, being process of the court, whether or not he
has been paid or promised compensation for giving his opinion he must
obey the process to the extent at least of appearing in court when
called, to be sworn. Interesting questions have been raised as to his
obedience to the subpœna to the extent of testifying when he has not
been compensated. It has been argued, and the argument is sustained
by the decisions of courts of high authority in some States, that
his knowledge and skill, acquired by study and by experience, is his
property, of which he cannot be deprived without just compensation,
under his constitutional rights guaranteed to him by the organic law
of this country. On the other hand, in some other States it has been
held that he is so far a necessary part of the judicial system that he
may be called upon to give the results of his experience, knowledge,
and skill forming his opinion, without payment other than the ordinary
compensation to witnesses. It is believed, however, that the better
opinion is the former; that he does not stand on the same footing as
an ordinary witness, whose province it is to testify solely to matters
of observation of fact, but that he stands in the position of one who
has something to give; something to impart in the way of knowledge or
experience, which is his property as much as any other thing movable or
immovable of which he is possessed.

A somewhat different question has arisen in the case of a witness who,
like a family physician or attending physician, has learned facts
and has been paid for his attendance, or who exacts payment for his
attendance, as a physician from his patient, and this question is;
when such a professional man has been called upon to testify to the
information he thus attained, whether he can be asked for, and required
to give, opinions based on those facts? Necessarily, having learned the
facts by observation, such as the appearance, symptoms, and actions of
the patient, he is, when testifying as to these matters, nothing more
or less than an ordinary witness, because he is testifying to matters
of observation. As to these matters public policy requires, except so
far as it has been modified, or rather extended, by our statutes which
forbid testimony as to privileged communications, that he must testify,
the same as any other witness. But suppose that, having so testified to
the facts, he is asked to give his opinion; for example, in an insanity
case, whether the symptoms that he found in his patient led him to the
belief as a professional man of experience and skill that his patient
was sane or insane. The question is, Can he be compelled to give that
opinion, if he chooses to decline to give it without the promise or
assurance of further compensation than the mere _per diem_ fee and
mileage of an ordinary witness? The best authority is to the effect
that he must so testify, the reasoning of the court being that his
opinion is only a part of what he derived from his original relation of
physician to his patient. Wright _v._ The People, 112 Ill., 540; same
case, 33 Alb. L. J., 79.

_Same Rule in Civil and Criminal Cases._—The rule is the same whether
the professional man is called to testify as an expert in civil or
criminal cases. In either one he is not obliged to give an opinion as
such, independent of a personal knowledge of the facts in the case,
without being paid or assured reasonable compensation therefor. His
proper course of conduct is, when he has obeyed the subpœna and is in
the presence of the court and has been sworn, and the questions put
by counsel disclose that the object of his examination is to elicit
from him an opinion, to state to the court that he has not been paid
any other compensation than that of an ordinary witness, and that he
respectfully declines to give an opinion in the case as an expert,
without compensation proportionate to the value of his opinion.[182]

_Whether Witness Competent a Question for Court in Limine._—After
the expert is placed upon the stand, as we have seen, the counsel
upon the side of the case by which he is summoned interrogates him
as to his capacity, the purpose of the interrogation being that his
answers shall qualify him and show him to be an expert. Whether or
not he is an expert so as to permit the giving of his opinion as
part of the case to go to the jury, is for the court to decide _in
limine_, that is, at the threshold, and as a matter of discretion, and
the exercise of that discretion, if fair and reasonable, will not be
disturbed upon appeal by the higher court. It is permissible, but also
discretionary, after the counsel calls the witness and has apparently
qualified him, for the counsel upon the other side to cross-examine
the witness as to his qualifications before he is examined in chief,
with a view of determining whether or not there are limitations upon
those qualifications which should prevent the court from permitting him
to testify as an expert. The general rule is as stated by Greenleaf
in his work on Evidence, Sec. 440, that it is not necessary that the
medical expert should have actually practised his profession. Nor is it
essential that the witness should belong to any particular school of
medicine. The law does not undertake to pass upon conflicting theories
of medical practice, in determining the question of the qualification
of a medical expert. It is proper, however, for counsel to inquire as
to what school of medicine the witness is an adherent, because of its
importance in weighing the value of his testimony after it has been
given.

_Persons Not Duly Licensed Sometimes Held Not Competent._—It has
also been a mooted question in those States where it is necessary, in
order to enable a person to practise physic or surgery, that he should
be licensed, whether a person practising without a license, however
extensive his reading and practice, would be considered qualified as
an expert witness in a court of justice. This point, so far as diligent
examination discloses, has not been determined in any reported case,
although it has been suggested at _nisi prius_ and has been, in one
instance within the knowledge of the writer, decided that he is not
to be considered an expert in matters involving medical knowledge and
skill. The reasoning of the court was that the policy of the State
is to prohibit persons not possessing the qualifications required
to obtain a license, from acting in any capacity as professors and
practitioners of medicine or surgery. If the witness is a member of
the profession, legally qualified as such, it has been held that he is
sufficiently qualified as an expert if he shows that he possesses the
average ability of members of his profession. Hall _v._ Costello, 48
N. H., 176; Tellis _v._ Kidd, 12 Ala., 648; Wharton on Evidence, Sec.
446; Rogers on Expert Testimony, Secs. 17 and 18; Slocovich _v._ Orient
Mutual Ins. Co., 108 N. Y., 56.

As to the question whether it is necessary that the witness should
actually have practised his profession, see the last-cited text-writer,
Secs. 43 and 44, who seems to have entertained views opposite to those
stated by Professor Greenleaf.

Wharton on Evidence, Sec. 439, states the rule as follows: “He must
have special, practical acquaintance with the immediate line of inquiry
more than a mere vague, superficial knowledge. But he need not be
acquainted with the _differentia_ of the specific specialty under
consideration.... A general knowledge of the department to which the
specialty belongs would seem to be sufficient.”

_Interested Persons may still Testify as Experts._—Since the law
forbidding interested persons from being witnesses has been changed,
it has been suggested that an interested person although otherwise
qualified might not be a competent witness to give an opinion as an
expert. But the established doctrine is that he may give such an
opinion; the weight of it, however, would be for the jury to determine.
Greenleaf on Evidence, Redfield’s edition, Sec. 440, citing Lockwood
_v._ Lockwood, 2 Curtis, 309; Dillon _v._ Dillon, 3 Curtis, 96, 102.
See also Dickinson _v._ Fitchburg, 13 Gray, 546.

_Testimony of Expert, how Impeached._—Sometimes, on cross-examination
or otherwise, the fact becomes known that the witness who is proposed
as an expert has expressed an opinion on the subject in hand contrary
to that which he has given upon the witness-stand, and the question has
been raised as to establishing that fact at the outset and before his
testimony goes before the jury, in order to enable the trial judge to
determine whether he is competent. The rule in that case is that the
testimony as to his prior expression of opinion is not to be received
at that time, but will come properly up as rebuttal, he having been
asked upon his cross-examination, giving time and place, whether he
has made the statements attributed to him. An expert witness may in
other respects be impeached like any other witness, that is, by the
oaths of persons who know him and have known his reputation, and who
testify that his reputation for truth and veracity is bad and that they
would not believe him under oath. He may also be impeached by producing
witnesses to prove that his special knowledge or technical skill is
not reliable or adequate to the undertaking which he has assumed. But
this testimony must be from personal knowledge of the man and not
from general reputation. Wharton on Evidence, Sec. 437; Le Rose _v._
Commonwealth, 84 Pa. St., 200.[183]

_General Rule as to Required Amount of Skill and Experience
Stated._—The general rule may be stated thus, as derived from these
and other authorities:

The extent of the previous study and investigation, and the amount of
skill and information which must be shown, will depend upon the facts
of each particular case. But some special and peculiar knowledge or
skill must be established, the amount of it to be determined by the
trial judge in his discretion. The possession of such knowledge and
skill is presumed in medico-legal cases if the witness is a licensed
practitioner.

_Some Practical Suggestions as to Conduct of Witnesses on the
Stand._—In this preliminary examination, the conduct and demeanor
of the witness are of no little importance, because it is then and
there that he makes his first impression upon the court and jury.
He should be perfectly open and unreserved in stating his means of
special information, in explaining what are the limits of his personal
experience and the extent of his reading; but, at the same time, it
would be well for him to avoid all appearance of self-glorification
and all tendency to exaggerate his individual acquirements. Often has
it occurred that expert witnesses of undoubted capacity and honesty,
who are unfortunately grandiose and self-assertive in their manner,
have, however honest and able they might be, lost entirely their weight
with the court and jury by undue self-complacency and exaggeration of
their personal qualifications, during their preliminary examination.
This is a matter requiring tact and judgment and nerve, and should be
fully understood between counsel calling him and the witness, before
the witness is placed upon the stand. In that event, it will be quite
safe for the witness to closely follow the questions of counsel by his
answers, and to volunteer little or nothing. If his answers are not
full and complete enough, counsel can renew the question in the same or
in other form or carry the matter into greater detail. If, on the other
hand, his answer is too full or he appears too eager, he may create
a prejudice against him which nothing can overthrow, and which the
art of counsel upon the other side in cross-examination and in making
comments upon his testimony when summing up before the jury, will very
effectually use to destroy his weight as an expert.[184]

_Scope and Extent of Examination of Expert Witnesses._—Having stated
how experts may be summoned and qualified, it remains to consider the
scope and extent to which they may be examined.

The advancement of the sciences and the progress of research in special
fields of knowledge have made expert testimony of large importance
during the present century. The basis of its admission is the fact
that there are certain processes of reasoning which an ordinary jury
is incapable of performing, even with the assistance of courts and
lawyers. Oftentimes in the administration of justice in our courts,
proof is given of circumstances which although admitted would have
little or no significance in the mind of an ordinary juror, and
which he would be unable to contrast and compare with other facts,
successfully, without the aid of those more familiar with scientific
matters and the inductive process of reasoning than he is. In such
cases it is necessary that the jury should be specially enlightened
by persons who have, through training, skill and experience, acquired
the power to enlighten them. A common instance and illustration of
this matter is to be found in the case of homicide by poisoning. A
human body is found dead; externally there may be no _indicia_ to
show positively the cause of death. Under such circumstances the
laws of all civilized countries permit what is called a post-mortem
examination by skilled physicians, who, finding no external evidences
of the cause of death, are permitted by the officers of the law to
remove the internal portions of the body for special and careful
examination. If this discloses traces of inflammation or of lesions of
an abnormal character, further power is vested in the authorities to
have at the expense of the State a chemical examination of the internal
organs. If this examination, which is necessarily long and excessively
technical, results in the discovery of any poisonous substance, such
as would produce death, and if it is found in sufficient quantities to
produce death, these persons who made the post-mortem examination and
discovered the outward indications of the administration and effects
of the poison, and the chemists who discovered the poison itself in
the tissues of the body, in sufficient quantities to produce death,
are called as experts before the jury. The post-mortem examiners
explain what the appearance of the body was, as distinguished from the
appearances of the body of an individual who had died from natural
causes. The chemist describes his course of experimentation, the
various deductions which he made from his experiments, the tests which
he applied in his investigation in discovering poison, and is then
allowed to testify that the poisonous substance was found in sufficient
quantities to produce the physical appearances which the post-mortem
examiners have described, and to accomplish the death of the human
being in whose body the poison was found. It is obvious that the power
of observation and the skill, which the skilled chemists and physicians
used as the basis of their reasoning in this case, were such as an
ordinary man, unskilled and inexperienced, would not possess, and the
ability to use them must have come from the study of treatises on
such subjects, and from teaching and experience, to such an extent as
to entitle the persons so testifying to be considered by the courts
as qualified to express an accurate and sound opinion on the matters
and things under investigation. Thus it appears how, in such cases, a
departure became essential to the successful administration of justice,
from the strict rule that witnesses shall testify solely to matters of
fact and observation, and why it has long been considered that some
witnesses must be allowed to testify to opinions and conclusions.

Again, in a like case, a body is found bearing evidences of wounds or
bruises. The question to be determined is whether they were inflicted
before or after death; if before death, whether they were sufficient to
cause death. Some wounds and injuries might be sufficiently apparent
and dangerous so that the common, inexperienced eye would at once
detect that they were sufficient to cause death. But in most instances
this is not the case, and in such instances the testimony of experts
is required by the necessity of the case, to show that the wounds and
injuries were sufficient to cause death.

_The General Rules Stated as to Subjects for Expert Testimony._—Hence
the general rule is, that wherever the facts to be investigated
are such that common experience and knowledge of men do not enable
them to draw accurate conclusions, but are such that the study and
experience of specialists do enable such specially endowed persons to
draw accurate conclusions, then the inferences and deductions they
have drawn can be testified to by those who qualify themselves before
the court as persons having sufficient skill and experience as such
specialists to entitle them to give opinions. The cases in which expert
testimony is permitted to be given are set forth in Rogers on Expert
Testimony, Sec. 6, quoting from Jones _v._ Tucker (41 N. H., 546), as
follows:

“1. Upon questions of science, skill, or trade, or others of like kind.

“2. Where the subject-matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a correct judgment
without such assistance.

“3. Where the subject-matter of investigation so far partakes of the
nature of science as to require a course or previous habit of study in
order to the attainment of knowledge of it.”

So also Chief Justice Shaw of the Supreme Court of Massachusetts, in
New England Glass Co. _v._ Lovell (7 Cushing, 319), said:

“It is not because a man has a reputation for sagacity and judgment
and power of reasoning that his opinion is admissible in testifying
as a witness. If so, such men might be called in all cases to advise
the jury, and it would change the mode of trial; but it is because a
man’s professional pursuit, or his peculiar skill and knowledge of some
department of science not common to men in general, enable him to draw
inferences where men of common experience, after all the facts have
been proved, would be left in doubt.”

To the same effect see Muldowney _v._ Illinois Central R. R. Co., 36
Iowa, 472; Wharton on Evidence, Sec. 436; Greenleaf on Evidence, Sec.
441.

_Qualifications of this General Rule._—The extent to which an expert
witness can go in giving his opinion is limited to matters of science
and skill, and does not extend to the expression of views on matters
of legal or moral observation, or the manner in which others would
probably be influenced if the parties had acted in one way rather than
in another. Campbell _v._ Richards, 5 B. & Ad., 345.

So it has been held that the question whether a physician has honorably
and faithfully discharged his duty in a given case, either to his
medical profession or to his patient, is not a question of science but
of pure ethics, upon which the jury is as competent to decide as any
one else, and in such a case an opinion would not be allowed to be
given either by another medical practitioner or by a professor in the
science of morals. Rogers on Expert Testimony, Sec. 11, citing Ramadge
_v._ Ryan, 9 Bing., 333.

There are also some matters of fact which apparently transcend the
dividing line between common experience and judgment and scientific
experience and judgment, as to which expert testimony is not
receivable, but the jury and court must weigh the facts and draw the
inferences for themselves. An interesting example of this is found in
the case of Manke _v._ The People, 78 N. Y., 611 (17 Hun, 410), cited
in Stephens’ “Digest of the Law of Evidence,” p. 107, note H, decided
in the New York Court of Appeals a few years ago. In that case one
Adolf was killed by a gunshot, and pieces of paper were found near the
scene of the homicide bearing certain marks. An expert was called upon
to say whether they were powder-marks, and whether the condition of the
paper was such that in his opinion it was wadding which had been fired
from a gun. This evidence was held to be inadmissible by the General
Term of the Supreme Court, and this decision was affirmed by the Court
of Appeals. These courts held that the question as to whether this was
a wad fired from a gun was a matter which the jury was as competent to
judge of as the witness. In delivering the opinion at General Term,
Presiding Justice Talcott said that this case was very close to the
border line, but in his judgment it was beyond the province of experts
and within the province of jurors.

Nevertheless, in that case the evidence of chemists who had examined
the wadding, and had discovered the marks on it which were said to
be powder-marks, and upon analysis had determined that they were
powder-marks, or that they were marks of powder which had exploded,
would have been clearly admissible.

The subjects concerning which medical men may be called upon to
testify as experts are as numerous as the diseases, injuries, mental
and physical conditions of the human race which fall within the range
of the practice of medicine and surgery. It is therefore practically
impossible to give them in detail.[185]

_Practical Suggestions and Admonitions Embodied in Rules._—It
is deemed advisable that the following practical suggestions and
admonitions to physicians, concerning their duties as expert witnesses,
shall here be given.

First: A physician should refuse to testify as an expert unless he is
conscious that he is really qualified as an expert.

Second: After accepting the responsibility, his first duty should be
to make a diligent examination and preparation for his testimony,
unless it is upon a subject with which he is familiar and which he
is satisfied that he has already exhausted, by reading the best
authorities that he can find, and by careful reflection upon particular
questions as to which his opinion will be asked.

Third: Where he is to make an examination of facts, such as the
post-mortem examination of a body, a chemical analysis or an
examination of an alleged insane person, he should insist upon having
plenty of time and full opportunity for doing his work thoroughly. He
should take particular pains to make his examination open and fair,
and, if possible, should invite opposing experts to co-operate with him
in it.

Fourth: He should be honest with his client before the trial in
advising him and giving him opinions, and upon the trial should
preserve an absolutely impartial attitude, concealing nothing,
perverting nothing, exaggerating nothing.

Fifth: On the preliminary examination as to his qualifications as a
witness he should be frank and open in answering questions. He should
state fully the extent and the limits of his personal experience and of
his reading upon the subject, without shrinking from responsibility,
yet without self-glorification.

Sixth: He should be simple, plain, and clear in his statement of
scientific facts and principles, avoiding the use of technical
language, and trying to put his ideas in such form that they will be
grasped and comprehended by men of ordinary education and intelligence.

Seventh: He should avoid stating any conclusions or principles of which
he is not certain, but having an assurance that he is right he should
be firm and positive. He should admit the limitations of his knowledge
and ability. Where a question is asked which he cannot answer, he
should not hesitate to say so; but he should refuse to be led outside
the subject of inquiry, and should confine his testimony to those
scientific questions which are really involved in the case, or in his
examination of the case.

Eighth: And finally, he should always bear in mind that at the close
of his testimony an opportunity is usually given to him to explain
anything which he may be conscious of having said, which requires
explanation; and partial statements which need a qualification to make
them a truth. This is the physician’s opportunity to set himself right
with the court and with the jury. If the course of the examination has
been unsatisfactory to him, he can then, by a brief and plain statement
of the general points which he has intended to convey by his testimony,
sweep away all the confusion and uncertainty arising from the long
examination and cross-examination, and can often succeed in producing
for the first time the impression which he desires to produce, and can
present the scientific aspects of the case briefly and correctly.

Probably no man was ever so gifted as to be able in practice to carry
out all of these principles in giving medical testimony. If he could,
he would be the ideal expert witness. But the principles are, after
all, simple and easily followed in the main. Any physician who knows
his subject and who has a clear head and the ordinary faculty of
expression, by observing these principles can make himself invaluable
as an expert witness. There is no branch of the profession which brings
a broader fame, greater influence, or larger emoluments than this.
There is no branch, on the other hand, in which men of real ability
make more lamentable failures.



CHAPTER VI.

MALPRACTICE.


DEFINITION.—MALPRACTICE may be defined to be—

1st. Wilful acts on the part of a physician or surgeon toward a person
under his care, by which such person suffers death or injury;

2d. Acts forbidden by express statute, on the part of a physician or
surgeon, toward a person under his care, by which such person suffers
death or injury;

3d. Negligent acts on the part of a physician or surgeon in treating a
patient, by means of which such patient suffers death or unnecessary
injury.

These various divisions will be considered in the order in which they
are above set forth.

=Wilful Malpractice.=—The cases which fall within the first two
divisions of this definition are such acts as render the medical
man liable to punishment in a criminal prosecution, and may not
necessarily, although in some instances they may, constitute grounds of
liability in a civil suit against him.

As examples of the first class of cases may be cited those instances,
happily not numerous in the annals of the profession, where a physician
or surgeon when treating a female patient has had carnal connection
with her, representing that he was using that method of treating her to
cure her disease. Such a case was Reg. _v._ Case, 1 Eng. Law & Eq., 544
(s. c., 1 Den. C. C., 580).[186]

_Honest Intent no Defence in Such Cases._—In Reg. _v._ Reed, 1 Den.
C. C., 377 (s. c., 2 Car. & K., 967), it was contended as a defence
that the defendant really believed that he was curing his patient by
treating her in this extraordinary way. The Court, per Wildes, C. J.,
brushed aside this contention with scorn, saying: “The notion that a
medical man may lawfully adopt such a method of treatment is not to
be tolerated in a court of justice;” and in this case and in others,
convictions have been sustained for the crime of rape or of attempting
to commit rape.[187]

Another example of wilful malpractice would be wilful neglect of a
patient by his medical attendant, who became intoxicated voluntarily,
though this will generally come under the second subdivision, as most
states and countries have enacted statutes making it a criminal offence
to practise medicine or surgery when intoxicated.

=Acts Forbidden by Statute.=—Within the second subdivision of the
definition, or acts declared unlawful by statute, fall the cases
of committing or attempting to commit an abortion, and cases of
prescribing for or treating a patient by one voluntarily intoxicated.
If the abortion is attempted without the knowledge or consent of the
woman, and under the pretence of performing a necessary operation upon
her to cure disease, undoubtedly the physician would be liable to a
criminal prosecution by the State for the offence of committing an
abortion and to civil action by her to recover damages. If the abortion
was committed with her consent, while she would have no right of action
against him for damages, he would be liable to criminal prosecution
under the statute.

_Abortion Not a Crime by the Common Law._—At common law it was not
a crime to commit an abortion with the mother’s consent if the child
had not quickened. In Mitchell _v._ Com., 78 Ky., 204 (s. c., 39
Am. Reports, 227), the Court, per Hines, J., says: “After a patient
investigation we are forced to the conclusion that it was never called
a punishable offence at common law to produce, with the consent of the
mother, an abortion prior to the time when the mother became quick with
child. It was not even murder at common law to take the life of the
child at any period of gestation, even in the very act of delivery.”
See also Evans _v._ People, 49 N. Y., 86.

The inhumanity and danger to society of this rule became manifest at a
very early period, and both in England and in this country statutes
were adopted, varying somewhat in the degree and kind of punishment and
in the nomenclature of the crime, but all of them making the offence
of committing an abortion, no matter at what stage of gestation, a
crime.[188]

_The Common-Law Doctrine Criticised._—Professor Elwell in his valuable
work on “Malpractice, Medical Evidence and Insanity,” pp. 250, 251,
makes the following remarks upon this subject: “The idea once existed
quite generally, and it still exists to some extent, that there is no
offence in destroying the embryo or fœtus before there is a manifest
knowledge of life by the mother, derived from motion of the child
called ‘quickening.’ How absurd to suppose that there is no life
until the mother can feel the muscular motions of the child! As well
might we deny the vitality of the blood because it cannot be felt.
The muscular tissues, and even the bones to which they are attached,
must have some degree of substance before there can be motion, and of
course this development depends upon life. Though this foolish notion
is now fully exploded in medicine, it still lingers in the popular
mind, and doubtless leads to much crime. The life of the fœtus or
embryo immediately after conception is just as positive physiologically
as at any subsequent period. Quickening being an incident or sign
in the course of development of the fœtus, it indicates not the
commencement of a new state of existence, but only a new manifestation
of pre-existing life.... It is uncertain in its appearance, sometimes
coming on at three months, sometimes at six months, and sometimes not
at all.”

_Legal Definitions of Terms, “Quick with Child,” etc._—In Evans _v._
People, 49 N. Y., 86, following R. _v._ Wycherly, 8 C. & P., 262,
it was held that a woman is “quick with child” from the period of
conception after the commencement of gestation, but is “pregnant with
quick child” only when the child has become “quickened in the womb.”
This distinction has been discussed in State _v._ Cooper, 2 Zab., N.
J., 52, and since the Evans case, the same court in New York State has
held that the expression, “woman with child,” means “pregnant woman.”
Eckhardt _v._ People, 83 N. Y., 42 (s. c., 38 Am. Rep., 462).

_Death of Child by Abortion._—If, in attempting to produce an
abortion, the child is caused to be born alive but before the end of
the period of gestation, and when it is not capable of sustaining life,
and it dies, the person producing the abortion and bringing the child
into the world at this time and in this manner is guilty of murder.
Wharton’s Crim. Law, sec. 942; Rex. _v._ West, 2 Cox Crim. Cases, 500;
Com. _v._ Brown, 14 Gray, Mass., 419.

_Death of Mother by Abortion._—So also where in consequence of
producing an abortion the death of the mother occurs, the person
producing the abortion is guilty of murder at common law. 4
Blackstone’s Com., 201; 1 Bishop’s Crim. Law, 328. In some of the
States, however, these offences are declared to be only manslaughter.

Further consideration of the subject of abortion will be had under that
title in another part of this work.

_Statutes Generally Except Abortions Necessary to Save Life._—It
should be noted here, however, that nearly all the statutes which
define and punish the crime of abortion, or the crime of manslaughter
or murder committed in consequence of abortion, declare that when it is
necessary to produce a miscarriage in order to save life, the act of
doing so is excepted from the effect of the statute.

=Negligent Malpractice.=—Under the third subdivision of the
definition, viz., when by reason of the negligent acts on the part
of the physician or surgeon the patient suffers death or unnecessary
injury, may be placed the most numerous cases of malpractice, according
to the generally accepted meaning of the term.

_Criminal Liability for Negligent Malpractice._—It is manifest that
not every degree of negligence which causes death or injury ought to
render the physician or surgeon liable to indictment and punishment
for a crime. The general theory of the criminal law is based upon the
doctrine that in order to constitute a crime there must be either
an intent to do the wrong, or such a degree of negligence in the
performance of a given act as to supply the place of the intent to do
wrong, and require punishment for the protection of society, upon the
ground that the carelessness of the defendant is so great as to make
it necessary and proper to punish him, in order to deter others from
following his example.

_Doctrine of Leading Case of Com. v. Thompson._—In Com. _v._ Thompson
(6 Mass., 134), Parsons, C. J., observes: “There was no evidence to
induce the belief that the prisoner by his treatment intended to
kill or injure the deceased and the ground of express malice must
fall. It has been said that implied malice may be inferred from the
rash and presumptuous conduct of the prisoner in administering such
violent medicines. Before implied malice can be inferred, the judges
must be satisfied that the prisoner by his treatment of his patient
was wilfully regardless of his social duties, being determined on
mischief.... To constitute manslaughter, the killing must have been the
consequence of some unlawful act. Now there is no law which prohibits
any man from prescribing for a sick person with his consent; and it is
not a felony, if through his ignorance of the quality of the medicine
prescribed, or of the nature of the disease, or of both, the patient,
contrary to his expectations, should die. The death of a man killed by
voluntarily following a medical prescription cannot be adjudged felony
in the party prescribing unless he, however ignorant of medical science
in general, had so much knowledge or probable information of the fatal
tendency of the prescription that it may be reasonably presumed by
the jury to be an act of wilful rashness at least, and not of honest
intention and expectation to cure.”

_The Doctrine of the Thompson Case Too Broad._—This lax statement
of the law, made by the learned chief justice in this case, has been
much doubted and criticised. It appears to be unsound in the length to
which it goes in requiring, in order to constitute criminal liability,
what may be termed excessive gross carelessness or wilful gross
carelessness. It apparently runs counter to the prevailing opinions of
the English judges, and to the later decisions of the courts in the
United States, although it is followed and approved in Rice _v._ The
State, 8 Mo., 561.

In Rex _v._ Long (4 Car. & P., 308-310), Park, J., said: “I call it
acting wickedly when a man is grossly ignorant and yet affects to cure
people, or when he is grossly inattentive to their safety.”

So in Rex _v._ Spiller (5 Car. & P., 353), the Court said: “If a
person, whether a medical man or not, professes to deal with the
life and health of another, he is bound to use competent skill and
sufficient attention; and if he causes the death of another through
gross want of either he will be guilty of manslaughter.”

Bishop, in his work on Criminal Law, lays down the rule that not every
degree of carelessness renders a practitioner liable to criminal
prosecution, and that it must be gross, or, as more strongly expressed,
“the grossest ignorance or most criminal inattention.”[189]

Nevertheless he quotes with approval (2 Bishop Crim. Law, 264) the
remark of Willes, J., that a medical man is taking a leap in the dark
if he knew he was using medicines beyond his knowledge; and also the
remarks of Bayley, J., in Rex _v._ Simpson (1 Lewin, 172), who said in
that case: “I am clear that if a person not having a medical education,
and in a place where a person of a medical education might be obtained,
takes it upon himself to administer medicines which may have an
injurious effect, and such medicines destroy the life of the person to
whom they are administered, it is manslaughter. The party may not mean
to cause death, or the medicine may produce beneficent effects, but he
has no right to hazard medicine of a dangerous tendency when medical
assistance can be obtained. If he does, he does it at his peril.”[190]

_Gross Negligence Defined._—In general it may be stated that gross
negligence is necessary to constitute criminal liability, but this may
be predicated upon, or inferred from, such want of ordinary care and
skill as shows gross ignorance, or such want of attention as indicates
wilful disregard of the well-known laws of life and health.[191]

_Gross Negligence Resulting in Injury a Misdemeanor._—It has also been
held that although death does not but injury does ensue, as the result
of gross negligence or inattention, that constitutes a misdemeanor
punishable criminally.[192]

_In Determining Degree of Negligence Circumstances and Conditions
Govern._—It should be noted, however, that the circumstances and
conditions attending the act of alleged criminal malpractice should
be given much weight. So also should due weight be given to the
advancement of knowledge and education in the world in general, and
in the medical profession in particular. In an early English case,
one of the judges remarked that not as much knowledge and skill could
be expected of a surgeon or physician in a sparsely settled country
district as in a city, and that he was at a loss to know what degree
of knowledge and skill should be required of such a person. But in
Gram _v._ Boener, 56 Ind., 447, Worden, J., said: “It seems to us that
physicians or surgeons practising in small towns, or in poorly or
sparsely settled country districts, are bound to possess and exercise
at least the average degree of skill possessed and exercised by the
profession in such localities generally. It is not true, as we think,
to say that if a physician and surgeon has exercised such a degree
of skill as is ordinarily exercised in the particular locality in
which he practises, that would be sufficient. There might be but few
practising in the given locality, all of whom might be quacks, ignorant
pretenders to knowledge not possessed by them, and it would not do
to say that because one possessed and exercised as much skill as the
other, he could not be chargeable with the want of reasonable care and
skill.”[193]

_Unlicensed Practitioner Causing Death Guilty of Manslaughter._—Since
the adoption by most civilized states and countries of the salutary
practice of regulating by statute the practice of medicine and surgery,
and forbidding persons not duly licensed from practising, and making it
a misdemeanor to violate any of these statutes, it is clear that any
person not having the requisite medical education and a license, who
attempted to administer drugs and medicines or to perform operations,
and through want of ordinary knowledge and skill caused the death of
another, would be held guilty of manslaughter, because he brought about
the death while he himself was engaged in a violation of the law. In
some states where no discrimination in this respect is made between
misdemeanors and felonies, the crime would be murder, punishable by
death; and it has always been the law that an empiric or quack holding
himself out as a regular physician is bound to have and exhibit the
degree of skill and care which he professes, and will be strictly held
to the standard of skill of educated and licensed medical men.[194]

As to the legal meaning of the term “ordinary care and skill,” and the
rules of evidence applicable in cases of malpractice, a full discussion
will be had below, when considering the subject of civil liability for
malpractice.


CIVIL LIABILITY FOR MALPRACTICE.

Any person holding himself out to be a physician or surgeon, or any
physician or surgeon, who is guilty of malpractice, is liable for
damages, to be recovered in a civil action, instituted by the person
injured, or by those having a legal right to such person’s services.
This is so whether the injured person actually employed the defendant
to prescribe or treat him, or not. The liability flows out of the
relationship, without regard to the element of employment, and it may
result from negligence in treatment, or in prescribing, or in giving
information and instructions to the patient as to how to take care of
himself when under treatment. The rules of law applicable to the duties
of a physician to his patient are stated and the authorities supporting
them cited in Chapter IV. of this work.[195]

=Ordinary Care and Skill Only Required.=—The leading cases in America
on the subject of civil liability for malpractice are: Leighton _v._
Sargent, 7 N. H., 460, and Carpenter _v._ Blake, 60 Barb., 485 (s. c.
on appeal, 75 N. Y., 12). In the former case the Court said: “In a
science encumbered with so many sources of error and difficulties, it
is obvious what cause we have for proceeding with the utmost caution,
and for advancing from step to step with the greatest circumspection.
It is in consideration of those peculiar difficulties that beset and
encompass the physician and surgeon, that all enlightened courts have
held that but ordinary care and skill shall be required of them, and
that mere errors of judgment shall be overlooked, if the general
character of treatment has been honest and intelligent, and that the
result of the case shall not determine the amount of the responsibility
to which he is held; and that when unskilfulness or negligent treatment
of his patient is charged to a surgeon, it is not enough to show that
he has not treated his patient in that mode or has not used measures
which in the opinion of others, though medical men, the case required;
because such evidence tends to prove errors of judgment, for which the
defendant is not responsible, as much as it goes to prove a want of
reasonable skill and care for which he may be responsible. Alone it is
not evidence of the latter, and therefore a party must go further and
prove, by other evidence, that the defendant assumed the character and
undertook to act as a physician without the education, knowledge, and
skill which entitled him to act in that capacity.”

In Carpenter _v._ Blake, upon the last appeal (75 N. Y., 12), it was
said that the reasonable ordinary care and diligence which the law
requires of physicians and surgeons is that which persons engaged in
the same general line of practice have and exercise in like cases.[196]

_Story’s Statement of the Rule._—Story in his work on Bailments, p.
433, with his usual felicitous method of statement says: “In all cases
where skill is required it is to be understood that it means _ordinary_
skill in the business or employment which the bailee undertakes; for
he is not presumed to undertake for extraordinary skill, which belongs
to a few men only in his business or employment, or for extraordinary
endowments or acquirements. Reasonable skill constitutes the measure of
the engagement in regard to the thing undertaken.”

_Occult Influences Should be Considered by Lawyers and Judges._—In
this connection it should be borne in mind by lawyers and judges, that
in the case of a physician treating disease, or a surgeon repairing
an injury, occult influences frequently play a most important part.
Professor Elwell in his work on Malpractice, etc., p. 25, lays great
stress on this element of uncertainty. He says: “In the case of
physicians, surgeons, attorneys, etc., another and important element
besides skill enters into the result, and for this reason the degree
of responsibility is to a certain extent and in a manner indicated
and influenced. This important element is the operation of causes and
influences over which the practitioner has but little or no control.
They are occult, and no human foresight is able to anticipate them
before they have completely deranged and materially interfered with
his plans by bringing about a different result than that confidently
depended upon.”[197]

_Change and Advancement in Medical Knowledge also to be
Considered._—It should on the other hand be clearly understood that
the constant change and improvement which are going on in medical and
surgical education, in the discovery of new remedies and new methods
of treatment, and in the invention of new instruments, tend constantly
to elevate the average skill and intelligence of the profession, and
with them the standard by which the courts will determine liability for
negligence. What would have been, but a few years ago, fully recognized
by the courts as ordinary skill in the treatment of disease and the
performance of operations, would now be regarded as antiquated and less
than ordinary skill, because of the advancement in the knowledge of
means which can be devoted to the treatment of disease and injury.[198]

We have already seen that what is the degree of skill to be required
of one practising in a small town or a country district sparsely
inhabited, and what is required in the case of a city practitioner, may
differ to some extent with the circumstances. Quacks and pretenders,
however, must be judged by the standard of regular practitioners.[199]

=Degree of Care and Skill a Mixed Question of Law and Fact.=—What
constitutes reasonable care and skill is a mixed question of law and
fact, like any other question of negligence. Where the evidence is
undisputed and no conflicting inferences can be drawn from the facts
presented, it is the duty of the Court to determine whether or not
there is sufficient proof of want of ordinary care and skill to be
submitted to the jury. Where, however, the evidence is conflicting on
that point, or the inferences to be drawn from the facts established
might be differently drawn by different men having the same opportunity
for observation, and the same circumstances before them, it is for
the jury to say whether or not the defendant has exercised reasonable
care and skill, guided by proper directions from the Court as to the
measure of skill required. This involves the question as to how far
the practitioner is bound to be familiar with the methods, appliances,
drugs, and methods of treatment of his profession in general.[200]

_Experimentation Not Permissible._—Experimentation, whether upon
charity patients or pay patients, is equally prohibited by well-settled
rules of law. In other words, a departure from known methods of
treatment for the purpose of or by way of trying unknown remedies, or
operations not usually adopted by the profession, if an unfortunate
result occurs, renders the defendant liable (McNevins _v._ Lowe, 40
Ill., 209).


MEASURE OF DAMAGES.

The measure of damages in cases of malpractice may vary with the kind
of malpractice. In the case of wilful malpractice, the element of
gross negligence justifies punitive or retaliatory damages, in those
States where any such damages are allowed. That is, damages which will
not only compensate for the injuries inflicted, but which will, by
punishing the wrong done, tend to repress similar acts in the future.
The tendency of the courts and of legal authority of the present time
is, however, to limit as often as possible the cases in which punitive
damages are allowed, upon the theory that if a grossly negligent act is
committed it will require criminal prosecution, and that the strong
arm of the State should be invoked to punish the wrong, rather than to
line the pocket of the injured person.

On the other hand, in cases of malpractice, damages for want of
ordinary care and skill are recompensed as in any other cases of
negligence. They may include loss of time of the patient, inability
to earn his living, such sum as the jury thinks is reasonable to be
given as a compensation for the extra pain and suffering, and, where
the injury is permanent, such further sum as will indemnify the
patient for the injury or deformity which he may suffer on account of
the defendant’s neglect. Citation of authority upon this question of
damages is almost unnecessary.[201]

_Liabilities of Partners, etc._—It has been held that where two
physicians were partners, and one of them committed an act of negligent
malpractice, both were liable in a civil court for damages.[202]

But the declarations of the partner who is guilty of the negligent act,
made as to the act committed, and in the absence of the other partner,
are not admissible as against the other partner. And so also is the
rule as to declarations of the partner who committed the act after its
commission as to the propriety of the treatment, and opinions expressed
by him in reference thereto.[203]

It has also been held that one surgeon who recommends the employment of
another during his absence from town is not liable for acts committed
during his absence.[204]

_Suits for Injuries to Married Women and Minor Children._—When the
person injured is a married woman, her husband may sue for loss of
services on account of malpractice, and when the injured person is a
minor child the parent may sue as in any case of negligence. A third
person, such as the husband of a woman injured by malpractice, or
the father of minor child so injured, can only recover the value of
the services thereby lost, and in some cases the enhanced expense of
medical attention and nursing thereby rendered necessary.

=Inspection of the Injured Person at the Trial—Before Trial
Improper.=—In an action in which the injury is to a portion of the
body which may be seen, such as the shortening of a limb on account of
improper treatment of a fracture, the limb may be exhibited to the jury.

It has been much discussed whether the defendant in a malpractice or
other negligence case can compel the plaintiff to permit his person
to be examined by physicians before trial, to enable the defendant to
know the full extent of the injury so far as it is perceptible. In
the latest cases the examination of plaintiff before trial was not
allowed.[205]

In 1877 the Supreme Court of Iowa in the case of Schroder _v._ C.,
R. I. & P. R. R. Co., 47 Iowa, 375, held that the court had inherent
power and jurisdiction to compel the plaintiff to submit to such an
examination.

This decision has been followed by the courts of several of the western
and southern States, while in others the power has been denied. These
cases will be found fully collected in Roberts _v._ O. & L. C. R. Co.
and in U. P. R. R. Co. _v._ Botsford cited above.

The ground of the decision of the United States Supreme Court and of
the New York Court of Appeals seems to be, that in the absence of
legislative provision permitting a court to order such an examination,
it has no inherent power to do so, and did not derive any such powers
from the common-law courts of England, which never had exercised such
powers.

In some of the cases which deny the right to compel such examination,
it is claimed that if such a statute was passed as would confer upon
the courts power to compel such an examination, the statute would
be unconstitutional, and much is said in those decisions about the
sacredness and immunity of the person. It seems difficult, however,
to understand why such statutes should be considered as differing in
any respect from statutes permitting orders for the examination of
witnesses and parties before trial, or for the discovery and inspection
of books and papers, and the like, which statutes have been enacted for
many years and have never been held to be unconstitutional. Surely an
honest suitor having a just claim for damages for personal injuries
would not object to such an examination, because the result would
often strengthen his case, while a dishonest suitor having a false
and unmeritorious claim ought to be exposed and have his false claims
defeated, in the interests of justice and truth. On the other hand,
a suitor who was honestly mistaken in his belief that he had been
disfigured or injured by an act of malpractice might often discover his
mistake, and be saved the annoyance and expense of defeat after a trial
in open court.

Some of the most frequent cases of alleged malpractice, brought before
the courts, are those in which it is claimed that a fractured limb
has been improperly set, with the result that it becomes crooked or
shortened; when the fact is, as is conclusively shown by Prof. Frank
H. Hamilton in a paper published by him many years ago, and quoted
with approval by Professor Elwell, in his work on Malpractice, etc.,
that the percentage of cases, in certain kinds of fractures, in which
perfect results are obtained by even the most eminent surgeons, is very
small. In such cases as these the true state of affairs might often be
disclosed by careful inspection prior to the trial. On the whole more
good than harm would seem to be the probable outcome of permitting such
examinations, in malpractice cases, if not in all cases of alleged
personal injuries.

=Evidence in Malpractice Cases.=—The prevailing trial practice in
malpractice cases is to prove the condition of the patient prior to
the employment of defendant and at the time the treatment in question
began, the methods of treatment adopted, and instructions given,
and the condition of the patient during and after such treatment,
and then to place other physicians on the witness-stand, and put to
them hypothetical questions involving the facts as established by
the evidence, and calling upon them to state whether the method of
treatment adopted indicated proper skill and care, or even the usual
and recognized methods of the profession.[206]

In some States evidence of the general reputation of the defendant for
skilfulness or the contrary is held admissible. In other States such
evidence is held inadmissible (see Vol. XIV., Am. and Eng. Encyclopædia
of Law, p. 83, and cases collected in Note 6).

=Contributory Negligence.=—In conclusion it should be stated that
the patient is bound to follow obediently all proper directions given
him by his physician or surgeon, as to his diet, mode of life, time
of taking and quantity of medicine to be taken, or the care of a
diseased or injured member. Any disobedience of such directions which
contributes to prevent a recovery will bar him from his right of action
for malpractice, even though the medical man may have been somewhat
negligent. In short, the same rule as to contributory negligence
applies in this as in any other case of negligence. This principle has
been so long and so well settled that citation of authority in support
of it is unnecessary.



THE LAW OF EVIDENCE

CONCERNING

CONFIDENTIAL COMMUNICATIONS

BETWEEN

PHYSICIAN AND PATIENT.

BY

CHARLES A. BOSTON,

_Counsellor-at-Law, of the New York City Bar_.



CONFIDENTIAL COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.


PRIVILEGED COMMUNICATIONS.

CONFIDENTIAL communications between physician and patient not
infrequently may relate to matters that are the subjects of inquiry
before judicial tribunals. When these communications are by law
excluded from disclosure in evidence, they are termed _privileged_
communications. When such a disclosure is forbidden it is upon grounds
of public policy,[207] “because greater mischiefs would probably result
from requiring or permitting its admission, than from wholly rejecting
it.”


COMMON LAW.

The common law required an inviolable secrecy to be observed by
attorneys with reference to the communications which they had received
from their clients.[208] But writers upon the law of evidence state
that under the English rule protection from disclosure in evidence in a
court of justice was not extended to communications between a medical
man and his patient.[209]

_Reasons for the Rule._—It does not clearly appear, in any of the
cases usually cited as authority, why the distinction is made between
legal and medical advisers, but it is apparent that the privilege does
not rest upon considerations of honor nor of confidence,[210] nor
even upon the urgency of the situation under which the communication
is made; for disclosures are made to a physician frequently to save
life, or to a priest for reasons of eternal import, while those made
to an attorney insure at most protection from temporal annoyance.
The privilege of attorneys seems to be founded upon considerations
of public policy in the administration of justice in the courts;
attorneys are a part of the system, as are grand jurors, petit jurors,
and judges,[211] and even arbitrators;[212] but physicians are no
part of that system, and a disclosure of confidences made to them in
no way tends to weaken the system or render it ineffectual, while the
compulsory examination of lawyers would tend to the suppression of
the truth in litigation by discouraging confidence between attorney
and client. This, perhaps, can be assigned as the reason for the
distinction; a distinction which does not differentiate lawyers from
physicians, but agents in the administration of justice from all
others.[213]

_Criticism of the Rule._—Though the privilege of attorneys was adopted
to enforce respect for the law as securing the rights of persons
entitled to its protection, by establishing inviolable confidence
between them and the officer who represents them in their dealings
in the law, and though it was not the purpose of the law to enforce
sentiment or to elevate one profession above another, the sentimental
idea did not suffer neglect for the want of advocates. Justice Buller
lamented the narrowness of the rule,[214] and Mr. Best has criticised
it as harsh in itself, of questionable policy, and at variance with the
practice in France and the statute law in some of the United States of
America.[215]


THE RULE IN THE UNITED STATES.

It is to be assumed, in the absence of statutes varying the rule, and
of decisions to the contrary, in the several States of the United
States, that in those States which derived their law from England the
same rule of evidence obtains as that above enunciated. But many of the
legislatures have by statute extended the privilege to communications
between physicians and their patients, as well as to other specified
confidential communications which it does not fall within the scope of
this work to discuss.[216]

_States and Territories in which there are No Restrictive
Statutes._—The following States and Territories have no statute
restricting the nature of the disclosures which a physician may be
compelled to make in a court of justice: Alabama, Arizona, Connecticut,
Delaware, District of Columbia, Florida, Georgia, Illinois, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire,
New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Vermont, Virginia, and West Virginia.[217]

_States and Territories in which there are Restrictive Statutes._—The
following States and Territories have statutes restricting disclosures
by physicians: Arkansas, California, Colorado, Idaho, Indiana, Indian
Territory, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana,
Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, South Dakota, Utah, Washington, Wisconsin, and
Wyoming.[218]

_The Rule in United States Courts._—In trials at common law in the
courts of the United States, the laws of the several States, except
where the Constitution, treaties, or statutes of the United States
otherwise require or provide, are regarded as rules of decision.[219]
Section 858 of the Revised Statutes of the United States prescribes
rules with reference to competency notwithstanding color and interest
of witnesses, and in actions by or against executors, administrators,
or guardians, and then provides that “in all other respects the laws of
the State in which the court is held shall be the rules of decision as
to the competency of witnesses in the courts of the United States in
trials at _common law_, and in _equity_ and _admiralty_.” Accordingly
it has been held by the Supreme Court of the United States that in
an action in the Circuit Court of the United States for the Southern
District of New York, on a policy of life insurance, the evidence of a
physician, inadmissible under Section 834 of the New York Code of Civil
Procedure, was properly excluded.[220] But in criminal prosecutions in
United States Courts, the privilege secured by State statutes does not
avail.[221]


THE STATUTES.

As the effect of these statutes depends largely upon their language,
the construction put upon the law in one State is chiefly serviceable
in interpreting that of another State in those particulars where the
two are similar.

_Statutory Declarations of Policy._—A comparative view of the several
laws shows that in the following States and Territory there are
declarations of policy prefixed to the prohibition of disclosures,
that show the reason of the enactment, namely: California, Colorado,
Idaho, Minnesota, Montana, North Dakota, Oregon, South Dakota, and
Utah.[222] The declaration is to the effect that there are particular
relations in which it is the policy of the law to encourage confidence
and to preserve it inviolate, and that therefore the prohibition of the
statute is laid.


ANALYSIS OF THE STATUTES.

The common purpose of the statutes is to restrict the rule compelling
disclosures so as to protect communications with a physician in his
professional capacity; but the limit to which the protection is
extended differs in the various States. An analytic comparison of the
statutes tends to show how far the interpretation of one is useful in
construing another.

_I. Nature of the Exclusion._—In California, Idaho, Minnesota,
Montana, North Dakota, Oregon, South Dakota, Utah, and Washington the
statutes apply only to testimony in civil actions.[223] The other
statutes make no distinction between civil and criminal proceedings.

The active words are of course different in the several statutes, but
they indicate a purpose to extend a privilege that the person entitled
to it may insist upon maintaining, with the single exception of the
law of North Carolina, which provides that the presiding judge of a
superior court may compel a disclosure, if in his opinion the same is
necessary to a proper administration of justice.

Some of the statutes show clearly that it is the patient’s privilege,
and suffer the patient or his representatives to waive it, either
expressly or by conduct which the law declares to amount to a
waiver.[224] Others are silent on this subject.

In California, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska,
Nevada, New York, North Dakota, Ohio, Oregon, South Dakota, Utah,
Washington, and Wyoming, it is expressly provided that the patient’s
consent is necessary before a disclosure will be permitted.

In Colorado, Kansas, Oklahoma, and Oregon, if the patient offer himself
or a physician or surgeon as a witness, that is to be deemed a consent.

In Nevada, in any suit or prosecution for malpractice, if the patient
or party suing or prosecuting shall require or give consent, and any
physician or surgeon shall give testimony, then the defendant may call
any other physicians or surgeons as witnesses without the consent of
the patient or party suing or prosecuting.

In Ohio and Wyoming, if the patient voluntarily testify the physician
may be compelled to testify on the same subject.

_II. The Witness._—In Indiana, Ohio, and Wyoming the privileged
witness is termed a _physician_; in the other States and Territories,
the privilege extends to a _physician_ or _surgeon_.

In Arkansas and Indian Territory the privilege is secured to a person
_authorized to practise_ physic or surgery; in California, Montana,
and Nevada, to a _licensed_ physician or surgeon; in Colorado, to a
physician or surgeon _duly authorized_ to practise his profession
_under the laws of the State_; in Michigan, New York, North Carolina,
and Wisconsin, to a person _duly authorized_ to practise physic or
surgery; in Minnesota, Oregon, and Washington, to a _regular_ physician
or surgeon; in Iowa and Nebraska, to a _practising_ physician or
surgeon; in the remaining States and Territories, these statutes do not
in terms distinguish between licensed and unlicensed practitioners.[225]

In New York, by the amendment of 1893 to Sec. 836 of the Code of Civil
Procedure it is provided that in an action for the recovery of damages
for a personal injury the testimony of a physician or surgeon attached
to any hospital, dispensary, or other charitable institution, as to
information which he acquired in attending a patient in a professional
capacity in such institution, shall be taken before a referee. It
does not appear whether this amendment is intended to take away the
privilege, or merely to regulate the manner of taking such testimony
when it is otherwise admissible.[226]

_III. The Evidence._—The character of the communications which
are privileged differs under the several statutes. In Arkansas,
California, Colorado, Idaho, Indian Territory, Michigan, Minnesota,
Missouri, Montana, Nevada, New York, North Carolina, North Dakota,
Oregon, South Dakota, Utah, Washington, and Wisconsin, they are
characterized as _information_; in Indiana, as _matter committed_; in
Iowa and Nebraska, as _confidential communications_; in Kansas, Ohio,
Oklahoma, and Wyoming, as _communications_; in Iowa and Nebraska, it
is further provided that they be _properly intrusted_; and in Kansas
and Oklahoma, that they be with reference to a _physical_ or _supposed
physical disease_.

In Kansas and Oklahoma, any knowledge obtained by a _personal
examination_ of a patient is also expressly privileged.

In Indiana, Ohio, and Wyoming, _advice_ given by the physician is
covered by the protection.

In Arkansas, Indian Territory, and Missouri, the privilege is limited
to information acquired _from the patient_; and in Kansas and Oklahoma,
to communications made _by the patient_.

The statutes of Arkansas, California, Colorado, Idaho, Indian
Territory, Indiana, Michigan, Minnesota, Missouri, Montana, Nevada,
New York, North Carolina, North Dakota, Oregon, South Dakota, Utah,
Washington, and Wisconsin expressly limit the protection to matter
acquired while attending in a professional capacity; and all of these,
save Indiana, as well as Iowa and Nebraska, confine the privilege to
information necessary to enable the witness to prescribe or act for the
patient.

In New York it is provided that “a physician or surgeon may upon a
trial or examination disclose any information as to the mental or
physical condition of a patient who is deceased, which he acquired
in attending such patient professionally, except confidential
communications and such facts as would tend to disgrace the memory of
the patient, when the protection has been expressly waived on such
trial or examination by the personal representatives of the deceased
patient, or if the validity of the last will and testament of such
deceased patient is in question, by the executor or executors named
in said will, or the surviving husband, widow, or any heir at law,
or any of the next of kin of such deceased, or any other party in
interest.”[227]

The notable characteristics of the several statutes which thus far
have been pointed out are discernible in the express language of the
acts. In writing or using any treatise or compilation on privileged
communications between physician and patient, it is to be constantly
borne in mind that the privilege is of statutory origin; that the
statutes are often dissimilar; and that the value of a judicial
interpretation of one law in the construction of another varies with
the dissimilarity.


JUDICIAL INTERPRETATION OF THE STATUTES.

The judicial decisions which are discussed here are those that deal
with the privilege secured by the restrictive laws. The analogy between
the privilege of a client with regard to his attorney’s disclosures,
and that of a patient with regard to the testimony of his physician, is
not so complete as to make it essential to present here, for the sake
of their bearing upon the subject now under consideration, a study of
the principles to be deduced from the numerous decisions with reference
to attorneys as witnesses. The analogous cases of clergymen and priests
are also beyond the scope of this treatment.

_Rules of Construction._—The restrictions are in derogation of the
common law[228] and in accordance with the rule of interpretation
ordinarily adopted should be strictly construed,[229] but the courts
have generally looked at the policy of the enactments, and have
construed them so as to preserve inviolably the confidence existing
between physician and patient, without narrowing their effect to a
strict interpretation of their language.

In Indiana, under a former law which protected matters _confided_, it
was said that the statute should be given a broader scope than the
word _confided_ in a strict sense imports, so as to cover matters
learned by observation and examination.[230] But, though the statute
in terms absolutely prohibits a disclosure, it has been said, in
Indiana, that it gives no right to the physician to refuse to testify
where the patient waives the privilege,[231] and that it creates
no absolute incompetency, because to hold otherwise would result in
obstructing justice without subserving the purpose of the statute.[232]
In Missouri, there is a dictum that the privilege should be carefully
limited to what the statute requires, not so much because it is in
derogation of the common law as because it is in exclusion of the best
evidence, on the ground of privilege;[233] but in this very case, the
real question was whether the word _oral_ should be construed into
the statute so as to exclude from its protection information acquired
by inspection and observation, and it was held that no such narrow
interpretation was proper. In a later case the narrowing dicta of
the foregoing opinion were disapproved,[234] and subsequently the
disposition to make a liberal construction was shown by the highest
court of the State, although a general rule of interpretation was not
announced.[235] In New York, the rule that a statute in derogation
of the common law is strictly construed does not apply to the Code
of Civil Procedure.[236] But before the enactment of this statutory
rule[237] there was a tendency to interpret liberally the law
prohibiting disclosures.[238] In Arkansas the tendency seems to be to
construe the law strictly.[239] The spirit of interpretation will be
more fully illustrated in the discussion of particular cases which
follows.

In New York it was claimed that the protection afforded by the statute
is nullified by the provision for the examination of a party before
trial,[240] but it was held that the statutes are consistent and the
physician cannot be made to disclose, though his patient may be.[241]


CLASSES OF ACTIONS.

_Criminal Actions and Evidence of Crime in Civil Actions._—The
statutes confining the restriction to civil actions have been cited
above.[242] In Iowa, in an action for breach of promise to marry,
it was said that the privilege does not extend to the protection of
advice for the commission of a crime.[243] In New York the rule was
at first embodied in the Revised Statutes of the State,[244] but
upon the adoption of the Code of _Civil_ Procedure it was included
therein,[245] and subsequently the provision of the Revised Statutes
was repealed.[246] In that State by law the rules of evidence in civil
cases are applicable also to criminal cases, except as otherwise
expressly provided;[247] and the statutes provide no different rule in
criminal actions as to this class of evidence. Notwithstanding this
fact, however, it has been said by the Court of Appeals, in a case
where there was an attempt to screen a murderer by insisting that
his victim’s physician was not a competent witness as to information
acquired by him while attending his patient,[248] that the design
of the law was to enable the patient to make known his condition to
his physician without the danger of disclosing what would annoy his
feelings, damage his character, or impair his standing while living,
or disgrace his memory when dead, but that it was not intended to
protect a murderer rather than to shield his victim; and quoting from
the opinion of Talcott, J., in the court below,[249] the Court said:
“The purpose for which the aid of the statute is invoked is so utterly
foreign to the purpose and object of the act and so diametrically
opposed to any intent which the legislature can be supposed to have
had in enacting it, so contrary to and inconsistent with its spirit,
which most clearly intended to protect the patient and not to shield
one who is charged with his murder; that in such a case the statute is
not to be so construed as to be used as a weapon of defence to a party
so charged instead of a protection to his victim.” Accordingly it was
held that the evidence was not to be excluded under the statute. But
the rule is still applicable to criminal actions. In a later case,
where the accused was indicted for abortion, the same court held, that
where the patient was living and the disclosure tended to convict her
too of crime or to cast discredit and disgrace upon her, the evidence
of her physician as to information acquired by him in attendance
upon her was inadmissible in the trial of the man charged with the
crime.[250] In a still later case,[251] the General Term of the Supreme
Court held, where the accused was on trial for murder and he had
confided to a physician what he had done, that the physician could not
disclose the confidence. The rule deducible from these decisions seems
to be that in New York the privilege extends to criminal actions, even
though they be trials for murder, and even though the person accused
be the patient, but that the statute will be applied only for the
protection of the patient, and where it is apparent that no injury can
possibly be done to the patient or his memory by the admission of the
evidence, and the interests of justice demand the disclosure, for the
punishment of a person for an injury done to the patient involving a
violation of the criminal law, and the patient is not alive to waive
the privilege, that the disclosure is not forbidden.

In New York efforts have been made to exclude from the operation of
the statute other classes of actions, to which it has been urged that
the reasons for the enactment do not apply, or in which the mischief
alleged to be wrought by its enforcement has been suggested as ground
for believing that the legislature could not have intended to include
them. Of these, actions for divorce on the ground of adultery are one
class; but it has been held that they constitute no exception.[252]

_Testamentary Causes._—In New York it was long supposed that the
policy of the law excepted probate proceedings; it was so held by
the Surrogate of New York City;[253] and also by the General Term
of the Supreme Court,[254] by which it was stated that the practice
had prevailed for a half-century in will cases,[255] but the Court
of Appeals,[256] has decided that testamentary cases constitute no
exception to the rule, the judge who delivered the opinion stating
that there is no more reason for allowing secret ailments of a patient
to be brought to light in a contest over his will than in any other
case, and that if mischief be wrought by the law the remedy lies with
the legislature and not with the courts. The legislature has since
afforded the remedy,[257] but not to the extent of adopting the rule of
the earlier cases. In Indiana, in an action to set aside a will, the
testimony of the testator’s physician has been excluded.[258] And in
Michigan and Missouri it seems that testamentary cases are no exception
to the general rule.[259]

_Lunacy and Habitual Drunkenness._—It has been claimed in New York
that inquisitions of lunacy are an exception, and recently it has been
held that the alleged lunatic’s physician may testify as to his mental
condition because no one is better qualified to testify,[260] but this
decision seems to be at variance with the principle of the decisions
of the Court of Appeals with reference to testamentary cases, and
presents no satisfactory reason for a distinction. In a similar case in
the Supreme Court, Chambers, it was held that a medical attendant at an
asylum could not testify.[261] It has also been held that a physician
cannot make an affidavit as to the appearance and condition of his
patient to support a petition for the appointment of a committee for
him as an habitual drunkard.[262]

_Fraud._—Still another class of actions in which contending principles
have been invoked to make an exception in the law of privilege, is
actions on life-insurance contracts. The contract of insurance is
_uberrimæ fidei_, and the defence of fraud in the application is
frequently interposed to defeat a claim under a policy. Medical
testimony would often be the most satisfactory evidence to establish
the fraud, and efforts have been made to introduce it under that
excuse, but without avail. In the case of Dilleber _vs._ Home Life
Insurance Company, in the Supreme Court of New York at General
Term,[263] the question seems to have been directly before the
court, and Davis, P. J., dissenting, insisted that the suppression
of a physician’s testimony ought not to be permitted so as to cover
up a fraud, but the majority of the court held otherwise; the case
was subsequently overruled, but not on the ground urged by Justice
Davis.[264] The number of insurance cases in which the rule has been
enforced seems to leave it beyond question that it will not be relaxed
for the purpose of establishing fraud,[265] although that announcement
has not been specifically made. There seems no reason that the rule
should be relaxed in that regard when it is not relaxed to establish
the crime of the patient; though the mischief that may be done in such
cases is apparent.[266]

_The Witness._—The statutory provisions as to the professional
status of the witness whose testimony is excluded have already been
shown.[267] The facts which establish the relation of physician
and patient will be treated later.[268] The witness is a member of
a profession, but there is very little discussion in the cases as
to what constitutes a physician or surgeon.[269] The language of
the statutes as well as their policy and intent has been said to
plainly embrace a physician who casually or in any way attends and
prescribes for a patient, whether he be a family physician or the usual
medical attendant or not.[270] The spirit of the acts would protect
communications made to any person attending the patient in the accepted
capacity of physician or surgeon wherever that might have happened,
though the letter would confine it in some instances to duly authorized
or duly licensed persons. It does not seem to have been established
whether such authority or license must have been granted under the
laws of the State where the trial is conducted, nor how the several
statutes apply to communications made elsewhere, especially in States
or countries where authority or license to practise is not required by
law.

It has been said with reference to the New York law that it is
absolutely necessary that the witness should be a _duly qualified_
physician;[271] and it has been held that the words “duly authorized”
mean those persons who are not prohibited by the penal code from
practising, so that an unlicensed physician may be compelled to
disclose confidential communications.[272] Whether the same rule would
be applied with reference to information obtained in another State by
a physician duly authorized to practise there although prohibited from
practising in New York, is a question that is suggested as a case
within the reason of the law but outside of its letter, and one which
does not seem to have been answered.

In New York, in an action by a physician for compensation for his
services, it was held that a person who merely answered for a physician
at his office in his absence, and was not himself a physician, is not a
witness whose testimony is privileged.[273]

In Missouri it has been held that a drug and prescription clerk is
not a privileged witness.[274] The question arose in the same State,
whether a dental surgeon is forbidden to testify under the statute, but
its determination was not essential to the judgment and it was left
unanswered.[275]

To establish the privilege it is necessary that the person who insists
upon it to exclude testimony should show by competent evidence that the
witness belongs to the class privileged under the law.[276] But where
the physician testified that he was a regular practising physician and
attended in that capacity, and he was not examined further as to his
due authority, it was held that a failure to produce his license could
not be urged on appeal as reason for compelling him to testify.[277]
The Court said that if the privilege were the physician’s he might, if
the objection were taken, be required to prove by the best evidence
that he was duly authorized, but as it is the patient’s privilege, in
the absence of objection to the sufficiency of the proof, the patient
is entitled to the benefit of the presumption that the physician had
the license which the law requires to entitle him to practise.


WAIVER OF THE PRIVILEGE.

_Who may Waive._—Those States in which the law provides for a waiver
have been enumerated;[278] in others the courts have determined that
the privilege of waiving is implied in the reason for the law. In
Indiana it has been held that although the statute contains in terms
an absolute prohibition, it creates no absolute incompetency and
the privilege may be waived by the person for whose benefit it is
made or his legal representative.[279] Under the Michigan law it
was claimed that the physician is forbidden to reveal confidences
even though he have his patient’s consent, but it has been held that
the law only creates a privilege on the same footing with other
privileged communications, which the public has no interest in
suppressing when there is no desire for suppression on the part of
the person concerned.[280] In Missouri too the patient may waive the
privilege.[281]

The protection vouchsafed by the law is designed for the benefit of the
patient, and therefore the physician himself cannot waive it.[282] The
patient can disclose his own physical condition if he so desires.[283]

But the physician cannot refuse to testify if the patient waives the
privilege.[284]

The patient can waive the privilege during his life.[285]

As it existed prior to 1891 the New York law provided that the
prohibition should operate unless it was expressly waived upon the
trial or examination by the patient.[286] This was interpreted to mean
that the patient himself was the only person who could make a waiver;
and that, therefore, the possibility of waiver ceased with the death
of the patient, while the privilege of secrecy continued unabated,
so that those claiming under the deceased patient could not waive
the privilege, nor insist upon the testimony of the physician, even
though their interests were in jeopardy on account of his silence.[287]
It seems, however, that a patient can during his lifetime waive the
privilege, the waiver to take effect after his death.[288] The express
waiver required by the statute may be given by the patient’s attorney,
because of the nature of the attorney’s agency in conducting an action
for the patient.[289]

None of the other statutes are in the exact terms of the New York
statute, but those of California, Colorado, Idaho, Minnesota, Montana,
Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington,
and Wyoming provide that the testimony shall not be given unless the
_patient_ consent; in Iowa, the waiver provided for is that of the
_person_ in whose favor the prohibition is made; and in Nebraska, of
the _party_ in whose favor the provision is enacted.

In Indiana, the privilege extends beyond the death of the patient, and
it may be waived by the party who may be said to stand in the place of
the deceased and whose interests may be affected by the disclosure.[290]

In Michigan, what the patient may do in his lifetime, those who
represent him after his death may also do for the protection of
the interests which they claim under him.[291] In Missouri the
representatives of the patient may waive;[292] and where the dispute
is between devisees and heirs at law all claiming under a deceased
patient, either the devisees or heirs may call the attending physician
of the testator as a witness regarding information acquired by him in
his professional attendance.[293] In Nevada it has been said that the
parents of a seven-year-old infant, may waive for the infant.[294]

_Objections to the Admission of Privileged Communications; When and
by Whom Made._—Having considered who can waive the privilege, it
is material to discuss also the question who may insist upon the
enforcement of the law. If the protection were only enforced on the
claim of privilege by the patient, the very object of the statutes
would be defeated in the large majority of instances because of the
absence of the patient and every one interested in his behalf to
assert his right. It rests, therefore, with any party to raise the
objection and assert the prohibition. But it seems that the physician
himself, unless a party, cannot make the objection.[295] It seems to
have been thought in some of the cases that the right to insist upon
the enforcement of the law is coupled with an interest derived from
the patient. This idea started from the language used in the early
cases enforcing the privilege at the instance of those claiming under
deceased patients;[296] and it led to some confusion where the right
of representatives to waive the privilege was denied; but it seems
to be clear that the right to object differs from the right to waive
in that the latter is necessarily and logically dependent upon the
relation between the patient and his representative, while the former
is obviously suggested as the best method of enforcing the law. In
Indiana it has been said that the statute gives to the representative
of a deceased patient the right to object;[297] but that this is not
by reason of the relationship appears from another case in the same
State, where on an application for a new trial the Court voluntarily
refused to grant one for newly discovered evidence disclosed to it
by a physician’s affidavit, on the ground that if the patient should
object in the new trial the evidence would be excluded.[298] In this
State it has been held that the widow of the patient cannot object to
the disclosure, if his administrator with the will annexed waives the
privilege.[299]

In Michigan it has been said that the physician cannot avail himself
of the statute for his own benefit; but that was in a case where the
communication was not really of the privileged class.[300] In New
York, in proceedings to which a physician was a party an examination
of his books of account before trial has been refused on the ground of
privilege, and for the same reason a motion to direct a physician to
turn his books of account over to a receiver has been denied.[301]

In Montana it has been said that when the patient consents no one else
can object to the reception of the physician’s testimony.[302]

In New York it has been said that the benefits of the law are to be
dispensed alike to those familiar with and those ignorant of its
existence and applicability, and it is therefore no reason to refuse
its enforcement, that the patient did not know that his communication
was privileged.[303]

But, as in other cases of the receipt of improper evidence, it would
seem that the objection should be made at the time it is offered, and
if the objection is not then made, it will not avail to raise it later
or on appeal.[304] It should not be prematurely made.[305] In New
York where in pursuance of a special feature of practice in probate
proceedings,[306] certain witnesses are regarded as the surrogate’s
witnesses though produced at the instance of the contestant, and the
contestant, after giving notice that the evidence of physicians as such
witnesses was material, refused to examine them, and the surrogate
required the proponent to suggest a line of examination, it was held
that it did not lie with the contestant to object to the physicians’
testimony as privileged, because she had lost her right to object by
giving notice that the evidence of those witnesses on these points was
material.[307]

Objection cannot be raised in the progress of an examination after the
forbidden testimony has been in part received without objection; for
that would unjustly enable a party to open the door and get in all he
desired and then to close it to the disadvantage of his adversary; when
the door is once properly opened the examination may be continued until
it is complete, despite the objection of the party at whose instance it
was begun.[308]

In Indiana, where there was no objection, it was held that the evidence
should not be withdrawn from the consideration of the jury or its
weight diminished by comments on its value as matter of law.[309]

But when such evidence has already been admitted in the face of
objection, it is not necessary for the party to object again, as
nothing is waived by conforming with a rule already laid down.[310]
Where it is apparent that no harm is done to the objecting party by an
improper ruling on the receipt of privileged communications, no weight
will be given to an exception to such ruling.[311]

_What Constitutes a Waiver of the Privilege._—The statutory provisions
as to what constitutes a waiver have been set forth above.[312] In
California it has been held that cross-examination of the physician
by the patient, calling for privileged matter, is a waiver of
privilege.[313] In Indiana it has been held that consent to disclosure
cannot be inferred from the patient’s simply giving the name of his
family physician in applying for a policy of insurance on his life,
and that a waiver in such an application should be evidenced by a
stipulation too plain to be misunderstood.[314] And a physician’s
statements of the cause of his patient’s death, furnished to an
insurance company, in pursuance of a stipulation of a policy that
satisfactory proof of death shall be submitted to the company, are not
rendered admissible by that stipulation.[315]

It has also been held that consent to the evidence of one physician
is no consent that another physician may divulge confidential
communications;[316] and that the physician cannot testify that he
found no evidence of injury on the examination of his patient, in
order to contradict her;[317] the patient had already testified as
to her condition and what the physician had done, but not as to
anything said to her by her physician; she had expressly declined
to testify concerning communications except as to his prescription
for her injury, and without asking him to disprove her assertions
the trial Court permitted him to say that he had found no evidence
of injury; this was held to be error. It has also been held that the
taking of a physician’s deposition and filing it, for the purpose
of breaking the force of his testimony in a deposition taken by the
opposite party, is no consent in itself to the reading of the other
party’s deposition.[318] But when, in an action against a physician for
malpractice, the patient testifies as to the manner of treatment, the
physician is then at liberty to introduce the testimony of himself or
another physician as to the facts thus put in issue by the patient.[319]

In Iowa it has been held that the testimony of a patient regarding the
condition of his health is not a waiver of privilege, so as to allow
his opponent to introduce the testimony of his physician to contradict
him.[320]

In Michigan a physician has been allowed to contradict his patient as
to the time when her trouble commenced, but on the ground that it had
not been shown that the information was necessary to enable him to
prescribe.[321] But it has been held that waiver as to one physician is
not waiver as to another regarding a different time.[322]

In Missouri, the calling of a physician by the patient as a witness
to testify as to information acquired while attending, is a
waiver.[323] But offering one physician as a witness is not a waiver
of the privilege with reference to another.[324] An applicant for
insurance may, by an express waiver in his application, make an
efficient waiver, binding upon any one claiming under the contract of
insurance.[325]

In Nevada a waiver has been implied from the testimony of the patient
and her mother, where the patient was an infant seven years of
age.[326] And it was said that the parents of such an infant may make
the waiver.

In New York it has been held that reference to a family physician
when answering questions on an application for insurance, is not a
waiver;[327] nor is the presence of a third person, in aid of the
patient;[328] nor is the bringing of an action for damages for an
injury;[329] nor is the examination of the physician in a former trial
by the opposing party;[330] but where the ban of secrecy is once
removed in an action and the information once lawfully made public, at
the instance of the patient, it cannot be restored, and the disclosure
may then be compelled in any subsequent action;[331] it would seem,
too, that a physician who becomes a witness to his patient’s last
will and testament at the patient’s request is then subject to a
thorough examination on all points involving the patient’s testamentary
capacity.[332]

Where the patient testified herself and called an attending physician
to prove her physical condition, this was not a consent to the
examination of another attending physician, and it was said that the
opposite party by tactics on cross-examination could not compel the
patient to abandon a privilege which she refused to waive.[333] Fish,
J., in delivering the opinion of the Court in the last-mentioned case,
said of the operation of the statute, that it allows the patient to
use the testimony of the attending physician if he thinks his evidence
will benefit his case, and to object and exclude it in case he thinks
it will not benefit him; he may call to his aid the testimony of any
one whose views he approves and exclude that of another whose testimony
might tend to controvert that given with the consent of the patient;
that in this case the excluded witness was the best witness and could
tell nothing else than the patient had disclosed if she had told the
truth and it would relate solely to what she and the other physician
had described, but that the Court could not consider whether the
statute tended to promote the cause of justice, and he distinguished
_McKinney v. Grand Street Railroad Company_,[334] on the ground that
there the consent had been that the same physician should disclose what
he knew, while here the waiver of the excluded physician’s testimony
had been constantly withheld.

A decision which seems to be at variance with _Record v. Village of
Saratoga Springs_ is _Treanor v. Manhattan Railway Company_,[335] where
it was said that the patient cannot promulgate and uncover his maladies
and infirmities in court and keep his physician under obligations to
silence, and that he cannot, to mulct another in damages, inflame a
jury with a false or exaggerated story of his injuries and sufferings
and preclude the physician from making a truthful statement of the case.

But where the patient testifies as to what passed between him and his
physician, the physician may testify on the same subject, as a waiver
is inferred from the circumstances; for the reason, that the patient,
having gone into the privileged domain to get evidence on his own
behalf, cannot prevent the other party from assailing such evidence
by the only testimony available, and the rule is no longer applicable
when the patient himself pretends to give the circumstances of the
privileged interview.[336] The requirement that a physician file with
a board of health a certificate of the cause of death does not abrogate
the privilege in a judicial proceeding.[337]


THE EVIDENCE EXCLUDED.

“_Information._”—In Arkansas, California, Colorado, Idaho, Michigan,
Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North
Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin the
privileged matter is characterized as _information_.[338]

In Arkansas it seems that the information must be a _confidential
communication_;[339] but in the other States where it has been
necessary to construe the word it has received a broader interpretation.

In Michigan _information_ is not confined to confidential
communications made by the patient, but includes whatever in order to
enable a physician to prescribe was disclosed to any of his senses and
which in any way was brought to his knowledge for that purpose;[340]
it covers a letter written to a physician,[341] and matters observed
by him;[342] but it does not include information acquired by a third
person; for instance, the time when a physician saw his patient
may be disclosed by her mother;[343] and the fact of treatment or
non-treatment is not _information_;[344] nor are the facts that the
physician was the patient’s family physician, and that he attended him
professionally; nor are statements of the dates of such attendance and
the number of such visits;[345] nor the facts that the physician has
been called upon to examine and prescribe for a person and that his
patient had told him that she would want him to testify for her in a
lawsuit.[346]

In Missouri the statute protects information received _from the
patient_; but this is not confined to oral communications, and includes
knowledge gained by inspection of the patient’s person.[347] In _Lunz
v. Massachusetts Mutual Life Insurance Company_ protection was said not
to extend to information of this sort apparent on casual inspection,
which any one might make, nor to symptoms which are obvious before
the patient submits himself to any examination, such as an inflamed
face, a bloodshot eye, alcoholic fumes, or delirium; nor to facts
so superficial that in regard to them no confidence could have been
reposed. But this distinction between hidden and patent facts is
disapproved in _Kling v. City of Kansas_,[348] and the statement is
made that the law does not rest on the confidence imposed. Knowledge
or communications concerning the cause of a patient’s condition and
the extent of his injuries have also been held to be included in the
term information, because the disclosure of these matters involved
the indirect disclosure of the condition;[349] but it was said that
the physician may testify as to knowledge acquired independent of
communications from the patient and of examination or inspection
made by the witness for the purpose of treatment.[350] As divulging
privileged information, a physician has not been allowed to answer
what his patient’s hurts were, why he left a hospital, or whether
he required longer treatment;[351] and it has also been held that a
physician cannot give his opinion as to the mental condition of his
patient based upon privileged knowledge.[352]

In New York _information_ comprehends all knowledge acquired by the
physician by communication, observation, or inspection;[353] it
has been said to extend to all facts which necessarily come to the
knowledge of the physician in a given professional case;[354] and it
includes as well the opinion of the physician based upon his knowledge
as the knowledge itself.[355]

The physician cannot disclose the nature of his patient’s disease,
whether he learned it by observation or examination or from what his
patient told him;[356] nor can he testify as to what he told his
patient.[357] In _Edington v. Ætna Life insurance Company_[358] it
was said by Judge Earl that the statute was aimed at confidential
communications and secret ailments, and that it did not extend to
matters superficially apparent, such as a fever, a fractured leg
or skull, or raving mania apparent to all;[359] but this view was
disapproved expressly in the later case of _Renihan v. Dennin_.[360]

The privileged information has been said to include knowledge acquired
through the statements of others surrounding the patient.[361] But
it would seem that the fact that a third person was present during a
physician’s visit may be shown by the physician, as well as what passed
between the patient and the third person, if it was such information
as a layman would have gathered.[362] The information from the third
person regarding the patient is protected even though the patient be
absent;[363] but not if the third person does not employ the physician,
and the information thus acquired is not necessary to enable the
physician to act in a professional capacity.[364] It is suggested in
one case, but not determined, that it would be improper for a physician
to state the value of the services of a nurse in attendance upon his
patient, as that would involve a consideration of the condition of his
patient;[365] but it has been held that a physician can testify to the
fact of a nurse’s services.[366]

But it is information regarding the patient that is privileged, and
therefore a physician may disclose what his patient told him about
another, even though the subject of inquiry be the attitude of the
patient toward the other;[367] and likewise the physician may disclose
what he told his patient about a third person;[368] so also the
physician may testify as to family events in no way connected with
physical complaints.[369] It has been held, too, that admissions
made by a patient to his physician, tending to show contributory
negligence on the part of the patient, at a time when the communication
could not well have been made to enable the physician to prescribe,
namely, on the physician’s third and last visit, may be proven by the
physician.[370]

The physician may properly testify that he did attend as
physician,[371] and that the patient was sick, and he can state when
and how often he attended him,[372] and whether his knowledge was
acquired while in professional attendance,[373] but it is open to the
Court to determine from the evidence whether it was so acquired.[374]

“_Matter Committed._”—In Indiana the protection covers _matter
committed_. It would seem that the use of the word _committed_
implies confidence and that the protected matter is only confidential
communications; but an earlier statute in that State applied to
“matters confided,” and it was held to cover matters learned by
observation or examination, or by communication from the patient,
whether learned under an injunction of secrecy, express or implied,
or not;[375] and it has been held that the present law forbids the
disclosure of matters learned in a sick-room, no matter how the
knowledge may have been acquired.[376]

“_Confidential Communications._”—The laws of Iowa and Nebraska protect
confidential communications properly intrusted. The construction
put upon the word _confided_ in Indiana has been shown. In Iowa it
has been said that a confidential inquiry for advice to facilitate
the commission of a crime or the infraction of law, is not properly
intrusted and is not privileged;[377] but where the advice is sought
for a purpose which may or may not be lawful, the presumption is that
it is lawful, and the communication is privileged.[378] It has been
said that whether or not a physician treated a person for a particular
disease, is not a confidential communication.[379]

The word confidential is not narrowly construed, for a physician has
been prevented from disclosing whether his patient said that a car
was in motion when he was injured, because the injury would be more
severe if in motion;[380] and the fact that the physician’s partner was
present does not remove the seal of secrecy, or permit the partner to
testify.[381]

“_Communications._”—In Ohio and Wyoming _communications_ are
privileged; and in Kansas and Oklahoma communications with reference
to a physical or supposed physical disease and any knowledge obtained
by a personal examination of a patient. It does not appear whether a
narrower construction would be given to the term _communications_ than
to the term _information_; but it would seem not, if a person deprived
of speech is to be protected,[382] or if the term _communications_ is
not to be construed as meaning _oral communications_.

“_From the Patient; by the Patient._”—The former qualifying terms
are used in the statutes of Arkansas, Indian Territory, and Missouri;
the latter in the statutes of Kansas and Oklahoma. The liberal
interpretation put upon this term in the Missouri law has already
been shown.[383] The law of the Indian Territory is adopted from
Arkansas.[384] The statute is strictly construed in Arkansas,[385] but
this term does not seem to have received interpretation.

“_Advice._”—The laws of Indiana, Ohio, and Wyoming expressly cover the
physician’s advice. In New York it is incompetent for the physician
to disclose what he told his patient;[386] but advice to a patient
concerning a third person is not privileged.[387]

_The Relation of Physician and Patient._—Under each of the statutes,
the relation of physician and patient must have existed at the time
the information was acquired. In those cases where the relation is
established by contract and is recognized by both physician and patient
as existing, no difficulty arises in determining that it does exist.
It is in those cases where some one of these elements is lacking that
the difficulties are met. In California it has been held that the
relation exists where a physician attends and prescribes for a person,
notwithstanding he was employed by another, who seeks to disclose
the evidence.[388] In Michigan, where the physician was employed by
direction of the prosecuting attorney to examine the defendant in jail,
and so notified the defendant at the outset of the examination, and
he submitted voluntarily to a personal examination, and there was no
intention to prescribe or to act as the defendant’s physician, it was
held that the relation did not exist, and that the physician could
testify as to the defendant’s physical condition.[389]

In one New York case it has been said that the relation is one
of contract, and that the test is whether the physician would be
chargeable with malpractice or negligence for failure to advise or
prescribe in case the alleged patient were in urgent need of it at
the time.[390] But the decisions of the Court of Appeals extend
the privilege to cases where this test would lead to a different
conclusion.[391]

Where the physician to a county jail was called in to attend a
prisoner and examined him, though there was no prescription at the
time, but it appeared that the doctor told the prisoner what he should
prescribe, and subsequently two physicians came to see the prisoner
at the instance of the coroner and examined him as they would have
examined one of their patients, though they did not prescribe and had
no conversation about a prescription, it was held that the prisoner
had, under the circumstances, reason to suppose that the relation
of physician and patient did exist between him and all three of the
physicians, and that their testimony as to what they learned on such
visits should have been excluded; and the rule is thus stated: whenever
the patient has reason to suppose that the relation exists and does in
fact and truth so suppose, in a case where the physician attends under
circumstances calculated to induce the opinion that his visit is of a
professional nature, and the visit is so regarded and acted upon by the
person attended, the relation of physician and patient contemplated by
the statute may fairly be said to exist.[392]

But the fact that it is the duty of a physician to prescribe for a
person in case of need, does not constitute the relation, though
the position of the physician gives him the opportunity to observe
such person; so, therefore, a jail physician was not precluded from
testifying as to what he had observed of a prisoner, where it did not
appear that he had ever attended the latter in a professional capacity
or had ever been called on to attend him.[393]

It would seem, however, that where it is the duty of a physician to
attend a person in a professional capacity or to acquire knowledge
concerning him in such capacity, he cannot disclose information
actually acquired in the performance of his duty. It has been said
that a medical attendant at an insane asylum cannot testify as to the
mental condition of an inmate;[394] and that a physician employed in a
hospital to notice and enter in its records the arrival and condition
of the patients coming in, cannot testify as to information so
acquired.[395]

It is immaterial that another person employs the physician to examine
the patient, and to report to the employer, and that the person
examined does not appear to desire any knowledge as to his condition;
if the examination is made as a professional act, the relation of
physician and patient is established between the physician and the
person examined, even though it be the only interview.[396]

And in a case where the public prosecutor sent a physician to a person
for the purpose of making a professional examination, so as to obtain
evidence against another person charged with crime, and the person
examined accepted the services of the physician in a professional
character, it was held that he could not testify as to the results of
his examination.[397]

But where the district attorney sent a physician to jail to make an
examination of a prisoner’s mental and physical condition, and he made
such examination, and it did not appear that he prescribed for or
treated the prisoner or that the prisoner accepted his services, the
opinion of the physician as to his mental condition was admitted.[398]

Where the defendant employed a physician to examine the plaintiff, and
he went as coming from the defendant for that purpose, and examined
the plaintiff in the presence of his attending physician, but not as
the plaintiff’s physician and not for the purpose of prescribing, the
relation of physician and patient was not established.[399] Where a
physician examined the plaintiff at the instance of the plaintiff’s
physician, but it was not shown that he was requested or expected
to treat or prescribe or to advise in respect to either, or that he
did either, it was held that the relation was not established;[400]
but a physician consulted by the patient’s regular physician for the
purpose of advice concerning his treatment is a physician contemplated
by the statute;[401] as is also the partner of a physician who
is present during a conference with the patient or who overhears
such a conference.[402] Attendance at the patient’s house is not
contemplated as essential by the law, and it makes no difference
where the examination is conducted.[403] But where the physician was
also a county clerk and the alleged patient was an attorney, and the
consultation took place in the clerk’s office and consisted of an
examination of an eruption on the skin, which was made gratuitously and
without a prescription being made or asked for, the relation was held
not to have been established, notwithstanding that the clerk made use
of his knowledge and learning as a physician in forming his opinion,
and that it was in confidence that he possessed medical skill that the
person requested the examination.[404]

It does not follow that the relation once established continues always;
the secrecy growing out of the relationship, as to knowledge then
acquired, always continues unless properly waived; and the physician
will not be allowed to testify in regard to matter which is partly the
result of such information, though another part may have been acquired
independent of the relation;[405] but where it is clear that the matter
desired is independent of the relation of physician and patient, such
evidence is admissible if otherwise competent.[406]

“_Professional Capacity._”—The States in which the statutes limit
the privilege to information acquired in a professional capacity
have been enumerated.[407] As to what constitutes a professional
capacity, the discussion of the facts that establish the relation of
physician and patient, and of the information necessary to enable a
physician to prescribe or a surgeon to act, makes it unnecessary to
discuss at length the meaning of this phrase. The decision in _Lunz
v. Massachusetts Mutual Life Insurance Company_[408] would make it
appear that in Missouri information apparent on a casual inspection
which any one might make is not received in a professional capacity,
but this idea is disapproved in the later case of _Kling v. City of
Kansas_.[409] Information acquired by the physician by observing the
patient on the street anterior to his employment as a physician is not
received by him in a professional capacity.[410]

In New York, where the physician had not seen the patient before or
since his interview for the purpose of treatment, and he was asked
what his opinion was, based on a general sight of the man before the
examination, it was held that the physician could not properly answer,
as all the information upon which the opinion would be based must
have been acquired in a professional capacity;[411] but in another
case a physician was permitted to express his opinion as to the mental
condition of a patient whom he had seen at various times when not
in attendance, excluding from his mind any knowledge or information
obtained while acting as her medical attendant and confining his answer
to such knowledge and information as he had obtained by seeing her when
not his patient.[412] It has been said that where information is not
such as is obtained on sight by any person, but by removing clothing
and by percussion and listening to the action of the lungs, these are
professional acts and the information may be considered as obtained
professionally.[413] It has been said that information received in a
professional capacity involves a decision, though it may be negative;
and that signing as witness to a will is not a professional act.[414]

_Matter Necessary to Enable a Physician to Prescribe or a Surgeon to
Act._—A list of those States whose laws limit the privilege to matter
necessary to enable the witness to prescribe or act for the patient is
to be found in another place.[415]

In Arkansas, where six hours after delivery, the patient stated to her
physician who attended at accouchement, that she had never been engaged
to marry and never had promised to marry, the statements were held not
to be necessary to enable the physician to act.[416]

In Iowa, a physician who had treated a patient for injuries was not
allowed to testify whether his patient told him that the car on which
he was injured was in motion at the time, because as the injury would
be likely to be more severe if the car was in motion, that information
was necessary to enable the physician to prescribe.[417]

In Michigan, a physician was allowed to contradict his patient as
to when her trouble commenced, in the absence of evidence that
such information was necessary to enable him to act.[418] Where a
physician was asked whether he treated a person for typhoid fever,
and he answered that she was not so diseased, it was held that this
information was not necessary to enable him to act.[419] And the same
was held to be true where a physician examined a prisoner at the jail
and testified that he was diseased, the prisoner having been notified
at the time of the examination that it was made by direction of the
prosecuting attorney and there being no intention to prescribe or act
for the prisoner.[420] But it has been stated that all disclosures by
a patient to a physician respecting ailments are privileged whether
necessary to enable the physician to prescribe or not.[421]

In Minnesota, a physician was allowed to disclose statements as to
suffering made by his patient, but not for the purpose of enabling him
to prescribe or act.[422]

In Missouri, it has been said that information as to the way in which
an injury was inflicted is of the greatest necessity for successful
treatment; and that it is information which physicians universally
demand and receive.[423] In another case, with reference to the cause
of a patient’s condition, it was said that while knowledge of the
cause may not be necessary, the disclosure of the cause cannot be made
without a disclosure of the condition, and that as a medical person
cannot tell indirectly what he is forbidden to tell directly, the
physician’s evidence of the cause is inadmissible.[424] In another case
it was said that any information, necessarily coming to a physician in
order to treat his patient, is to be regarded as necessary information
though unimportant, and that the test is how it was acquired, not
whether it could have been acquired in a different way, and therefore
it was incompetent for a physician to testify that his patient was
drunk when he treated him.[425]

In New York, in an early case,[426] where a man consulted a physician
with reference to committing an abortion and told him that a certain
woman was pregnant by him, this admission was said not to be essential
to enable him to prescribe, even if the relation of physician and
patient were considered established; but this seems to be at variance
with the later case of _People v. Brower_,[427] where the accused
consulted a physician with reference to the treatment of a woman on
whom he had attempted to commit an abortion, and admitted that he
had done so, and the physician was not permitted to disclose it.
A broader view is now taken of the word _necessary_. It has been
held by the Court of Appeals that a physician could not testify
that his patient had a venereal disease while under his care as a
physician, the presumption being that he learned it for the purpose of
prescribing;[428] and again, that it is assumed from the relationship
that the information would not have been imparted except for the
purpose of aiding the physician to prescribe.[429] But this presumption
does not attach to information regarding a patient, communicated by a
third person.[430]

Where a person went to a physician to call for medicine, and
it appeared that he was not consulting for himself and was not
representing any one else who needed or desired medical assistance, the
physician was allowed to testify as to a conversation which took place
at that time.[431]

In the case of _Edington v. Ætna Life Insurance Company_,[432] it was
said that before the exclusion, the facts on which it is justified
must appear in some way, and the Court must know somewhat of the
circumstances; from the opinion it is easy to infer that it is only
confidential communications and information as to secret ailments which
may be regarded as necessary within the statute; but this view was
overruled in _Grattan v. Metropolitan Life Insurance Company_,[433]
and there it was distinctly stated that it is enough that the witness
acquired the information in his character as physician and in the due
and proper exercise of his calling, and that it is not incumbent on
the person objecting, to show by formal proof that the information
was necessary to enable the witness to prescribe. In this case the
examination of the witness was as to the cause of his patient’s
death, and the argument urged upon the attention of the Court was that
information regarding the cause of death could not be necessary to
enable the physician to prescribe, as the utility of the prescription
ceased with the death and before the cause was determined; but the
Court held that the privilege attached, because, although the death was
the result of the cause, the facts constituting the cause were learned
while the physician was attending the living patient in a professional
capacity and from the symptoms manifested at that time.

In consonance with the decision in _Grattan v. Metropolitan Life
Insurance Company_,[434] it has been held that a physician who
amputated a patient’s leg could not testify as to its condition at the
time it was amputated.[435]

The fact that the physician does not prescribe does not defeat the
privilege; if the information is acquired in the course of professional
employment the statute operates, for the decision that neither advice
nor medicine is needed is a professional act within the spirit of the
law.[436] _Medicus optimus, medicamentum minimum_, is the maxim used in
another case to illustrate this point.[437]

But it cannot be predicated as matter of law that a physician cannot
exclude from his consideration facts learned or opinions formed while
attending as physician; therefore he can testify as to his opinion on
hypothetical facts which might be deemed to relate to another person as
well as the patient; and where the physician testified that he could
so form an opinion, his opinion of such assumptions was held to be
admissible in evidence as expert testimony.[438]

But it is not all information which will be presumed to have been
necessary to enable the physician to act; it seems that where the
knowledge is such that it is evidently immaterial to the physician’s
decision, it will be admitted. Such a case is that of _Hoyt v.
Hoyt_,[439] where the testimony of physicians was admitted to show
the attitude of their patient toward his daughter and their advice
to him concerning her, the evidence being for the purpose of showing
the testator’s opinion and not the physicians’. It has also been held
that a statement made by a patient on the physician’s last visit as
to what occurred at the time the patient was injured, tending to show
contributory negligence, was not necessary information.[440] And a
physician’s evidence of the declaration of his patient as to making a
will and the doctor’s advice on that subject have been admitted.[441]


THE PROVINCE OF THE COURT IN DEALING WITH THE PRIVILEGE.

All questions of the competency of evidence are solved by the Court
and not by the jury.[442] The facts establishing the privilege are
presented to the Court for its consideration. In Iowa it has been held
that a fair trial demands that it should not be made to appear to the
jury in an action that the patient is reluctant to waive his privilege,
and that therefore the subject-matter of waiver has no place in the
taking of testimony except when introduced by the party permitted to
make it, and the Court should not allow the patient to be asked to
answer under oath whether he is willing to waive his privilege.[443]

Whether it is the duty of the Court to enforce the privilege where it
is apparent and the patient is not present to object, is a question
that seems to be variously regarded. In Indiana a court has refused
a new trial for newly discovered evidence of the privileged sort, on
the ground that if objection were madeon the new trial it would be
rejected.[444] But where the evidence of a physician to contradict
another physician, who was witness to a will, was received without
objection, it was said that it should not be withdrawn by the Court
from the consideration of the jury or its value commented on as matter
of law.[445]

In Michigan, it has been said that a commissioner, whose ordinary duty
is to take all evidence offered, should refuse to take this privileged
evidence; and that it should be stricken out without motion by the
judge when returned by the commissioner, and that the physician should
not be allowed to violate the privilege.[446] It has also been held
that an order for the compulsory physical examination of a person by
a physician for the purpose of testifying should not be granted, and
that evidence so obtained should be stricken out, but on the ground
that it was a violation of personal liberty, rather than of statutory
privilege.[447]

But in New York it has been held that where a person voluntarily in
an action exhibits an injured part as evidence, the adverse party is
entitled to follow it up by a personal or professional inspection of
the injured part.[448]

In Missouri, it has been said that the physician should be told that he
is not at liberty to testify as to privileged information.[449]

In New York, in an early case in chancery, the chancellor said that
a master was wrong in supposing there was legal evidence before him,
where a physician had given evidence privileged under the statute;[450]
but this decision was reversed on appeal, the Court of Errors saying
that as no objection was made before the master by a party, the
evidence was competent and legal.[451] This question seems to have been
settled in New York by the decision in _Hoyt v. Hoyt_,[452] that the
law does not prohibit the examination of a physician but it prohibits
the evidence being received in the face of objection, so that if no
objection is made by a party it is not the province of the Court to
reject the evidence.

Where it appears that privileged information was improperly admitted,
it is not ground for reversal on appeal if it is apparent that the
appellant was not injured by its reception.[453]

Where the Court is not empowered to reject the evidence of its own
motion, the objection upon which it can reject is the objection of
a party to the suit, and doubtless of the patient, but not of the
physician.[454] But because of the privilege, it has been held that a
physician will not be ordered to turn over his books of account to a
receiver appointed in proceedings supplementary to an execution on a
judgment against him.[455] Nor will examination of his books of account
before trial be compelled.[456]

It is the province of the courts, however, to enforce the law and not
to legislate by grafting exceptions upon it.[457] They have refused
therefore to except, by judicial decision, from the operation of the
law, criminal proceedings, testamentary causes, evidence of crime in
civil actions, cases of lunacy and habitual drunkenness and fraud,[458]
in all of which it was urged in argument without effect that the
administration of justice was impeded by the privilege; but where the
spirit of the law was violated by an enforcement of its letter and
the privilege made a cloak to shield the murderer of the patient,
it was held to be inapplicable.[459] The courts have also refused
by mere judicial decision to limit the privilege to the life of the
patient.[460]


THE EFFECT OF ENFORCING THE PRIVILEGE.

The courts are not warranted in admitting incompetent evidence in order
to prevent the failure of justice by the exclusion of the privileged
testimony. A letter written by a physician is inadmissible as evidence
of the privileged facts which it states;[461] and a certificate of
the cause of death, required by law to be signed by the physician and
filed, is not admissible to prove the cause of death in an action in
which the physician cannot testify.[462]

The making of the objection does not raise a presumption against the
person making it.[463] In Iowa it has been held that the patient should
not be interrogated under oath as to whether or not he will waive his
privilege, for the jury ought not to be prejudiced against him by any
show of reluctance.[464] In Michigan, however, it has been held that a
patient’s failure to produce his physician as a witness is a legitimate
fact for the jury to consider.[465]


THE CHARACTER AND WEIGHT OF THE EVIDENCE TO SUSTAIN THE OBJECTION.

Where the objection is made, the burden of proof to establish the
grounds of privilege is upon the person objecting.[466] In Missouri
it has been said that the statement of the physician, that he cannot
separate his impressions received in his relation of physician from
those received at other times, is not in itself sufficient to justify
the exclusion of his evidence; that the facts themselves must appear to
the Court, and it might be developed on proper cross-examination that
discrimination could be made.[467]

But it would seem that because of the necessarily delicate nature of
the inquiry, to avoid disclosing what the statute forbids, the burden
is overcome with slight evidence, and inferences and presumptions
are freely indulged in aid of the privilege; for instance, where the
physician was not permitted to answer whether he did converse with
his patient about an injury, or whether he made an examination with
reference to it, it was urged that the objection was prematurely made,
but it was held that the fact that the patient consulted a physician
on the occasion to which the inquiry related, when considered with the
nature of the questions, justified the exclusion in the absence of
other proof.[468] But the physician may testify that he did attend
his patient as physician;[469] and he may answer the question whether
the information was necessary to enable him to act in his professional
capacity;[470] for while his testimony on that point is not conclusive,
and the Court uses its own judgment in reaching a determination, his
testimony is competent evidence.[471] He may also testify that a person
was ill and was his patient, that he attended as physician, and he can
state when he attended and how many times.[472]

It has been said that where the evidence justifies the conclusion that
information regarding the patient is acquired while attending in a
professional capacity, it is not essential to show by formal proof that
the information was necessary.[473]


THE RIGHTS AND DUTIES OF THE PHYSICIAN WITH REFERENCE TO THE PRIVILEGE.

The privilege established by law is a rule of evidence, and not a
regulation of a physician’s general conduct outside of a proceeding in
which rules of evidence are applicable.[474] The courts have, however,
not hesitated to intimate that it is a physician’s duty to observe the
same secrecy in his general walk and conversation.[475]

The physician may testify as an expert on hypothetical questions
submitted to him regarding facts which might be equally true of any
other person than his patient, and excluding from his consideration
privileged knowledge.[476] And he may also testify as to matters
which came to his knowledge before or after or independent of his
employment as physician,[477] or which were immaterial to his acting in
a professional capacity, and as to which his patient could have had no
reasonable ground for believing that they were necessarily disclosed
in order that the physician might so act.[478] It is the patient’s
privilege and not the physician’s; and, therefore, the physician is
not absolutely incompetent as a witness, and has no right to refuse to
testify.[479] But where he is a party he may object and then he will
not be forced to disclose his patient’s confidence.[480]

In Indiana it has been held that where the patient testifies in an
action against his physician for malpractice the physician is then
at liberty to testify or to introduce any other witness to testify
concerning the matters in controversy.[481]

In Michigan, a physician who was plaintiff in a libel suit was not
permitted to insist upon the privilege to prevent the disclosure of his
maltreatment of his patient or what other physicians had discovered
with regard to it by visits to his patients.[482]

The measure of the physician’s exemption and liability in testifying
is the language of the statute, and not his idea of his duty to his
patient or the patient’s injunctions of confidence or secrecy.[483]

In some of the States there are statutory provisions entitling
physicians to sue for compensation for their professional
services.[484] The statutes regarding privileged communications are
to be construed together with these. There seems to be no reason why
a physician’s right of action for his services and medicines should
not survive the prohibition of his evidence; but it would seem that
he cannot as a witness in such an action testify regarding privileged
matter. But he can prove it by other witnesses.[485]


THE RESULT OF THE LEGISLATION.

It is doubtless due to considerations of public policy that the
statutes changing the common-law rule have been enacted;[486] but
they have not proved an unalloyed benefit, and some of their features
have brought about conditions which in some cases have embarrassed
the administration of justice. The law in New York may be taken for
illustration; it formerly cut off the safest means of ascertaining the
mental condition and competency of a testator;[487] it now precludes a
physician from disclosing the condition of his patient who is a lunatic
or habitual drunkard,[488] though it be the most satisfactory evidence;
it shuts out much testimony tending to show fraud in insurance
cases;[489] it precludes a physician from stating the cause of his
patient’s death,[490] though there is no longer any secrecy connected
with it, for the law makes it the duty of the physician to make, for
filing with the local board of health, a certificate of the probable
cause of the death of a patient.[491] It has been the subject of much
adverse criticism,[492] but all such considerations are properly to be
addressed to the legislature and not to the courts. It seems to be the
most far-reaching in its exclusion, and though it has been the longest
in existence, was modified at the legislative sessions of 1891, 1892,
and 1893, a fact which tends to show that there was sound reason in the
criticisms.



  A SYNOPSIS OF THE LAWS

  OF THE

  SEVERAL STATES AND TERRITORIES OF THE UNITED STATES OF
  AMERICA, AND OF GREAT BRITAIN AND IRELAND, AND
  OF THE NORTH AMERICAN PROVINCES OF GREAT
  BRITAIN, REGULATING THE PRACTICE
  OF MEDICINE AND SURGERY,


  PREPARED FROM THE LATEST STATUTES.


  BY

  WILLIAM A. POSTE,

  _Late First Deputy Attorney-General of the State of New York_,

  AND

  CHARLES A. BOSTON, ESQ.,

  _of the New York City Bar_.



SYNOPSIS OF THE EXISTING STATUTES

WHICH REGULATE

 THE ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY IN THE
 UNITED STATES, GREAT BRITAIN AND IRELAND, AND THE CANADIAN PROVINCES.


[NOTE.—This synopsis is designed to contain especially those
provisions of the statutes which regulate the right to practise
medicine and surgery. It is not intended to include provisions
regulating apothecaries, druggists, chemists, and dentists, or the sale
of drugs, medicines, and poisons; nor provisions for the organization
and procedure of boards of medical examiners, except so far as they
regulate the requirements demanded from applicants for permission to
practise; nor provisions with reference to the duties of clerks or
registrars in the preparation and safe-keeping of records in their
care; nor those defining the duties of members of boards, and punishing
the misconduct of such members; nor those prescribing qualifications
for appointment to the public medical service; nor former laws not now
applicable to candidates; nor regulations of the form of certificates
or licenses, where the issuing of them is committed to some public
functionary or body; nor provisions with reference to the powers and
disabilities of local institutions to confer diplomas or degrees, nor
with reference to medical students except as candidates for admission
to practise. In the synopsis words of the masculine gender are
uniformly used except when the law by its terms makes a distinction
between men and women, in which case the distinction is indicated.]


ALABAMA.

QUALIFICATION.—The board of censors of the Medical Association of
the State of Alabama and the board of censors of the county medical
societies in affiliation with the said association are boards of
medical examiners (Code 1887, s. 1,301). In the absence of such board
of medical examiners in any county, the county commissioners may
establish a board of from three to seven physicians of good standing,
resident in the county, whose authority shall terminate whenever a
board is organized in accordance with the constitution of and in
affiliation with said association (_ib._, s. 1,296). Where the board
of examiners is constituted as provided in sec. 1,296, it must issue a
license to practise medicine in any one or more of its branches in the
county, if on examination the applicant is found duly qualified, and is
of good moral character (_ib._, s. 1,297).

In a county having only the medical board provided for in sec. 1,296,
a regular graduate of a medical college in the United States, having
a diploma, is entitled to practise medicine without a license, upon
recording his diploma in the office of the judge of probate of the
county (_ib._, s. 1,298).

A license issued by the last-mentioned board must be recorded in the
office of the judge of probate of the county (_ib._, s. 1,299). The
license or diploma, after record, is evidence of authority; if the
original be lost, a certified copy of the record is sufficient evidence
(_ib._, s. 1,300). Without a certificate of qualification from the
board provided for in sec. 1,301, except as above provided, no person
can lawfully practise medicine in any of its branches or departments
as a profession or means of livelihood (_ib._, s. 1,302). The standard
of qualification, method or system, and subjects of examination are
prescribed by the medical association of the State (_ib._, s. 1,303).

The board of medical examiners, on application, must examine an
applicant for a certificate of qualification as a practitioner of
medicine, and if he be found qualified, and of good moral character
must issue a certificate (_ib._, s. 1,304).

Physicians having a license as above before the organization in a
county of a board, are on application thereto entitled to a certificate
without examination and to be registered as licensed practitioners of
medicine (_ib._, s. 1,305).

The certificate is a license throughout the State. It must be recorded
in the office of the judge of probate of the county in which the person
resides at the time of issue. Upon recording it, the judge must indorse
a certificate of record and sign it and affix the seal of the court
(_ib._, s. 1,306). Such certificate, or, if lost, a certified copy of
the record, is evidence (_ib._, s. 1,307).

PENALTY.—A contract for the services of a physician or surgeon is void
unless he has authority to practise; proof of authority is not required
at trial except on two days’ notice (_ib._, s. 1,318).

Practising medicine or surgery without a certificate is a misdemeanor
under a penalty of a fine of from $25 to $100. This provision is not
applicable to physicians practising medicine in Alabama in 1890, who
are graduates of a respectable medical college and have complied with
the law by having their diplomas recorded by the judge of probate in
the county where they practise; nor to a physician who has practised in
the State for the past five years (Act 1890-91, c. 376); nor to women
practising midwifery (Code 1887, s. 1,308).

FEES.—The statutory fees are as follows:

To judge of probate, for record of diploma, or license or certificate,
$1 (_ib._, s. 1,298, 1,299, 1,306).

To board of medical examiners, for examination, actual expenses (_ib._,
s. 1,304).


ARIZONA.

QUALIFICATION.—It is unlawful for any person to practise medicine,
surgery, or other obstetrics unless he have a diploma regularly issued
by a medical college lawfully organized under the laws of the State
wherein it is located, or a license issued and authorized by a board
of medical examiners under and by virtue of the laws of any State or
Territory. The diploma must state that the person named is qualified to
practise medicine and surgery in all of its departments (Penal Code,
1887, s. 617, as amended Act of April 11th, 1893).

A diploma granted for moneyed consideration or other article of value
alone, or revoked or cancelled by the college by which it was issued or
by act of the legislature, is not a sufficient qualification (_ib._, s.
618).

Every practitioner of medicine, surgery, or obstetrics must register in
the county recorder’s office his name, residence, and place of birth,
and present his diploma or license, and the county recorder must make
a copy of it under the record of his name, residence, and place of
birth. The person registering must subscribe and verify an affidavit in
writing, annexed to the copy as transcribed, that he is the identical
person named in the diploma (_ib._, s. 619, as amended by Act of April
11th, 1893).

DEFINITION, EXCEPTION.—Any person is regarded as practising medicine
who professes publicly to be a physician or habitually prescribes for
the sick, or appends to his name “M. D.,” but the act does not prohibit
gratuitous services in cases of emergency; nor apply to lawfully
commissioned surgeons and assistant surgeons of the United States army
and those who were commissioned and mustered into the United States
service in the great rebellion, or physicians or surgeons who have
been in active practice for ten years and at least three years in the
Territory, nor prevent practice and receiving pay in localities fifteen
miles or more from the residence or office of a regular physician
(_ib._, s. 620).

OFFENCE.—Violation of the act is a misdemeanor (_ib._, s. 621).

FEES.—To the county recorder, for registration, $5 (_ib._, s. 619).


ARKANSAS.

QUALIFICATION.—It is unlawful for any one to engage in the practice of
medicine and surgery, or either, as a calling except as provided in the
statute (Act April 14th, 1893, s. 1).

A person engaging in the practice of medicine or surgery must be of
good moral character, twenty-one years of age, and a graduate of some
reputable college of medicine and surgery that requires for graduation
not less than two courses of lectures, each in a different year (_ib._,
s. 2).

Before engaging in practice, such person must exhibit his diploma to
some county clerk of the State and have it recorded. The clerk must
give him a certificate of record, which may be attached to the diploma
(_ib._, s. 3).

In all cases of doubt as to the reputability of a college, it is the
duty of the clerk of the county court, when a diploma is offered for
record, to make inquiry of the Secretary of the State where the said
college exists as to its reputability and requirements for graduation,
and if the said clerk shall find that the said college does not conform
to the requirements of this article, he shall not receive the diploma
and the holder shall not be allowed to practise in the State. The
aggrieved applicant may apply to the State board of medical examiners,
whose decision shall govern the clerk in his action (_ib._, s. 4).

If after recording any diploma it shall come to the knowledge of the
clerk making the record, or any other judicial or executive officer of
the State, that the record was obtained by fraud or misrepresentation,
it shall be his duty to institute before the said court of record
proceedings to have such record reversed, and the holder of the diploma
shall be judged guilty of a misdemeanor (_ib._, s. 5).

EXCEPTIONS.—The act does not affect the standing of any one practising
at the time of its passage by virtue of a license under the then
existing law, nor any one then legally engaged in the practice of
medicine and surgery, nor does it prevent midwives from practising
their calling or any one else from giving such simple domestic remedies
as they are in the habit of using (_ib._, s. 6).

EXAMINATIONS.—The constituted State board of medical examiners is
authorized to examine persons having no diploma from a medical college,
and if found qualified to practise medicine and surgery issue a
certificate entitling the holder to practise in this State (_ib._, s.
7).

SYSTEMS, DEFINITION.—No discrimination of schools of medicine is
allowed. Any person who prescribes or administers medicine except as
provided in sec. 6 is deemed a physician (_ib._, s. 8).

PENALTY.—The violation of this act is a misdemeanor punishable with a
fine of from $25 to $100. Each day of practice is a separate offence
(_ib._, s. 9).

DATE.—The act took effect ninety days after its passage (_ib._, s. 10).

FEES.—To the county clerk, for recording, $1.50.

For certificate of record the county clerk is not allowed to charge a
fee (_ib._, s. 3).


CALIFORNIA.

QUALIFICATION.—Every person practising medicine or surgery in any of
its departments must present his diploma to the board of examiners with
affidavits. If the board finds all facts required to be stated in the
affidavit to be true, it issues a certificate conclusive in any part
of the State (Act 1877-78, c. 576; amending Act 1875-76, c. 518).

The secretary of the board receives applications. The board issues
certificates to all who furnish satisfactory proof of having received
diplomas or licenses from legally chartered medical institutions in
good standing (Act 1875-76, c. 518, s. 3).

The medical society of the State, the eclectic medical society of the
State, and the State homœopathic medical society each appoint annually
a board of seven examiners who must be regular graduates (Act 1877-78,
c. 576; amending Act 1875-76, c. 518).

The board examines diplomas as to genuineness. The affidavit
accompanying the diploma must state that the applicant is its lawful
possessor, and the person therein named; that the diploma was procured
in the regular course of medical instruction and without fraud or
misrepresentation of any kind, and that the medical institution
granting it had, at the time of granting the same, a full corps of
medical instructors, and was at said time a legally incorporated
institution, actually and in good faith engaged in the business of
medical education, and in good standing as a medical institution, and
that the applicant had complied with all the requirements of said
institution. The affidavit may be taken before any person authorized
to administer oaths, and must be attested under the hand and official
seal of the officer, if he have a seal. The board may hear such further
testimony as they deem proper to hear as to the verification of the
diploma or the identity of the person, or the manner in which the
diploma was procured, and if it appears that any fact stated in the
affidavit is untrue, the application is rejected. No board entertains
an application rejected by another; a rejected application cannot be
renewed for at least one year (_ib._, s. 4, as amended by Act 1877-78,
c. 918); no certificates are granted except to persons presenting
diplomas or licenses from legally chartered medical institutions in
good standing (_ib._, s. 5).

Certificates must be recorded in the county of residence and the record
indorsed thereon. A person removing to another county to practise must
procure an indorsement to that effect on his certificate from the
county clerk, and must record the certificate in the county to which he
removes (_ib._, s. 6).

The board refuses certificates to individuals guilty of unprofessional
conduct. The applicant is given an opportunity to be heard, by
citation; the attendance of witnesses may be compelled by subpœna;
witnesses may be examined at the hearing by either side, and either
side may examine medical experts as to whether such conduct is
unprofessional; if it appears to the satisfaction of the board that
the applicant is guilty of the unprofessional conduct set out in the
citation, no certificate can be granted. No application is refused for
unprofessional conduct more than one year before the application. If
the holder of a certificate is guilty of unprofessional conduct, the
certificate must be revoked by board granting it; no revocation is
valid without similar proceedings to the foregoing (_ib._, s. 10).

DEFINITION.—Any person is regarded as practising medicine who
professes publicly to be a physician, or habitually prescribes for the
sick, or appends to his name “M.D.”

EXCEPTIONS.—The act does not prohibit gratuitous services in cases of
emergency; nor apply to lawfully commissioned surgeons of the United
States army or navy practising their profession (_ib._, s. 11, as
amended 1877-78, c. 576).

ITINERANT VENDERS.—A license of $100 a month is exacted from itinerant
venders of drugs, nostrums, ointments, or appliances for treatment
of disease, and from persons publicly professing to cure or treat
disease, injury, or deformity by any medicine, drug, or drugs, nostrum,
manipulation, or other expedient (Act 1877-78, c. 576, amending Act
1875-76, c. 518, s. 12).

PENALTY.—The penalty for violation of the act is a fine of from $50 to
$500, or imprisonment in the county jail from 30 to 365 days, or both,
for each and every offence. Filing or attempting to file the diploma or
certificate of another, or a forged affidavit of identification, is a
felony, punishable the same as forgery (_ib._, s. 13; Act 1877-78, c.
918, s. 7).

FORMER PRACTITIONERS.—Holders of certificates theretofore granted by
the board of examiners existing by the appointment of the California
State Medical Society of Homœopathic Practitioners are excused by the
Act 1877-78, c. 918, s. 7, from obtaining new certificates.

REJECTED APPLICANT.—A certificate issued by one board to an applicant
rejected by another within a year is null and void (_ib._, s. 9).

FEES.—To secretary of board, for examining genuine diploma, $5.

If diploma fraudulent or property of another, $20 (Act 1877-78, c. 576,
s. 3; amending Act 1875-76, c. 518, s. 4).

To county clerk, for recording certificate, usual recording fees (Act
1875-76, c. 518, s. 6).


COLORADO.

BOARD OF EXAMINERS.—The State board of medical examiners is composed
of nine practising physicians of known ability and integrity, graduates
of medical schools of undoubted respectability, six of the regular
school, two of the homœopathic, and one of the eclectic school or
system, appointed by the governor (Mills’ “Annotated Statutes” 1891, s.
3,547).

QUALIFICATION.—Every person practising medicine must possess the
required qualifications. If a graduate in medicine, he must present
his diploma to the State board of medical examiners for verification,
or furnish other evidence conclusive of his being a graduate of a
legally chartered medical school in good standing. The board issues
its certificate, and such diploma or evidence and certificate are
conclusive. If not a graduate of a legally chartered medical school
in good standing, the person must present himself before the board
for examination. All persons who have made the practice of medicine
and surgery their profession or business continuously for ten years,
and can furnish satisfactory evidence thereof to the State medical
examiners, shall receive a license to continue (_ib._, s. 3,550).

Examinations of persons not graduates are made by the State board,
wholly or partly in writing, in anatomy, physiology, chemistry,
pathology, surgery, obstetrics, and practice of medicine (exclusive of
materia medica and therapeutics) (_ib._, s. 3,553).

The holder of a certificate should have it recorded in the office of
the clerk of the county in which he resides, and the record indorsed
thereon, and on removing to another county to practise should procure
an indorsement to that effect on the certificate from the county
clerk, and record this certificate in the county to which he removes
(_ib._, s. 3,554).

The board may refuse certificates to persons convicted of conduct of
criminal nature; and may revoke certificates for like cause (_ib._, s.
3,356).

DEFINITION.—Professing publicly to be a physician and prescribe for
the sick, or attaching to name “M.D.,” or “surgeon” or “doctor” in a
medical sense, is regarded as practising medicine. Gratuitous services
in case of emergency are not prohibited (_ib._, s. 3,557).

PENALTY.—The penalty for violation of the act is a fine of from $50 to
$300, or imprisonment in the county jail from ten days to thirty days,
or fine and imprisonment for each offence; filing or attempting to file
the diploma or certificate of another, or false or forged evidence, is
a felony punishable the same as forgery (_ib._, s. 3,558).

SYSTEM OF MEDICINE.—Certificates are issued without prejudice,
partiality, or discrimination as to schools or systems of practice or
medicine, including the electropathic school (_ib._, s. 3,561).

FEES.—To treasurer of board by graduates and practitioners of ten
years’ standing, $5. By candidates for examination, $10 (_ib._, s.
3,552).

To county clerk, for recording certificate, $1 (_ib._, s. 3,554).


CONNECTICUT.

QUALIFICATION, EXCEPTIONS.—After October 1st, 1893, no person
shall for compensation, gain, or reward, received or expected,
treat, operate, or prescribe for any injury, deformity, ailment,
or disease, actual or imaginary, of another person, nor practise
surgery or midwifery unless or until he has obtained a certificate of
registration, and then only in the kind or branch of practice stated
in the certificate, but the act does not apply to dentists practising
dentistry only, nor to any person in the employ of the United States
Government while acting in the scope of his employment, nor to medical
or surgical assistance in cases of sudden emergency, nor to any
person residing out of the State who shall be employed to come into
the State to assist or consult with any physician or surgeon who has
been registered in conformity with the act, nor to any physician or
surgeon then actually residing out of the State who shall be employed
to come into the State to treat, operate, or prescribe for any injury,
deformity, ailment, or disease from which any person is suffering at
the time when such non-resident physician or surgeon is so employed,
nor to any actual resident of this State recommending by advertisement
or otherwise the use of proper remedies sold under trade-marks issued
by the United States Government, nor to any chiropodist or clairvoyant
not using in his practice any drugs, medicines, or poisons, nor to any
person practising the massage method or Swedish movement cure, sun
cure, mind cure, magnetic healing, or Christian science, nor to any
other person who does not use or prescribe in his treatment of mankind
drugs, poisons, medicine, chemicals, or nostrums (Act 1893, c. 148, s.
1).

Any resident of the State who, at the time of the passage of the
act, was or previously had been actually engaged in the State in the
practice of medicine, surgery, midwifery, or any alleged practice of
healing, may, before October 1st, 1893, file with the State board of
health duplicate statements subscribed and sworn to by him upon blanks
furnished by said board, giving his name, age, and place of birth and
present residence, stating whether he is a graduate of any medical
college or not, and of what college, and the date of graduation, and
if practising under a license from any of the medical societies of the
State, which society and the date of such license and the length of
time he has been engaged in practice in the State, and also elsewhere,
and whether in general practice or in a special branch of medicine or
surgery, and what branch. On receipt of such statements, the board
shall issue a certificate of registration which shall state the kind or
branch of practice in which he is engaged (_ib._, s. 2).

Any person who shall, subsequent to October 1st, 1893, file with said
board such duplicated statements, showing that he is a graduate of
a medical college recognized as reputable by any chartered medical
society of the State, shall receive a certificate of registration which
shall state the kind or branch of practice in which the person named
therein is engaged or is to be engaged (_ib._, s. 3).

Any person residing in any town in another State which town adjoins
the boundary line of Connecticut, who was actually engaged in such
town, at the time of the passage of the act, in the practice of
medicine, surgery, or midwifery, or any branch of practice, may before
October 1st, 1893, obtain from the said board a like certificate on
filing such duplicated statements also showing that he is entitled to
such certificate under this section (_ib._, s. 4).

Except as above provided, no person shall after October 1st, 1893,
obtain a certificate of registration until he has passed a satisfactory
examination before a committee appointed by said board, nor until he
has filed with the said board duplicate certificates as aforesaid,
signed by a majority of one of said examining commissioners, stating
that they have found him qualified to practise either medicine,
surgery, or midwifery, and any person filing said certificates shall
receive from said board a certificate of registration (_ib._, s. 5).

The State board of health, in January, 1894, is to appoint three
examining commissions, each of five physicians nominated respectively
by the Connecticut Medical Society, the Connecticut Homœopathic
Medical Society, and the Connecticut Eclectic Medical Association, and
recommended by the said societies respectively as persons competent to
serve upon the said examining commissions. Appointments are to be made
thereafter from time to time by similar nominations (_ib._, s. 6 and 7).

The State board of health shall designate when and where the
commissions shall hold examinations, but shall call a meeting of a
commission within thirty days after the receipt of an application for
examination. Applicants shall be examined in anatomy, physiology,
medical chemistry, obstetrics, hygiene, surgery, pathology, diagnosis,
and therapeutics, including practice and materia medica. Each
commission shall frame its own questions and conduct its examinations
in writing, and both questions and answers shall be placed on file with
the board. Each applicant may choose by which of the commissions he
will be examined.

After rejection by any examining commission, the applicant shall not
be eligible to examination by another commission until after the
expiration of twelve months (_ib._, s. 8).

On the receipt of duplicate statements, the board shall transmit one
of them with a duplicate certificate of registration to the town clerk
of the town where the person filing the statement resides, and if he
does not reside in the State to the town clerk of the town in the State
nearest to his place of residence, and said clerk shall record the same
and return them to the person who filed them with the board (_ib._, s.
9).

The secretary of each medical society shall file with the secretary of
the State board of health a list of medical colleges or institutions
recognized as legal and reputable by his society or all of such
secretaries may agree upon a single list, and such list may be
corrected from time to time (_ib._, s. 10).

PENALTY.—The violation of sec. 10 shall be a misdemeanor, punishable
with a fine of from $100 to $300 for the first offence, and for each
subsequent offence by a fine of from $200 to $500 or imprisonment in
the county jail for from thirty to ninety days, or both (_ib._, s. 11);
swearing falsely to a statement is perjury (_ib._, s. 12).

FEES.—To the State board of health, on filing statements or
certificates, $2 (_ib._, s. 2, 3, 4, 5).

To examining commission, before examination, their expenses not
exceeding $10 (_ib._, s. 8).

To the town clerk, by State board of health out of the amount paid to
it, for recording, 25 cents (_ib._, s. 9).


DELAWARE.

QUALIFICATION.—It is unlawful to practise medicine or surgery without
a license (Laws 1887, vol. 18, c. 35, s. 1, as amended by Laws 1889,
vol. 18, c. 518).

The medical board of examiners for the State must grant a license
to any person applying therefor who shall produce a diploma from
a respectable medical college, or shall, upon full and impartial
examination, be found qualified for such practice (Rev. Stats., c. 47,
s. 3). The board consists of as many fellows of the Medical Society of
Delaware as the society deems proper (_ib._, s. 3).

The clerk of the peace of a county, on presentation of a license
issued by the board of examiners of the Homœopathic Medical Society
of Delaware State and Peninsula, under its corporate seal, signed by
its president and countersigned by its secretary, or of the license
provided by sec. 3, c. 47, of the Revised Statutes, or on the affidavit
of a person that he or she has practised medicine or surgery for eight
years continuously in the State, and upon such person registering his
name, the date of his graduation and college (if a graduate), and his
place of intended residence, must issue a license (_ib._, s. 2).

A person opening a transient office or assigning a transient office
by printed or written advertisement, must comply with the foregoing
provisions and pay special license fee for a license good only for one
year (Laws 1887, vol. 18, c. 35, s. 5).

PENALTY.—The violation of this law is a misdemeanor punishable by a
fine of from $100 to $300 (_ib._, s. 7).

EXCEPTIONS.—The present law exempts those who complied with the Act of
April 19th, 1883, and also regular practitioners of another State in
consultation with a lawful practitioner of medicine and surgery of this
State (_ib._, s. 4, 6).

FEES.—To clerk of the peace, for issuing license to practise, $10.50
(Laws 1887, vol. 18, c. 35, s. 4). For issuing annual license for
revenue of the State, $10.50 (Laws, vol. 13, c. 117, as amended, vol.
14, c. 16).

To secretary of board, for license, $10 (Rev. Stats., c. 47, s. 5).

A license fee to practise medicine, for the revenue of the State, is
also required (_ib._, s. 8; vol. 13, c. 117, as amended, vol. 14, Laws,
c. 16).


DISTRICT OF COLUMBIA.

REGISTRATION.—It is the duty of every physician, accoucheur, and
midwife practising medicine, or doing business, to register at the
office of the board of health, giving full name, residence, and place
of business, and in case of removal from one place to another in the
District to make a change in the register (Regulation of Board of
Health, August 28th, 1874, s. 8, legalized by resolution of Congress,
No. 25, s. 2, April 24th, 1880).

VIOLATION.—The violation of the foregoing provision is punishable by a
fine of from $25 to $200 for every offence (_ib._, s. 9).

QUALIFICATION.—All physicians required to register must do so upon a
license from some chartered medical society or upon a diploma from some
medical school or institution (_ib._, s. 11 [First]).


FLORIDA.

BOARDS OF EXAMINERS.—The governor appoints a board of medical
examiners for each judicial circuit, and a board of homœopathic
examiners for the State (Rev. Stats., 1892, s. 801).

The circuit board is composed of three practising physicians of known
ability, graduates in good standing of a medical college, recognized
by the American Medical Association, residents of the circuit;
the homœopathic board is composed of three practising homœopathic
physicians of known ability, graduates in good standing of a medical
college recognized by the American Institute of Homœopathy (_ib._, s.
802).

QUALIFICATION.—It is the duty of the board of examiners to examine
thoroughly every applicant, upon the production of a medical diploma
from a recognized college, upon anatomy, physiology, surgery,
gynæcology, therapeutics, obstetrics, and chemistry, but no preference
is given to any school of medicine; and it is the duty of the board of
homœopathic medical examiners to examine thoroughly every applicant,
upon the production of his diploma from a college recognized by the
American Institute of Homœopathy, on anatomy, physiology, surgery,
gynæcology, materia medica, therapeutics, obstetrics, and chemistry,
but no preference is given to any school of medicine (Rev. Stats.,
1892, s. 806).

When the board is satisfied as to the qualifications of the applicant,
they grant a certificate which entitles him to practise medicine in any
county, when recorded (_ib._, s. 807). Any two members of the board
may grant a certificate. Any member may grant a temporary certificate,
upon examination, until the next regular meeting, at which time the
temporary certificate ceases to be of effect (_ib._, s. 808). Before he
shall be entitled to practise, the certificate must be recorded in the
office of the clerk of the circuit court of the county in which he may
reside or sojourn; and the clerk must certify thereon, under official
seal, the fact and date of the record, and return the certificate
(_ib._, s. 809).

A practitioner engaged in the practice of medicine in any department
prior to May 31st, 1889, upon the production of a diploma from a
medical college recognized by the American Medical Association, is
granted a certificate, without further examination and without charge
(_ib._, s. 811).

EXCEPTIONS.—This act is not applicable to persons who have complied
with prior laws, nor to females practising midwifery, strictly as such.
No other person shall practise medicine in any of its branches or
departments, without having obtained and recorded a certificate (_ib._,
s. 812).

PENALTY.—Practising as a physician without a certificate is punishable
by imprisonment not exceeding six months, or a fine not exceeding $200
(_ib._, s. 2,669).

FEES.—To clerk, legal fee for recording (_ib._, s. 809).

To board, $10 from each applicant whether certificate granted or not
(_ib._, s. 810).


GEORGIA.

The Code of 1882, s. 1,409 (_a_) as amended by chap. 413, Laws 1882-83,
provides that—

QUALIFICATION.—No person is to practise medicine, unless he was
theretofore legally authorized, or is hereafter authorized by a diploma
from an incorporated medical college, medical school or university, or
has after attending one or more full terms at a regularly chartered
medical college, been in active practice of medicine since the year
1866, or was by law authorized to practise medicine in 1866, and by
compliance with the statute.

DEFINITION.—To “practise medicine” means to suggest, recommend,
prescribe, or direct, for the use of any person, any drug, medicine,
appliance, apparatus, or other agency, whether material or not
material, for the cure, relief, or palliation of any ailment or disease
of mind or body, or for the cure or relief of any wound, fracture, or
other bodily injury, or any deformity, after having received or with
the intent of receiving therefor, either directly or indirectly, any
bonus, gift, or compensation (_ib._, s. 1,409 [_b_]).

REGISTRATION.—Every person now lawfully engaged in practice must
register on or before December 1st, 1881; every person hereafter duly
qualified shall, before commencing to practise, register in the office
of the clerk of the superior court of the county wherein he resides and
is practising, or intends to practise, his name, residence, and place
of birth, together with his authority; he shall subscribe or verify,
by oath or affirmation, before a person duly qualified to administer
oaths under the laws of this State, an affidavit containing such facts,
and whether such authority is by diploma or license, and the date of
the same, and by whom granted, which shall be exhibited to the county
clerk, before the applicant is allowed to register, and which, if
wilfully false, is punishable as false swearing (_ib._, s. 1,409 [_c_]).

REMOVAL.—A registered physician changing his residence from county
to county must register in the clerk’s office of the county to which
he removes and wherein he intends to reside and to practise medicine
(_ib._, s. 1,409 [_d_]).

PENALTY.—The violation of this law or practising, or offering to
practise, without lawful authority, or under cover of a diploma or
license illegally obtained, is a misdemeanor, punishable by a fine of
from $100 to $500, or imprisonment from thirty to ninety days, or both
(_ib._, s. 1,409 [_e_]).

EXCEPTIONS.—Commissioned medical officers of the United States army or
navy, or United States marine hospital service, and women practising
only midwifery, are not affected (_ib._, s. 1,409 [_f_]).

MEDICAL BOARDS.—All medical boards are abolished, and only the
qualifications of practitioners of medicine set forth above are
required (_ib._, s. 1,409 [_g_]).

FEES.—To county clerk, fifty cents for each registration (_ib._, s.
1,409 [_c_]).

TAX.—On practitioners of physic, $5 per annum (_ib._, s. 809).


IDAHO.

QUALIFICATION.—No person can lawfully practise medicine or surgery who
has not received a medical education, and a diploma from a regularly
chartered medical school, having a _bona fide_ existence when the
diploma was granted (Rev. Stats., 1887, s. 1,298).

A physician or surgeon must file for record with the county recorder
of the county in which he is about to practise, or where he practises,
a copy of his diploma, at the same time exhibiting the original, or
a certificate from the dean of a medical school certifying to his
graduation (_ib._, s. 1,298 [_a_]).

When filing the copy required, he must be identified as the person
named in the papers, by the affidavit of two citizens of the county, or
by his affidavit taken before a notary public or commissioner of deeds
for this State; and the affidavit is filed in the office of the county
recorder (_ib._, s. 1,298 [_b_]).

PENALTY.—Practising without complying with the act is a misdemeanor,
punishable by a fine of from $50 to $500, or imprisonment in a county
jail from thirty days to six months, or both fine and imprisonment for
each offence.

Filing or attempting to file as his own the diploma or certificate of
graduation of another, or a forged affidavit of identification, is a
felony; subject to fine and imprisonment (_ib._, s. 1,298 [_c_]; _ib._,
s. 6,312).

EXCEPTIONS.—The act is not applicable to a person in an emergency
prescribing or giving advice in medicine or surgery, in a township
where no physician resides within convenient distance, nor to those
who have practised medicine or surgery in this State for ten years
preceding the passage of this act, nor to persons prescribing in their
own families, nor to midwifery in places where no physician resides
within convenient distance (_ib._, s. 1,298 [_e_]; as amended by Act of
February 7th, 1889).

FEES.—No special fees are enumerated in the statute. The county
recorder’s fees for services are prescribed in Rev. Stats., 1887, s.
2,128.


ILLINOIS.

QUALIFICATION.—No person can lawfully practise medicine in any of
its departments unless he possesses the qualifications required. If a
graduate in medicine, he must present his diploma to the State Board
of Health for verification as to its genuineness. If the diploma is
found genuine, and from a legally chartered medical institution in good
standing, and if the person named therein be the person claiming and
presenting the same, the board must issue a certificate conclusive as
to his right to practise medicine. If not a graduate, the person must
present himself before the said board and submit to examination, and
if the examination is satisfactory the board must issue certificate
(Laws 1887, p. 225, s. 1).

The verification of a diploma consists in the affidavit of the holder
and applicant that he is the person therein named. The affidavit may be
taken before any person authorized to administer oaths, and attested
under the hand and official seal of such officer (if he have a seal).
Swearing falsely is perjury. Graduates may present their diplomas and
affidavits by letter or proxy (_ib._, s. 3).

All examinations of persons not graduates or licentiates are made by
the board; and certificates authorize their possessor to practise
medicine and,surgery (_ib._, s. 4).

The certificate must be recorded in the office of the clerk of the
county in which the holder resides within three months from its date,
and the date of recording indorsed. Until recorded, the holder cannot
lawfully exercise the rights and privileges conferred. A person
removing to another county to practise must record his certificate in
the county to which he removes (_ib._, s. 5).

Examinations may be wholly or partly in writing and shall be of
elementary and practical character, but sufficiently strict to test the
qualifications of the candidate as a practitioner (_ib._, s. 8).

The board may refuse to issue a certificate to a person guilty of
unprofessional or dishonorable conduct, and may revoke for like causes.
The applicant in case of a refusal or revocation may appeal to the
governor and his decision will be final (_ib._, s. 9).

DEFINITION.—“Practising medicine” is defined as treating, operating
on, or prescribing for any physical ailment of another. The act
does not prohibit services in case of emergency, nor the domestic
administration of family remedies, and does not apply to commissioned
surgeons of the United States army, navy, or marine hospital service in
the discharge of official duty (_ib._, s. 10).

ITINERANT VENDER.—An itinerant vender of drug, nostrum, ointment, or
appliance intended for treatment of disease or injury, or professing
by writing, printing, or other method to cure or treat disease or
deformity by drug, nostrum, manipulation, or other expedient, must pay
a license fee of $100 per month into the treasury of the board. The
board may issue such license. Selling without a license is punishable
by fine of from $100 to $200 for each offence. The board may for cause
refuse a license (_ib._, s. 11).

PENALTY.—Practising medicine or surgery without a certificate is
punishable by a forfeiture of $100 for the first offence, and $200 for
each subsequent offence; filing or attempting to file as his own the
certificate of another, or a forged affidavit of identification, is a
felony, punishable as forgery.

EXCEPTIONS.—The act saves for six months after its passage the right
of persons who have practised continuously for ten years in the State
prior to its passage, to receive a certificate under former act. But
all persons holding a certificate on account of ten years’ practice are
subject to all requirements and discipline of this act in regard to
their future conduct; all persons not having applied for or received
certificates within said six months, and all persons whose applications
have for the causes named been rejected, or their certificates revoked,
shall, if they practise medicine, be deemed guilty of practising in
violation of law (_ib._, s. 12).

PENALTY.—On conviction of the offence mentioned in the act, the court
must, as a part of the judgment, order the defendant to be committed to
the county jail until the fine and costs are paid (_ib._, s. 13).

FEES.—To the secretary of the board, for each certificate to a
graduate or licentiate, $5 (_ib._, s. 2).

For graduates or licentiates in midwifery, $2 (_ib._, s. 2).

To county clerk, usual fees for making record.

To treasury of board, for examination of non-graduates: $20, in
medicine and surgery; $10, in midwifery only.

If the applicant fails to pass, the fees are returned. If he passes, a
certificate issues without further charge (_ib._, s. 7).


INDIANA.

QUALIFICATION.—It is unlawful to practise medicine, surgery, or
obstetrics without a license (Act April 11th, 1885, s. 1).

The license is procured from the clerk of the circuit court of the
county where the person resides or desires to locate to practise; it
authorizes him to practise anywhere within the State; the applicant
must file with the clerk his affidavit stating that he has regularly
graduated in some reputable medical college, and must exhibit to the
clerk the diploma held by him, his affidavit, and the affidavit of two
reputable freeholders or householders of the county stating that the
applicant has resided and practised medicine, surgery, and obstetrics
in the State continuously for ten years immediately preceding the
date of taking effect of this act, stating particularly the locality
or localities in which he has practised during the said period, and
the date and length of time in each locality; or his affidavit and
the affidavit of two reputable freeholders or householders of the
county, stating that he has resided and practised medicine, surgery,
and obstetrics in the State continuously for three years immediately
preceding the taking effect of this act, and stating particularly the
localities in which he practised during the said period, and the date
and length of time in each locality, and that he, prior to said date,
attended one full course of lectures in some reputable medical college.
The clerk must record the license and the name of the college in which
the applicant graduated, and the date of his diploma (_ib._, s. 2, as
amended by Act March 9th, 1891).

A license issued to a person who has not complied with the requirements
of sec. 2, or one procured by any false affidavit, is void (Act April
11, 1885, s. 3).

PENALTY.—Practising medicine, surgery, or obstetrics without a license
is a misdemeanor punishable with a fine of from $10 to $200 (_ib._, s.
4).

No cause of action lies in favor of any person as a physician, surgeon,
or obstetrician who has not prior to the service procured a license;
and money paid or property paid for such services to a person not so
licensed, or the value thereof, may be recovered back (_ib._, s. 5).

EXEMPTIONS.—Women practising obstetrics are exempted from the
provisions of the act (_ib._, s. 4).

FEES.—To clerk, for license, $1.50 (Act April 11th, 1885, as amended
Act March 9th, 1891).

REGISTRATION.—It is the duty of all physicians and accoucheurs to
register their name and post-office address with the clerk of the
circuit court of the county in which they reside (Act 1881, p. 37, s.
10).

FEES.—To the clerk, for registration, 10 cents (_ib._, s. 11).


IOWA.

QUALIFICATION.—Every person practising medicine, surgery, or
obstetrics, in any of their departments, if a graduate in medicine,
must present his diploma to the State board of examiners for
verification as to its genuineness. If the diploma is found genuine,
and is by a medical school legally organized and of good standing,
which the board determines, and if the person presenting be the
person to whom it was originally granted, then the board must issue
a certificate signed by not less than five physicians thereof,
representing one or more physicians of the schools on the board
(_sic_), and such certificate is conclusive. If not a graduate, a
person practising medicine or surgery, unless in continuous practice in
this State for not less than five years, of which he must present to
the board satisfactory evidence in the form of affidavits, must appear
before the board for examination. All examinations are in writing;
all examination papers with the reports and action of examiners are
preserved as records of the board for five years. The subjects of
examination are anatomy, physiology, general chemistry, pathology,
therapeutics, and the principles and practice of medicine, surgery, and
obstetrics. Each applicant, upon receiving from the secretary of the
board an order for examination, receives also a confidential number,
which he must place upon his examination papers so that, when the
papers are passed upon, the examiners may not know by what applicant
they were prepared. Upon each day of examination all candidates are
given the same set or sets of questions. The examination papers
are marked on a scale of 100. The applicant must attain an average
determined by the board; if such examination is satisfactory to at
least five physicians of the board, representing the different schools
of medicine on the board, the board must issue a certificate, which
entitles the lawful holder to all the rights and privileges in the act
provided (Laws 1886, c. 104, s. 1).

The board receives applications through its secretary. Five physicians
of the board may act as an examining board in the absence of the full
board; provided that one or more members of the different schools
of medicine represented in the State board of health shall also be
represented in the board of examiners (_ib._, s. 2).

The affidavit of the applicant and holder of a diploma that he is the
person therein named, and is the lawful possessor thereof, is necessary
to verify the same, with such other testimony as the board may require.
Diplomas and accompanying affidavits may be presented in person or by
proxy. If a diploma is found genuine and in possession of the person to
whom it was issued, the board, on payment of the fee to its secretary,
must issue a certificate. If a diploma is found fraudulent or not
lawfully in possession of the holder or owner, the person presenting
it, or holding or claiming possession, is guilty of a misdemeanor,
punishable with a fine of from $20 to $100 (_ib._, s. 3).

The certificate must be recorded in the office of the county recorder
in the county wherein the holder resides, within sixty days after its
date. Should he remove from one county to another to practise medicine,
surgery, or obstetrics, his certificate must be recorded in the county
to which he removes. The recorder must indorse upon the certificate the
date of record (_ib._, s. 4).

Any one failing to pass is entitled to a second examination within
twelve months without a fee; any applicant for examination, by notice
in writing to the secretary of the board, is entitled to examination
within three months from the time of notice, and the failure to
give such opportunity entitles such applicant to practise without a
certificate until the next regular meeting of the board. The board
may issue certificates to persons who, upon application, present a
certificate of having passed a satisfactory examination before any
other State board of medical examiners, upon the payment of the fee
provided in sec. 3 (_ib._, s. 6, as amended c. 66, Laws 1888, 22 Gen.
Assembly).

The board may refuse a certificate to a person who has been convicted
of felony committed in the practice of his profession, or in connection
therewith; or may revoke for like cause, or for palpable evidence of
incompetency, and such refusal or revocation prohibits such person
from practising medicine, surgery, or obstetrics, and can only be made
with the affirmative vote of at least five physicians of the State
board, in which must be included one or more members of the different
schools of medicine represented in the said board; the standing of a
legally chartered medical college from which a diploma may be presented
must not be questioned except by a like vote (_ib._, s. 7).

DEFINITION, EXCEPTIONS.—Any person is deemed practising medicine,
surgery, or obstetrics, or to be a physician, who publicly professes
to be a physician, surgeon, or obstetrician, and assumes the duties,
or who makes a practice of prescribing, or prescribing and furnishing
medicine for the sick, or who publicly professes to cure or heal by any
means whatsoever; but the act does not prohibit students of medicine,
surgery, or obstetrics from prescribing under the supervision of
preceptors or gratuitous services in case of emergency; nor does it
apply to women at the time of its passage engaged in the practice of
midwifery, nor does it prevent advertising, selling, or prescribing
natural mineral waters flowing from wells or springs, nor does it
apply to surgeons of the United States army, navy, or marine hospital
service, nor to physicians defined therein who have been in practice
in this State for five consecutive years, three years of which must
have been in one locality, provided such physician shall furnish the
State board with satisfactory evidence of such practice and shall
procure a proper certificate, nor to registered pharmacists filling
prescriptions, nor does it interfere with the sale of patent or
proprietary medicines in the regular course of trade (_ib._, s. 8).

PENALTY.—A person practising medicine or surgery without complying
with the act, and not embraced in the exceptions, or after being
prohibited as provided in sec. 7, is guilty of a misdemeanor punishable
with a fine of from $50 to $100, or imprisonment in the county jail
from ten to thirty days (_ib._, s. 9).

Filing or attempting to file as one’s own the diploma of another, or
the certificate of another, or a diploma or certificate with the true
name erased and the claimant’s name inserted, or a forged affidavit of
identification, is forgery (_ib._, s. 10).

FEES.—To county recorder, 50 cents (_ib._, s. 4).

To State board, for certificate to holder of diploma, $2 (_ib._, s. 3).

To secretary of State board, in advance, by candidate for examination,
$10 (_ib._, s. 6).

By practitioner for five years, $2 (_ib._, s. 8).


KANSAS.

QUALIFICATION.—It is unlawful for a person who has not attended two
full courses of instruction and graduated in some respectable school of
medicine, either of the United States or of some foreign country, or
who cannot produce a certificate of qualification from some State or
county medical society, and is not a person of good moral character, to
practise medicine in any of its departments for reward or compensation,
for any sick person; provided in all cases when any person has been
continuously engaged in practice of medicine for ten years or more, he
shall be considered to have complied with the provisions of the act
(Gen. Stats., 1889, s. 2,450).

PENALTY.—Practising or attempting to practise medicine in any of
its departments or performing or attempting to perform any surgical
operation in violation of the foregoing is punishable with a fine of
from $50 to $100; and a second violation, in addition to a fine, is
punishable with imprisonment in the county jail for thirty days; and
in no case wherein the act is violated shall the violator receive a
compensation for services rendered (_ib._, s. 2,451).


KENTUCKY.

QUALIFICATION.—It is unlawful for any person to practise medicine
in any of its branches who has not exhibited and registered in the
county clerk’s office, in the county in which he resides, his authority
to practise, with his age, address, place of birth, and the school
or system of medicine to which he proposes to belong. The person
registering must subscribe and verify by oath before such clerk an
affidavit containing such facts, which, if wilfully false, subjects the
affiant to punishment for perjury (Act 1893, April 10th, s. 2).

Authority to practise shall be a certificate from the State board of
health issued to any reputable physician who is practising, or who
desires to begin to practise, who possesses a diploma from a reputable
medical college legally chartered under the laws of this State, or a
diploma from a reputable and legally chartered medical college of some
other State or country, indorsed as such by said board, or satisfactory
evidence from the applicant that he was reputably and honorably engaged
in the practice of medicine in the State prior to February 23d, 1864.
Applicants may present their credentials by mail or proxy (_ib._, s. 3).

Nothing in the law authorizes any itinerant doctor to register or
practise medicine (_ib._, s. 4).

The board may refuse a certificate to any individual guilty of grossly
unprofessional conduct of a character likely to deceive or defraud the
public, and may, after due notice and hearing, revoke such certificates
for like cause. In cases of refusal or revocation the applicant may
appeal to the governor, whose decision affirming or overruling the
decision of the board shall be final (_ib._, s. 5).

SYSTEMS, EXCEPTIONS.—The law does not discriminate against any
peculiar school or system of medicine, nor prohibit women from
practising midwifery, nor prohibit gratuitous services in case of
emergency, nor apply to commissioned surgeons in the United States
army, navy, or marine hospital service, nor to a legally qualified
physician of another State called to see a particular case or family,
but who does not open an office or appoint a place in the State to meet
patients or receive calls (_ib._, s. 6).

PENALTY.—Any person living in this State or coming into this State who
shall practise medicine or attempt to practise medicine in any of its
branches, or perform or attempt to perform any surgical operation for
or upon any person for reward or compensation in violation of this law,
shall be punished with a fine of $50, and on each subsequent conviction
by a fine of $100 and imprisonment for thirty days, or either, or both;
and in no case where any provision of this law has been violated shall
the violator be entitled to receive compensation for services rendered.
To open an office for such purpose or to announce to the public in any
other way a readiness to practise medicine in any county shall be to
engage in the practice of medicine (_ib._, s. 8).

FEES.—To the county clerk, for all services required, 50 cents (_ib._,
s. 1).


LOUISIANA.

CONSTITUTIONAL PROVISION.—The general assembly must provide for
the interest of State medicine in all its departments, and for the
protection of the people from unqualified practitioners of medicine
(Const. 1879, Art. 178).

QUALIFICATION.—No person is allowed to practise medicine or surgery as
a means of livelihood in any of its departments without first making
affidavit before a judge, justice of the peace, clerk of district
court, or notary public in the parish wherein he resides, of his having
received the degree of doctor of medicine from a regularly incorporated
medical institution of respectable standing, in America or in Europe,
and designating its name and locality, and the date of his diploma;
the degree is manifested by the diploma, and the respectable standing
of the institution is evidenced by the indorsement or certificate of
the State board of health, written on the face of the diploma, and
signed by its secretary; the affidavit must contain the full name of
the person making the same, the date and place of his birth, and the
names of the places where he may have previously practised medicine or
surgery; a record of the diplomas certified must be presented by the
State board of health, and copies thereof, certified by the secretary,
are received in evidence. The State board of health is required
to certify the diploma of any medical institution of credit and
respectability without regard to its system of therapeutics and whether
the same be regular, homœopathic, or eclectic (Act 1882, No. 31, s. 1).

The affidavit required by sec. 1 must be recorded in the office of the
clerk of the district court of the parish; the clerk must certify the
recordation by indorsement on the original affidavit, which the affiant
must transmit to the State board of health; a copy of the original
affidavit, duly certified by the clerk of the court, is admissible in
evidence (_ib._, s. 2).

EXCEPTIONS.—The provisions of the act do not apply to female
practitioners of midwifery as such, nor to persons who had been
practising medicine or surgery in the State without diplomas for five
years prior to the passage of the act, nor to persons who had been
practising medicine or surgery from a regularly incorporated medical
institution of reputable standing in America or in Europe, for ten
years prior to the passage of the act, provided such a practitioner
make affidavit before a judge, justice of the peace, notary public,
or the clerk of the court of the parish wherein he resides, setting
forth the full name of the affiant, the date and place of his birth,
the date of his diploma, if he have any, the name and locality of the
institution by which it was made, the date and place where he began the
practice of medicine in Louisiana, and the names of the places where he
may have previously practised medicine or surgery such affidavit must
be transmitted or delivered to the State board of health, and entitles
the affiant to be placed on the list of registered physicians or
surgeons. The State board of health must preserve said affidavits, and
a copy signed by the secretary is received in evidence by the courts.
To make a false affidavit is perjury (_ib._, s. 3).

EVIDENCE.—A copy of the affidavit recorded by the clerk of the
district court, certified by him, is _prima facie_ evidence that the
person making the affidavit is a duly registered physician or surgeon,
and a certified copy of the original affidavit filed with the State
board of health, or a certificate emanating from the said board, that
the name of the person mentioned in the certificate is on the list of
registered physicians and surgeons, is conclusive evidence (_ib._, s.
4).

It is the duty of the State board of health to publish annually in the
official journal of the State, and if there is none, in one of the
daily newspapers published in New Orleans, a list of the registered
physicians and surgeons, and their places of residence, and such
published list is evidence in the courts that the person is duly
registered. The board is required to strike from said list the names
of persons convicted of any infamous crimes by any court of this State
or of the United States, or of any State of the United States, whether
prior or posterior to registration; and is empowered to strike from the
list persons who die after registration (_ib._, s. 5).

CIVIL PENALTY.—A practitioner of medicine or surgery failing to comply
with this act shall not be exempt from military or jury duty, nor be
permitted to collect fees for services rendered, nor be allowed to
testify as a medical or surgical expert in legal or State medicine,
in any court, nor to execute any certificate as surgeon or physician,
nor to hold any medical office, nor to be recognized by the State, or
any parish, or municipal corporation, as a physician or surgeon, nor
entitled to enjoy any of the privileges, rights, or exemptions granted
to physicians and surgeons by the laws of this State; and shall forfeit
$100 for each violation, to be recovered in a civil action in the name
of and for the benefit of the Charity Hospital at New Orleans, and in
addition shall be subject to criminal prosecution (_ib._, s. 6).

EXCEPTIONS.—The act is not applicable to practitioners of medicine or
surgery residing and practising in other States, who may be summoned in
special instances to attend patients in the State of Louisiana by any
registered physician (_ib._, s. 7).

PENALTY.—Whoever shall practise or offer to practise medicine or
surgery, for pay, without complying with the foregoing act, is guilty
of a misdemeanor, punishable by a fine of not less than $50 or
imprisonment for not more than three months, or both, at the discretion
of the court (Act 1886, No. 55, s. 1).

No criminal prosecution shall bar the imposition of a fine by civil
process, nor shall the imposition of such fine bar criminal prosecution
(_ib._, s. 2).

EXCEPTIONS.—This act is not applicable to practitioners of medicine or
surgery residing and practising in other States, who may be summoned
in special instances to attend patients in the State by any registered
physician (_ib._, s. 3).

FEES.—To board of health, for every diploma certified, 50 cents
(_ib._, s. 1).

To officer before whom affidavit is made, 50 cents (_ib._, s. 2, 3).

Recording same, $1 (_ib._, s. 2).

To clerk of court, for copy of original affidavit, 50 cents (_ib._, s.
2).

To State board of health, for copy of original affidavit, 50 cents
(_ib._, s. 3).


MAINE.

QUALIFICATION, PENALTY.—No person who has not received a medical
degree at a public medical institution in the United States, or a
license from the Maine Medical Association, shall recover compensation
for medical or surgical services, unless previous to such service he
had obtained a certificate of good moral character from the municipal
officers of the town where he then resided (Rev. Stats., 1883, c. 13,
s. 9).


MARYLAND.

QUALIFICATION.—By the Act of 1892, c. 296, s. 1, 39, it is provided
that every person not now practising medicine and surgery, who shall
hereafter begin to practise medicine and surgery in any of its
departments, shall possess the qualifications required by the act.

There are two boards of examiners, representing the medical and
chirurgical faculty of the State and the State Homœopathic Medical
Society respectively; each consists of seven members, appointed
respectively by those societies, physicians actually engaged in the
practice of medicine, and of recognized ability and honor; but no
physician having a pecuniary interest in the trade of pharmacy can be
appointed (_ib._, s. 2).

Suitable provisions must be made by each examining board to prepare a
schedule of written examination upon anatomy, physiology, chemistry,
surgery, practice of medicine, materia medica and therapeutics,
obstetrics, gynæcology, pathology, medical jurisprudence and hygiene;
the same standard of excellence is required from all candidates; in
therapeutics and practice, the questions must be in harmony with the
tenets of the school selected by the candidate; and the standard
of acquirements therein is established by each board itself. The
examination must be fundamental in character and such as can be
answered in common by all schools of practice (_ib._, s. 1, 42).

Application for license is made in writing to the president of either
board of medical examiners which the applicant may elect, with
satisfactory proof that the applicant is more than twenty-one years of
age, is of good moral character, has obtained a competent common-school
education, and has either received a diploma conferring the degree
of Doctor of Medicine from some legally incorporated medical college
in the United States, or a diploma or license conferring the full
right to practise all the branches of medicine and surgery in some
foreign country, and has also both studied medicine three years and
attended three courses of lectures in different years in some legally
incorporated medical college or colleges prior to the granting of
the diploma or foreign license; two courses of medical lectures both
begun or completed within the same calendar year do not satisfy the
requirement; this condition is not applicable to students who shall be
in their second year in a medical college, nor to physicians practising
at the time of the passage of the act. Such proof is made, if required,
upon affidavit, upon making the application and proof and payment of
the fee. The president of the board, if satisfied, must direct the
secretary to issue an order for examination, and when the applicant
shall have passed an examination as to proficiency satisfactory to the
board, the president must grant a license to practise medicine and
surgery (_ib._, s. 1, 43).

All of the examinations are conducted so that the name, school of
graduation, and preparatory training of the applicant shall not be made
known to the board till his examination papers have been graded. An
applicant receiving a majority of the votes of the board is considered
to have passed a satisfactory examination and is entitled to a license
(_ib._, s. 1, 44).

The board must refuse a license to an applicant radically deficient in
any essential branch. In case of a failure, the candidate must have
the privilege, after the expiration of one year from his rejection, of
another examination by the board to which his application was first
made (_ib._, s. 1, 46).

A license, or a certified copy, must be filed with the clerk of the
circuit court of the county or city in which the licensee may practise;
the number of the book and page containing the recorded copy must be
noted in the body of license.

EVIDENCE.—The records have the same weight as evidence that is given
to the record of conveyances of land (_ib._, s. 1, 48).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the
United States army, navy, or marine hospital service, to physicians
or surgeons in actual consultation from other States, nor to persons
temporarily practising under the supervision of an actual medical
preceptor, nor to a midwife or person who may render gratuitous
services in case of emergency (_ib._, s. 1, 49, 51).

PENALTY.—Practising, or attempting to practise, without a license is
a misdemeanor punishable with a fine of from $50 to $200 for each
offence, with confinement in jail, in default of payment, till fine
and costs are paid; a person so practising is debarred from recovering
compensation (_ib._, s. 1, 50).

FEES.—To secretary of board, before examination, $10 (_ib._, s. 1, 45).

To clerk of court, for registration, $1 (_ib._, s. 1, 48).


MASSACHUSETTS.

In Massachusetts there is no statute upon this subject.


MICHIGAN.

QUALIFICATION.—It is unlawful to practise medicine or surgery or any
branch except dentistry, without the prescribed qualifications and
registration in the office of the county clerk (Laws 1883, c. 167, s.
1).

A person who was practising when the law took effect, and had been
practising continuously for at least five years prior thereto in the
State, is deemed qualified to practise medicine after registration
(_ib._, s. 2, as amended 1887, c. 268).

A graduate of a legally authorized medical college in the State, or
any of the United States, or any other country, is deemed qualified to
practise medicine and surgery in all departments after registration.
A student or undergraduate is not prohibited from practising with
and under the immediate supervision of a person legally qualified to
practise medicine and surgery (_ib._).

A person qualified registers by filing with the county clerk of the
county where he practises, or intends to practise, a sworn statement
setting forth, if actually engaged in practice, the length of time
he has been engaged in such continuous practice; if a graduate of a
medical college, the name and location of the same, when he graduated
and how long he attended the same, and the school of medicine to which
he belongs; if a student or undergraduate, how long he has been engaged
in the study of medicine and where, and if he has attended a medical
college, its name and location and the length of his attendance,
and when, and the name and residence of the physician under whose
instruction he is practising, or intends to practise. The statement is
to be recorded by the clerk (_ib._).

PENALTY.—No person practising medicine, surgery, or midwifery can
collect pay for professional services unless at the time of rendering
such services he was duly qualified and registered (_ib._, s. 4).

Advertising, or holding out to the public, as authorized to practise
medicine or surgery, when not authorized, is a misdemeanor punishable
with a fine of from $5 to $50 for each offence (_ib._, s. 7).

FEES.—To county clerk, for recording statement, 50 cents (_ib._, s. 2).


MINNESOTA.

BOARD OF EXAMINERS.—The governor appoints a board of medical
examiners of nine members, no one of whom can be a member of a college
or university having a medical department, and two of whom must be
homœopathic physicians (Act 1887, c. 9, s. 1).

QUALIFICATION.—Persons commencing the practice of medicine and surgery
in any of its branches must apply to the board for a license, and at
the time and place designated by the board, or at a regular meeting,
submit to an examination in anatomy, physiology, chemistry, histology,
materia medica, therapeutics, preventive medicines, practice of
medicine, surgery, obstetrics, diseases of women and children, of the
nervous system, of the eye and ear, medical jurisprudence, and such
other branches as the board deems advisable, and present evidence of
having attended three courses of lectures of at least six months each;
the examination must be scientific and practical, but of sufficient
severity to test the candidate’s fitness to practise medicine and
surgery. When desired, the examination may be conducted in the presence
of the dean of any medical school or the president of any medical
society of this State. After examination, the board must grant, with
the consent of at least seven members, a license to practise medicine
and surgery, which may be refused or revoked for unprofessional,
dishonorable, or immoral conduct; and in case of refusal or revocation,
the applicant may appeal to the governor (_ib._, s. 3).

The license must be recorded with the clerk of the district court in
the county in which the licensee resides; if he moves into another
county he must procure a certified copy of his license from the said
clerk and file it with the clerk of the district court in the latter
county (_ib._, s. 4).

PENALTY.—To practise without a license is a misdemeanor, punishable
by a fine of from $50 to $100, or imprisonment in county jail from
ten to ninety days, or both. Appending “M.D.” or “M.B.” to name, or
prescribing, directing, or recommending for use any drug or medicine or
other agency for the treatment, care, or relief of any wound, fracture,
or bodily injury, infirmity, or disease, is regarded as practising
medicine.

EXCEPTIONS.—The act is not applicable to dentists (_ib._, s. 6), nor
to commissioned surgeons of the United States army or navy, nor to
physicians or surgeons in actual consultation from other States or
Territories, nor to actual medical students practising medicine under
the direct supervision of a preceptor (_ib._, s. 5).

All persons licensed under the Act of 1883, c. 125, are regarded as
licensed under this act (_ib._, s. 7).

FEES.—To treasurer of board, for examination, $10.


MISSISSIPPI.

QUALIFICATION.—A practitioner of medicine must obtain a license from
the State board of health (Code 1892, s. 3,243).

Application is made in writing; and an examination is made in anatomy,
chemistry, obstetrics, materia medica, physiology, pathology, surgery,
and hygiene, and if the applicant is found by the board to possess
sufficient learning in those branches, and of good moral character, the
board issues a license to practise medicine, signed by each member who
approves (_ib._, s. 3,244).

The application must state the applicant’s full name, place of
residence, and post-office address, nativity and age, time spent in
medical studies, name and post-office address of the preceptor under
whom his medical studies were pursued, the courses of medical lectures
attended, the name of medical schools attended; if a graduate of a
medical college, the name thereof; the time spent in a hospital, the
time spent in the practice of medicine, if any, the school or system of
practice chosen, and references as to his personal character (_ib._, s.
3,245).

Examinations are to be conducted at the capital on the first Tuesday
in April and October annually, and continue until all applicants are
examined and the examinations are approved or disapproved; they are
upon written questions and answers, and no distinction can be made
between applicants because of different systems or schools of practice.

The license must be filed in the office of the clerk of the circuit
court of the county in which the licensee resides, within sixty days
from the date of its issue; otherwise it becomes void. The clerk must
record the same with his certificate of filing and deliver the original
to the licensee. When the licensee changes the county of his residence
and usual practice, he must file the original or a certified copy of
license, or record, in the office of said clerk in the county into
which he shall move and practise within sixty days of the time of his
removal, to be there recorded (_ib._, s. 3,249).

The board may issue a duplicate in place of a lost license (_ib._, s.
3,250).

The secretary of the board may issue a temporary license which shall
be valid until the next succeeding meeting of board, such license to
show its date of issue, otherwise to be void; it must be recorded as a
permanent license is required to be; only one temporary license shall
ever be issued to the same person, and it shall always be made to an
individual and not to a partnership (_ib._, s. 3,251).

Physicians practising by virtue of a license under prior laws are
not required to obtain a license under this law and may continue
in practice under their licenses, but they must comply with the
requirements of this law with reference to recording (_ib._, s. 3,252).

PENALTY.—To practise without an examination and a license is
punishable with a fine of from $20 to $200, or to imprisonment in the
county jail not to exceed thirty days (_ib._, s. 1,258).

EXCEPTIONS.—Females engaged in the practice of midwifery need no
license for that employment (_ib._, s. 3,253).

NON-RESIDENTS.—Licensed physicians residing without the State,
and whose practice extends into it, may obtain a license without
examination by presenting an application in the form prescribed;
whereupon the secretary of the board must issue a license in the
name of the board and the license must be recorded as hereinbefore
provided, in each county in which the licensee shall practise (_ib._,
s. 3,254).

FEES.—To board, before examination, $10.

To secretary, before examination, 25 cents (_ib._, s. 3,247).

To secretary, for temporary license, 25 cents (_ib._, s. 3,251).

To secretary, for license to non-resident, 25 cents (_ib._, s. 3,245).

To the clerk of the court, for recording, his legal fees (_ib._, s.
3,249).


MISSOURI.

QUALIFICATION.—Every person practising medicine and surgery, in any
of their departments, must possess the qualifications required. If a
graduate of medicine, he must present his diploma to the State board of
health for verification as to its genuineness. If the diploma is found
to be genuine, and the person named therein to be the person claiming
and presenting the same, the board must issue a certificate which is
conclusive of the right to practise. If not a graduate, he must submit
to such examination as the board shall require, and if the examination
is satisfactory to the examiners the board must issue its certificate
in accordance with the facts, and the holder shall be entitled to all
the rights and privileges herein mentioned (Rev. Stats., 1889, s.
6,871).

The board must issue certificates to all who furnish satisfactory
proof of having received a diploma or license from a legally chartered
medical institution in good standing, of whatever school or system of
medicine, and shall not make any discrimination against the holders of
genuine licenses or diplomas under any school or system of medicine
(_ib._, s. 6,872).

The verification of a diploma consists in the affidavit of the holder
and applicant that he is the lawful possessor of the same, and the
person therein named; the affidavit may be taken before any person
authorized to administer oaths, and shall be attested under the hand
and official seal of such officer, if he have a seal. Graduates may
present their diplomas and affidavits by letter or proxy (_ib._, s.
6,873).

All examinations are made directly by the board, and the certificates
authorize the possessor to practise medicine and surgery in the State
(_ib._, s. 6,874).

The certificate must be recorded in the office of the county clerk of
the county in which the holder resides and the record must be indorsed
thereon; a person moving to another county to practise must procure an
indorsement to that effect on the certificate from the said clerk, and
have the certificate recorded in the office of the clerk of the county
to which he removes (_Ib._, s. 6,875).

Examinations may be made wholly or partly in writing and must be of an
elementary and practical character, but sufficiently strict to test the
qualifications of the candidate as a practitioner (_Ib._, s. 6,877).

The board may refuse a certificate to an individual guilty of
unprofessional or dishonorable conduct, and may revoke a certificate
for like causes after giving the accused an opportunity to be heard
(_Ib._, s. 6,878).

DEFINITION, EXCEPTION.—A person is regarded as practising medicine who
professes publicly to be a physician and to prescribe for the sick,
or who appends to his name “M.D.,” but students are not prohibited
from prescribing under the supervision of a preceptor, and gratuitous
services may be rendered in case of emergency, and the act does not
apply to commissioned surgeons of the United States army or navy or
marine hospital service (_ib._, s. 6,879).

ITINERANT VENDERS.—Every itinerant vender of any drug, nostrum,
ointment, or appliance intended for the treatment of disease or
injury, or who publicly professes to cure or treat disease, injury, or
deformity by any drug, nostrum, manipulation, or other expedient, must
pay a license fee of $100 per month; the violation of this section is a
misdemeanor, punishable with a fine not exceeding $500 or imprisonment
in the county jail not to exceed six months, or both (_ib._, s. 6,880).

PENALTY.—The violation of the provisions of this act is a misdemeanor
punishable with a fine of from $50 to $500, or imprisonment in the
county jail for from thirty to three hundred and sixty-five days, or
both, for each offence; filing or attempting to file the certificate
of another, or a forged affidavit or identification, is a felony
punishable as forgery in the second degree, but the provisions of this
article do not apply to persons who had been practising five years in
the State prior to 1883 (_ib._, s. 6,881).

FEES.—To the secretary of the board, for examining a genuine diploma,
$1.

If fraudulent or not owned by the possessor, $20 (_ib._, s. 6,873).

To the clerk, for recording, the usual fees (_ib._, s. 6,875).


MONTANA.

BOARD OF EXAMINERS.—The governor, with the advice and consent of the
council, appoints seven learned, skilled, and capable physicians who
have been residents for not less than two years, no more than two from
the same county, to constitute the board of examiners (Act of February
28th, 1889, s. 1).

Meetings of the board for examination are required to be held at the
capital and such other central points as the board may select, on the
first Tuesday of April and October in each year, and at other times as
the board may determine. The board must keep a record of all applicants
for a certificate, with their age, time spent in the study of medicine,
name, and the location of all institutions granting to applicants
degrees or certificates of lectures in medicine or surgery, and whether
the applicant was rejected or received a certificate, and the register
is _prima facie_ evidence of matters therein recorded (_ib._, s. 2).

QUALIFICATION.—Every person wishing to practise medicine or surgery
in any of their departments shall do so only upon complying with the
requisites of this act. If a graduate in medicine, he must present
his diploma to the board for verification as to its genuineness. If
it be found genuine and issued by a medical school legally organized
and in good standing, whose teachers are graduates of a legally
organized school, which fact the board determines, and if the person
presenting and claiming the diploma be the person to whom it was
originally granted, the board must issue its certificate, which shall
be conclusive of the holder’s right to practise. Any person coming to
the State may present his diploma to any member of the board, who may
issue a certificate good till the board’s next regular meeting. If
not a graduate, the person must present himself to the board for such
examination as may be required, unless he shall have been in continuous
practice in the State for not less than ten years, of which fact he
must present satisfactory evidence in the form of affidavits to the
board (_ib._, s. 3).

All persons entitled to practise under the ten-year provision and all
persons commencing the practice of medicine and surgery in any of
its branches shall apply to the board for a certificate, and at the
time and place designated by the board, or at the regular meeting, be
examined in anatomy, physiology, chemistry, histology, materia medica,
therapeutics, preventive medicines, practice of medicine, surgery,
obstetrics, diseases of women and children, diseases of the nervous
system, diseases of the eye and ear, medical jurisprudence, and such
other branches as the board may deem advisable, and present evidence of
having practised the required term of ten years, or of having attended
three courses of lectures of at least four months each; the examination
must be both scientific and practical, and of sufficient thoroughness
and severity to test the candidate’s fitness to practise medicine and
surgery. The examination may be held in the presence of the dean of any
medical school or of the president of any medical society of the State.
After the examination, the board must grant to a candidate who is found
qualified, a certificate to practise medicine and surgery. The board
may refuse or revoke a certificate for unprofessional, dishonorable,
or immoral conduct, or may refuse a certificate to any one who may
publicly profess to cure or treat diseases, injuries, or deformities
in such manner as to deceive the public. In cases of refusal or
revocation, the aggrieved applicant may appeal to the district court of
the county of his application (_ib._, s. 4).

Certificates must be recorded within sixty days after their date in the
office of the county recorder in the county where the holder resides;
or in case of removal certificates must be recorded in the county to
which the holder removes. The county recorder must indorse on the
certificate the date of its record (_ib._, s. 5).

EXCEPTIONS.—The act does not apply to midwives of skill and experience
attending cases of confinement, nor to commissioned surgeons of the
United States army or navy in the discharge of their official duties,
nor to physicians or surgeons in actual consultation from other States
and Territories, nor to students practising medicine under the direct
supervision of a preceptor, nor to gratuitous services in cases of
emergency (_ib._, s. 6).

PENALTY.—Violation of the act is a misdemeanor, punishable with a fine
of from $100 to $500, or imprisonment in the county jail from thirty to
ninety days, or both.

DEFINITION.—Any person is regarded as practising within the meaning of
the act who appends “M.D.” or “M.B.” to his name, for a fee prescribes
medicine, operates in surgery, attends in obstetrics, or recommends for
the use of any sick person the use of any drug or medicine or other
agency of treatment, cure, or relief of any wound, fracture, or bodily
injury or disease, as a physician or surgeon (_ib._, s. 7).

RE-EXAMINATION.—Any one failing to pass the examination is entitled to
a second examination within six months without fee (_ib._, s. 8).

FEES.—To the treasurer of the board, for examination, $15 (_ib._, s.
4).

To the secretary of the board, for examination, in advance, $15 (_ib._,
s. 8).

To the county recorder, for recording, the usual fee (_ib._, s. 5).

To the county attorney, for prosecuting a violation, to be charged as
costs, $5 (_ib._, s. 7).


NEBRASKA.

QUALIFICATION.—It is unlawful for any person to practise medicine,
surgery, or obstetrics, or any of their branches, without having
obtained and registered a certificate. No person is entitled to a
certificate unless he be a graduate of a legally chartered medical
school or college in good standing. The qualifications are determined
by the State board of health. The act does not prevent physicians
residing in other States from visiting patients in consultation with
resident physicians who have complied. (Act of 1891, c. 35, s. 7).

A medical school is defined as a medical school or college which
requires a previous examination for admission to its courses of study,
and which requires for granting the degree of “M.D.” attendance on
at least three courses of lectures of six months each, no two of
said courses to be held within one year, and having a full faculty of
professors in anatomy, physiology, chemistry, toxicology, pathology,
hygiene, materia medica, therapeutics, obstetrics, gynæcology,
_principle_ (_sic_) and practice of medicine and surgery, and clinical
instruction in the last two named. But the three-year clause does not
apply to degrees granted prior to July, 1891 (_ib._, s. 8).

A person intending to practise medicine, surgery, or obstetrics must
present his diploma to the said board, with his affidavit that he is
the lawful possessor of the same and has attended the full course of
study required for the degree of “M.D.,” and that he is the person
therein named. Such affidavit may be taken before any person authorized
to administer oaths, and it shall be attested under the hand and
official seal of the official, if he have a seal. False swearing is
perjury (_ib._, s. 9).

If investigation of the diploma and affidavit proves the applicant
entitled to practise, the board issues its certificate, which must be
filed in the office of the county clerk of the county where he resides,
or intends to practise (_ib._, s. 10).

The act gave physicians entitled to practise at the time of its
enactment six months in which to comply with its provisions with
reference to them (_ib._, s. 11).

The secretaries of the board may issue certificates, without a vote of
the board, when the proof upon which certificates are granted may have
been on file in its office for ten days without a vote of the board,
when no protest has been filed, and if, in their opinion, the proof
complies with the act (_ib._, s. 12).

When the holder of a certificate removes to another county, he must
file and record it in the office of the county clerk in the county to
which he removes (_ib._, s. 13).

The board may refuse certificates to persons guilty of unprofessional
or dishonorable conduct, and may revoke for like causes provided they
give the person an opportunity to be heard (_ib._, s. 14).

PENALTY.—No person is entitled to receive any sum of money for
medical, surgical, or obstetrical service unless he shall have complied
with the act (_ib._, s. 15).

Violation of the act is a misdemeanor, punishable with a fine of from
$50 to $300 and costs of prosecution, and a person convicted shall
stand committed till the fine and costs are paid (_ib._, s. 16).

DEFINITION, EXCEPTIONS.—To operate on, profess to heal, prescribe for,
or otherwise treat any physical or mental ailment of another, is to
practise medicine under this act. But it does not prohibit gratuitous
services in cases of emergency, nor apply to commissioned surgeons
in the United States army or navy, nor to nurses in their legal
occupation, nor to the administration of ordinary household remedies
(_ib._, s. 17).

ITINERANT VENDER.—To be an itinerant vender of any drug, nostrum,
ointment, or appliance for the treatment of disease or injury, or for
such an one to publicly profess to cure or to treat disease or injury
or deformity by any drug, nostrum, manipulation, or other expedient,
is a misdemeanor punishable with a fine of from $50 to $100, or
imprisonment in the county jail from thirty days to three months, or
both, for each offence (_ib._, s. 18).

FEES.—To the secretaries of the board of health, for certificate at
time of application, $5.

To the secretaries of the board of health, for taking testimony, same
fees as a notary public is allowed for same service (_ib._, s. 19).

To county clerk, for recording, usual register’s fees for recording
(_ib._, s. 10).


NEVADA.

QUALIFICATION.—No person can lawfully practise medicine or surgery who
has not received a medical education and a diploma from some regularly
chartered medical school having a _bona fide_ existence when the
diploma was granted (Act of 1875, c. 46, s. 1).

A copy of the diploma must be filed for record with the county recorder
of the county in which the person practises, and at the same time the
original, or a certificate from the dean of the medical school of which
he is a graduate, certifying to his graduation, must be exhibited
(_ib._, s. 2).

The person filing a copy of a diploma or a certificate of graduation
must be identified as the person named therein, by the affidavit of two
citizens of the county, or his affidavit taken before a notary public
or commissioner of deeds for this State, which affidavit must be filed
in the office of the county recorder (_ib._, s. 3).

PENALTY.—Practising without complying with this act is a misdemeanor
punishable with a fine of from $50 to $500, or imprisonment in the
county jail from thirty days to six months, or both, for each offence.
Filing a diploma or a certificate of another or a forged affidavit of
identification is a felony (_ib._, s. 4).

EXCEPTIONS.—The act does not apply to a person who in an emergency may
prescribe or give advice in medicine or surgery in a township where
no physician resides, or when no physician or surgeon resides within
convenient distance, nor to those who had practised medicine or surgery
in the State for ten years next preceding the passage of the act, nor
to persons prescribing in their own family (_ib._, s. 6).


NEW JERSEY.

BOARD OF EXAMINERS.—The State board of medical examiners, appointed
by the governor, consists of nine members, persons of recognized
professional ability and honor, five of the old school, three of the
homœopathic, and one of the eclectic, among whom can be no member of
any college or university having a medical department (Act 1890, c.
190, s. 1).

The board must hold meetings for examination at the capital on the
second Thursday of January, April, July, and October of each year and
at such other times as they deem expedient; they shall keep a register
of all applicants for examination, showing the name, age, and last
place of residence of each candidate, the time he has spent in medical
study in or out of a medical school, the names and locations of all
medical schools which have granted the said applicant any degree or
certificate of attendance upon lectures in medicine, and whether the
applicant has been rejected or licensed, and it shall be _prima facie_
evidence of all matters contained therein (_ib._, s. 2).

QUALIFICATION.—All persons commencing the practice of medicine or
surgery in any of its branches must apply to the board for a license.
Applicants are divided into three classes:

1. Persons graduated from a legally chartered medical school not less
than five years before the application.

2. All other persons graduated from legally chartered medical schools.

3. Medical students taking a regular course of medical instruction.

Applicants of the first class are examined in materia medica,
therapeutics, obstetrics, gynæcology, practice of medicine, surgery,
and surgical anatomy; those of the second and third classes are
examined in anatomy, physiology, chemistry, materia medica,
therapeutics, histology, pathology, hygiene, practice of medicine,
surgery, obstetrics, gynæcology, diseases of the eye and ear, medical
jurisprudence, and such other branches as the board may deem advisable;
questions for applicants of the first and second classes are the same
in the branches common to both. The board after January 1st, 1892,
cannot license applicants of the second or third classes without
satisfactory proof that the applicant has studied medicine and surgery
three years, is of good moral character, and over twenty-one years
of age; applicants of the third class, after they shall have studied
medicine and surgery at least two years, can be examined in anatomy,
physiology, chemistry, histology, pathology, materia medica, and
therapeutics; if the examination is satisfactory to all the members of
the board, it may issue a certificate that the applicant has passed a
final examination in these branches, and such certificate, if presented
by the applicant when he shall make application for a license to
practise, shall be accepted by the said board in lieu of examination
in those branches. All examinations shall be both scientific and
practical, but of sufficient severity to test the candidate’s fitness
to practise medicine and surgery (_ib._, s. 3).

All examinations shall be in writing; the questions and answers,
except in materia medica and therapeutics, must be such as can be
answered in common by all schools of practice, and if the applicant
intends to practise homœopathy or eclecticism, the member or members
of the said board of those schools shall examine the said applicant in
materia medica and therapeutics; if the examination is satisfactory,
the board shall issue a license entitling the applicant to practise
medicine. A license shall not be issued unless the applicant passes an
examination satisfactory to all members of the board; the examination
papers kept on file by the secretary of the board are _prima facie_
evidence of all matters therein contained; on refusal of the board to
issue a license for failure on examination, the applicant may appeal
to the governor, who may appoint a medical commission of review of
three members, one from each school of medicine, who shall examine the
examination papers of the applicant and from them determine whether a
license should be issued, and their decision shall be final; if the
said committee by unanimous vote reverse the determination of the
board, the board shall issue a license; the expenses of the appeal are
borne by the applicant (_ib._, s. 4).

The board may, by unanimous vote, refuse or revoke a license for
chronic and permanent inebriety, the practice of criminal abortion,
conviction of a crime involving moral turpitude, or for publicly
advertising special ability to treat or cure disease which, in the
opinion of the said board, it is impossible to cure.

In complaints for violating this section, the accused shall be
furnished with a copy of the complaint and given a hearing before the
said board in person or by attorney (_ib._, s. 5).

A person receiving a license must file it, or a certified copy thereof,
with the clerk of the county in which he resides; and in case of
removal into another county he must procure from the said clerk a
certified copy of the said license, and file it with the clerk in the
county to which he shall remove (_ib._, s. 6).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the
United States army, navy, or marine hospital service, or to regularly
licensed physicians or surgeons in actual consultation from other
States or Territories, or to regularly licensed physicians or surgeons
actually called from other States or Territories to attend cases in
this State, or to any one while actually serving as a member of the
resident medical staff of any legally incorporated hospital or asylum
in this State, or to any person claiming the right to practise in this
State who has been practising therein since before July 4th, 1890,
provided the said right or title was obtained upon a diploma of which
the holder and applicant was lawfully possessed and it was issued by a
legally chartered medical institution in good standing (_ib._, s. 7, as
amended Act 1892, c. 212).

DEFINITION.—Any person is regarded as practising medicine or surgery
who appends “M.D.” or “M.B.” to his name, or prescribes for the use
of any person any drug or medicine or other agency for the treatment,
cure, or relief of any bodily injury, infirmity, or disease (_ib._, s.
8).

PENALTY.—Commencing the practice of medicine or surgery without a
license or contrary to the act is a misdemeanor punishable by a fine of
from $50 to $100, or imprisonment in the county jail from ten to ninety
days, or both (_ib._, s. 9).

FEES.—To the treasurer of the board, for examination, for applicant of
first and second class, $15.

To the treasurer of the board, for examination, for applicant of third
class, $20 (_ib._, s. 4).

To the county clerk, for registering license, 50 cents (_ib._, s. 6).


NEW HAMPSHIRE.

In New Hampshire there is no statute on this subject.


NEW MEXICO.

BOARD OF EXAMINERS.—The board of medical examiners is composed of
seven practising physicians of known ability and integrity, graduates
of some medical school, college, or university duly established under
and by virtue of the laws of the country in which it is situated, four
allopathic members, three homœopathic members, and one eclectic member
(Compiled Laws 1884, s. 2,553).

QUALIFICATION.—Applications for certificates and examinations are made
to the board through their secretary (_ib._, s. 2,555).

The board must examine diplomas as to their genuineness; the
verification consists in an affidavit of the holder and applicant that
he is the lawful possessor of the diploma and the person therein named;
the affidavit may be taken before any person authorized to administer
oaths, and shall be attested under his hand and official seal if he
have a seal. Graduates may present their diplomas and affidavits by
letter or by proxy (_ib._, s. 2,556).

Examinations of persons not graduates or licentiates must be made by
the board, and certificates by a majority of the board authorize the
possessor to practise medicine and surgery (_ib._, s. 2,557).

The certificate must be recorded in the county clerk’s office in every
county in which the holder practises or attempts to practise medicine
or surgery (_ib._, s. 2,558).

When a certificate is filed, the clerk must record it and attach his
certificate thereto, showing the date of filing and recording and the
number of the book and the page of the record (_ib._, s. 2,559).

Examinations of persons not graduates must be made by the board and
may be wholly or partly in writing, in anatomy, physiology, chemistry,
pathology, surgery, obstetrics, and the practice of medicine (exclusive
of materia medica and therapeutics) (_ib._, s. 2,561).

The board may refuse or revoke a certificate to an individual guilty of
unprofessional or dishonorable conduct (_ib._, s. 2,562).

DEFINITION, EXCEPTIONS.—Practising medicine is defined as professing
publicly to be a physician and prescribing for the sick or appending
to a name the letters “M.D.” The act does not prohibit students from
prescribing under the supervision of a preceptor, nor prevent women
from practising midwifery, nor prohibit gratuitous services in cases of
emergency, nor apply to commissioned surgeons or acting surgeons of the
United States army or navy (_ib._, s. 2,563).

PENALTY.—Practising medicine or surgery without complying with the act
is punishable with a fine of from $50 to $500 for each offence; and
filing a diploma or a certificate of another, or a forged affidavit of
identification, is a felony punishable the same as forgery.

EXCEPTION.—The provisions of the act do not apply to those who have
been practising medicine ten years in the Territory (_ib._, s. 2,564,
Act passed 1882).

PROFESSIONAL CONDUCT.—The code of ethics of the United States Medical
Association is the standard, and the rule of decision, concerning
professional conduct (_ib._, s. 2,565).

PENALTY.—Persons unlawfully collecting or receiving fees or
compensation for services as physicians or surgeons in violation of
this act, are liable to the party paying it for double the amount
thereof (_ib._, s. 2,568).

FEES.—To the secretary of the board, from each graduate or licentiate
if the diploma is genuine, $5.

To the secretary of the board, from each graduate or licentiate if the
diploma is fraudulent or not owned by the possessor, $20 (_ib._, s.
2,556).

To clerk of the county, for filing and recording certificate, the usual
fees (_ib._, s. 2,559).

To the secretary of the board, for examination, in advance, $10 (_ib._,
s. 2,561).


NEW YORK.

PROHIBITION.—No person can lawfully practise medicine unless
registered and legally authorized prior to September 1st, 1891, or
unless licensed by the regents of the University of the State of New
York and registered as required by the present law; nor can any person
lawfully practise medicine who has ever been convicted of a felony by
any court, or whose authority to practise is suspended or revoked by
the regents on the recommendation of a State board (Laws of 1893, c.
661, s. 140).

BOARDS OF EXAMINERS.—There are three separate State boards of medical
examiners of seven members each, representing respectively the Medical
Society of the State, the Homœopathic Medical Society of the State, and
the Eclectic Medical Society of the State.

The regents appoint examiners from lists of nominees furnished by
the said societies. Each nominee before his appointment is required
to furnish to the regents proof that he has received the degree of
doctor of medicine from some registered medical school, and has
legally practised medicine in this State for at least five years. If
no nominees are legally before them, the regents may appoint from the
members in good standing of such societies without restriction (_ib._,
s. 141).

At any meeting of the boards of examiners a majority constitute a
quorum, but questions prepared by the boards may be grouped and
edited, or answer papers of candidates may be examined and marked, by
committees duly authorized by the boards and by the regents (_ib._, s.
144).

QUALIFICATION.—The regents are required to admit to examination any
candidate who pays a fee of $25, and submits satisfactory evidence,
verified by oath, if required, that he—

(1) Is more than twenty-one years of age; (2) is of good moral
character; (3) has the general education required in all cases after
August 1st, 1895, preliminary to receiving the degree of bachelor or
doctor of medicine in this State; (4) has studied medicine not less
than three full years, including three satisfactory courses in three
different academic years in a medical school registered as maintaining
at the time a satisfactory standard; (5) has either received the degree
of bachelor or doctor of medicine from some registered medical school
or a diploma or license conferring the full right to practise medicine
in some foreign country.

The degree of bachelor or doctor of medicine shall not be conferred
in the State before the candidate has filed with the institution
conferring it the certificates of the regents that three years before
the date of his degree, or before or during his first year of medical
studies in the State, he had either graduated from a registered college
or satisfactorily completed not less than a three years’ academic
course in a registered academy or high school; or had a preliminary
education considered and accepted by the regents as fully equivalent;
or had passed a regents’ examination in arithmetic, elementary English,
geography, spelling, United States history, English composition, and
physics. Students who had matriculated in a New York medical school
before June 5th, 1890, are exempt from this preliminary education
requirement provided that the degree be conferred before August 1st,
1895.

The regents may in their discretion accept as equivalent for any part
of the third and fourth requirements evidence of five or more years’
reputable practice of medicine, provided such substitution be specified
in the license (_ib._, s. 145).

Each board is required to submit to the regents as required lists of
suitable questions for a thorough examination in anatomy, physiology,
and hygiene, chemistry, surgery, obstetrics, pathology and diagnosis
and therapeutics, including practice and materia medica. From these
lists the regents are required to prepare question papers for all these
subjects, which at any examination are required to be the same for all
candidates, except that in therapeutics, practice, and materia medica
all questions submitted to any candidate shall be chosen from those
prepared by the board selected by that candidate, and shall be in
harmony with the tenets of that school as determined by its State board
of medical examiners (_ib._, s. 146).

Examinations for a license are required to be given in at least four
convenient places in this State at least four times annually in
accordance with the regents’ rules, and exclusively in writing and in
English. Each examination is conducted by a regents’ examiner who shall
not be one of the medical examiners. At the close of each examination
the regents’ examiner in charge is required to deliver the question
and answer papers to the board selected by each candidate, or its duly
authorized committee, and such board, without unnecessary delay, is
required to examine and mark the answers and transmit to the regents an
official report stating the standing of each candidate in each branch,
his general average, and whether the board recommends that a license
be granted. Such report must include the questions and answers and is
filed in the public records of the university. If the candidate fails
on a first examination, he may, after not less than six months’ further
study, have a second examination without fee. If the failure is from
illness or other cause satisfactory to the regents they may waive the
requirement of six months’ study (_ib._, s. 147).

On receiving from a State board an official report that the applicant
has successfully passed the examinations and is recommended for
license, the regents are required to issue to him, if in their judgment
he is duly qualified therefor, a license to practise medicine. The
contents and execution of the license are regulated in detail by the
act.

Applicants examined and licensed by other State examining boards
registered by the regents as maintaining standards not lower than those
provided by this article, and applicants who matriculated in a New
York State medical school before June 5th, 1890, and who shall have
received the degree of “M.D.” from a registered medical school before
August 1st, 1895, may, without further examination, on the payment of
ten dollars to the regents, and on submitting such evidence as they may
require, receive from them an indorsement of their license or diploma
conferring all the rights and privileges of a regents’ license issued
after an examination.

If any person whose registration is not legal because of some error,
misunderstanding, or unintentional omission shall submit satisfactory
proof that he had all the requirements provided by law at the time of
his imperfect registration, and was entitled to be legally registered,
he may, on the unanimous recommendation of a State board of medical
examiners, receive from the regents under seal a certificate of the
facts, which may be registered by any county clerk and shall make valid
the previous imperfect registration.

Before any license is issued, it must be numbered and recorded in a
book in the regents’ office, and its number noted in the license. This
record in all legal proceedings has the same weight as evidence that is
given to a record of conveyances of land (_ib._, s. 148).

Every license to practise medicine is required, before the licensee
begins to practise, to be registered in the county clerk’s office,
where such practice is to be carried on, with his name, residence,
place and date of birth, and the source, number, and date of his
license. Before registering, each licensee is required to file an
affidavit of the above facts, and that he is the person named in
the license, and had, before receiving the same, complied with all
the requisites as to attendance, terms, and amount of study and
examinations required by law and the rules of the university as
preliminary to the conferment thereof; that no money was paid for such
license except the regular fees paid by all applicants therefor; that
no fraud, misrepresentation, or mistake in any material regard was
employed by any one or occurred in order that such license should be
conferred.

Every license, or if lost a copy, legally certified so as to be
admitted as evidence, or a duly attested transcript of the record of
its conferment, shall before registration be exhibited to the county
clerk, who, only in case it was issued or indorsed as a license under
seal by the regents, shall indorse or stamp on it the date and his name
preceded by the words, “Registered as authority to practise medicine
in the clerk’s office,—— County.” The clerk is required thereupon
to give to every physician so registered a transcript of the entries
in the register with a certificate under seal that he has filed the
prescribed affidavit (_ib._, s. 149).

A practising physician having registered a lawful authority to
practise medicine in one county and removing such practice, or a part
thereof, to another county, or regularly engaged in practice or opening
an office in another county, must show or send by registered mail to
the clerk of such other county his certificate of registration. If
such certificate clearly shows that the original registration was of
an authority issued under seal by the regents, or if the certificate
itself is indorsed by the regents as entitled to registration, the
clerk is required thereupon to register the applicant in the latter
county, and to stamp or indorse on such certificate the date, and his
name preceded by the words, “Registered also in—— County,” and return
the certificate to the applicant (_ib._, s. 150).

Every unrevoked certificate and indorsement of registration is
presumptive evidence that the person named is legally registered.
No person can register any authority to practise medicine unless
issued or indorsed as a license by the regents. No such registration
is valid unless the authority registered constituted at the time of
registration a license under the laws of the State then in force. No
diploma or license conferred on a person not actually in attendance at
the lectures, institution, and examinations of the school conferring
the same, or not possessed, at the time of its conferment, of the
requirements then demanded of medical students in this State as
a condition of their being licensed, and no registration not in
accordance with this article, shall be lawful authority to practise,
nor shall the degree of doctor of medicine be conferred _causa honoris_
or _ad eundum_, nor if previously conferred shall it be a qualification
for practice (_ib._, s. 151).

EXCEPTIONS.—The law does not affect commissioned medical officers
serving in the United States army, navy, or marine hospital service
while so commissioned; or any one while actually serving on the
resident medical staff of any legally incorporated hospital; or any
legally registered dentist exclusively engaged in the practice of
dentistry; or any manufacturer of artificial eyes, limbs, or orthopædic
instruments or trusses in fitting such instruments on persons in
need thereof; or any lawfully qualified physician in other States
or countries meeting legally registered physicians in this State in
consultation; or any physician residing on a border of a neighboring
State and duly authorized under the laws thereof to practise medicine
therein whose practice extends into this State, and who does not open
an office or appoint a place to meet patients or receive calls within
this State; or any physician duly registered in one county called to
attend isolated cases in another county, but not residing or habitually
practising therein (_ib._, s. 152).

PENALTY.—A person practising without lawful registration or in
violation of this article forfeits to the county $50, for each
violation and for every day of unlawful practice. To practise under
a false or assumed name or falsely personate another practitioner
of like or different name is a felony. The violation of the other
provisions of the act, or buying, selling, or fraudulently obtaining
a medical diploma, license, record, or registration, or aiding or
abetting such buying, selling, or fraudulently obtaining, or practising
medicine under cover of a diploma or license illegally obtained, or
signed and issued unlawfully or under fraudulent representation or
misstatement of fact in a material regard, or after conviction of a
felony attempting to practise medicine, or appending “M.D.” to the
name or assuming to advertise the title of doctor in such manner as to
convey the impression that one is a legal practitioner of medicine or
any of its branches without having legally received the medical degree,
is a misdemeanor punishable with a fine of not less than $250, or
imprisonment for six months for the first offence, and for subsequent
offences with a fine of not less than $500 or imprisonment for not less
than one year, or both fine and imprisonment (_ib._, s. 159).

DEFINITIONS.—As used in the article, university means the University
of the State of New York. Medical school means any medical school,
college, or department of a university registered by the regents as
maintaining a proper medical standard and as legally incorporated.
Medicine means medicine and surgery; physician means physician and
surgeon (_ib._, definitions).

FEES.—To regents, for examination, $25 (_ib._, s. 145).

To regents, for license without examination under sec. 148, $10 (_ib._,
s. 148).

To county clerk, for registering affidavit and certificate, $1 (_ib._,
s. 149).

To county clerk, for registration in an additional county, 25 cents
(_ib._, s. 150).


NORTH CAROLINA.

QUALIFICATION.—No person can lawfully practise medicine or surgery, or
any of the branches thereof, nor in any case prescribe for the cure of
disease for a fee or reward unless he shall have been first licensed
(Code 1883, s. 3,122, as amended Act of 1885, c. 117, s. 1).

The board of medical examiners of the State consists of regularly
graduated physicians appointed by the medical society of the State
(_ib._, s. 3,123, 3,126).

The board must examine all applicants for a license to practise
medicine or surgery, or any of the branches thereof, on anatomy,
physiology, surgery, pathology, medical hygiene, chemistry, pharmacy,
materia medica, therapeutics, obstetrics, and the practice of medicine,
and grant to a competent applicant a license or diploma authorizing him
to practise medicine and surgery or any of the branches thereof (_ib._,
s. 3,124).

Where he has not been refused a license by the board, two members of
the board may grant a temporary license to any applicant to continue in
force no longer than the next regular meeting of the board (_ib._, s.
3,125, as amended Act of 1889, c. 181, s. 3).

The board of examiners must assemble when and where the medical society
assembles, which society must assemble at least once a year; the board
must remain in session from day to day till all applicants during the
first five days after its meeting have been examined and disposed of
(_ib._, s. 3,127).

PENALTY, EXCEPTIONS.—A person practising without obtaining a license
from the board shall not be entitled to sue for or recover any medical
bill for services; and a person who has begun the practice of medicine
or surgery in the State for a fee or reward since February 23d, 1885,
without first obtaining such a license, shall in addition be guilty
of a misdemeanor and punishable with a fine of from $25 to $100, or
imprisonment at the discretion of the court for each offence; but the
act does not apply to women pursuing the avocation of midwife, nor to
any reputable physician or surgeon residing in a neighboring State,
coming into this State for consultation with a registered physician
resident therein, except a physician residing in a neighboring State
regularly practising in this State, nor does it apply to physicians who
have a diploma from a regular medical college prior to January 1st,
1880 (_ib._, s. 3,132, as amended Act of 1885, c. 117, s. 2; Act of
1885, c. 261, s. 1; Act of 1889, c. 181, s. 1).

The board may rescind a license upon satisfactory proof that a licensee
has been guilty of grossly immoral conduct (_ib._, s. 3,133).

QUALIFICATION.—Every person practising medicine or surgery in the
State was required before January 1st, 1892, to appear personally
before the clerk of the superior court of the county where he resided
or practised, for registration, and all persons beginning to practise
are likewise to appear and register within thirty days after obtaining
a license (Act of 1889, c. 181, s. 3, as amended Act of 1891, c. 90).

Any person applying for registration must produce and exhibit before
the clerk a license from the board of medical examiners, or make oath
that he was practising medicine or surgery in this State prior to March
7th, 1885, and thereupon the clerk shall register the date, with the
name and residence of the applicant, and shall issue a certificate of
registration. The certificate entitles the recipient to practise in
any county in the State, but if he removes his residence to another
county he must exhibit his certificate to the clerk of such county and
be registered. Persons having a temporary license are not entitled to
register but may practise so long as the license is in force (Act of
1889, c. 181, s. 4, as amended Act of 1891, c. 420).

PENALTY, EXCEPTIONS.—To practise without registration and a
certificate is a misdemeanor punishable with a fine of from $25 to
$100 or imprisonment for each offence, but this act does not apply to
women pursuing the avocation of midwife nor to reputable physicians
or surgeons residing in a neighboring State coming into the State for
consultation with a registered physician of this State (Act of 1889, c.
181, s. 5).

LICENSE FEE.—A license of $10 for each county in which he carries
on business is exacted from every (itinerant?) medical practitioner,
one-half for the use of the county and one-half for the use of the
State; but a State license may be obtained from the State treasurer for
$30 good for twelve months, and he is then exempt from the portion of
above tax due the State (Act 1891, c. 323).

FEES.—To the secretary of the board, before issuing a license or
diploma, $10.

To the secretary of the board, for temporary license, $5 (Code, 3,130).

To clerk of the court, for registration and certificate, 25 cents.

To clerk of the county, for registration on removal, no fee (Act 1889,
c. 181, s. 4).


NORTH DAKOTA.

BOARD OF EXAMINERS.—The governor appoints a State board of examiners
of nine members, eight of whom are practising physicians in good
standing; no member of any college or university having a medical
department shall be appointed. Two members shall be homœopathic
physicians and one a lawyer (Act 1890, c. 93, s. 1).

The board must hold meetings for examination at such place or places
as it may designate on the first Tuesday of January, April, July,
and October of each year, and such other meetings as it may appoint
and must keep a record of its proceedings with a register of every
applicant for a license with his or her age, the time spent in the
study of medicine, and the name and location of all institutions
granting to such applicant a degree or a certificate of lectures
in medicine or surgery, and whether the applicant was rejected or
licensed; and said books and register shall be _prima facie_ evidence
of all matters therein recorded (_ib._, s. 2).

QUALIFICATION.—All persons hereafter commencing the practice of
medicine, surgery, and obstetrics in any of its branches shall apply
to the board for a license, and at the time and place designated
by the board, or at its regular meeting, be examined in anatomy,
physiology, chemistry, histology, materia medica, therapeutics,
preventive medicines, practice of medicine, surgery, obstetrics,
diseases of women and children, of the nervous system, of the eye
and ear, medical jurisprudence, and such other branches as the board
shall deem advisable, and produce evidence of having attended three
courses of lectures of at least six months each; the examination must
be both practical and scientific, but of sufficient severity to test
the candidate’s fitness to practise medicine, surgery, and obstetrics.
When desired, the said examination may be conducted in the presence
of the dean of any medical school or the president of any medical
society of the State. After examination the board must grant a license
to practise medicine, surgery, and obstetrics; seven members must
consent. The board may revoke or refuse a license for unprofessional,
dishonorable, or immoral conduct, chronic or persistent inebriety, the
practice of criminal abortion, or for publicly advertising special
ability to treat or cure diseases which, in the opinion of the board,
it is impossible to cure. In complaints for violating the provisions
of this section, the accused shall be furnished with a copy of the
complaint, and given a hearing before the board in person or by
attorney. Appeal lies from refusal or revocation to the appointing
power (_ib._, s. 3).

The person receiving a license must file it, or a certified copy, with
the register of deeds where he resides. On removal into another county
he must procure from said register a certified copy of his license and
file it with the register of deeds in the county to which he shall
remove (_ib._, s. 4).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the
United States army or navy, to physicians or surgeons in actual
consultation from other States or Territories, or to actual medical
students practising medicine under the direct supervision of a
preceptor (_ib._, s. 5).

PENALTY.—Practising without a license or contrary to the act is a
misdemeanor punishable with a fine of from $50 to $200, or imprisonment
in a county jail from ten to sixty days, or both.

DEFINITION.—Any person is regarded as practising who appends the
letters “M.D.” or “M.B.” to his name, or who for a fee prescribes,
directs, or recommends for the use of any person any drug or medicine
or other agency for the treatment, cure, or relief of any wound,
fracture or bodily injury, infirmity, or disease (_ib._, s. 6).

FORMER LAW.—The former law is repealed only so far as it is
inconsistent with the foregoing act (_ib._, s. 7).

The former law prohibited persons from practising medicine in any of
its branches unless graduates of a medical college or unless they were
shown by examination to be qualified and had been actually engaged in
practising for at least ten years (Compiled Laws of Dakota, s. 205).

FEE.—To the treasurer of the board, for examination, $20 (Act 1890, c.
93, s. 3).


OHIO.

QUALIFICATION.—No person who is not a graduate of a reputable school
of medicine in the United States or a foreign country, or who cannot
produce a certificate of qualification from a State or county medical
society and is not a person of good moral character, can lawfully
practise or attempt to practise medicine in any of its departments or
prescribe medicine for reward or compensation; except a person who has
been continuously engaged in the practice of medicine for ten years or
more. The law allowed persons in continuous practice for five years
or more, two years to comply with its provisions. In case a person is
a graduate of a school of medicine in any State or foreign country in
which any condition or restriction is imposed by law upon the practice
of medicine by graduates of medical schools in Ohio, he is subject to
the same restrictions or conditions. A person violating this section
is not entitled to any compensation for services (Smith & Benedict’s
Revised Statutes of 1890, s. 4,403).

PENALTY.—Whoever prescribes or practises or attempts to practise
medicine in any of its departments, or performs or attempts to perform
a surgical operation without having attended two full courses of
instruction and graduated at a school of medicine either in this or a
foreign country, or who cannot produce a certificate of qualification
from a State or county medical society, except a person who has been
continuously engaged in the practice of medicine for ten years or more,
is punishable with a fine of from $50 to $100 and for a subsequent
offence with imprisonment for thirty days. Persons in continuous
practice for five years or more were allowed two years to comply with
this act (_ib._, s. 6,992).


OKLAHOMA.

QUALIFICATION.—No person can lawfully practise medicine in any
department unless he be a graduate of a medical college, or unless upon
examination before a board composed of the superintendent of public
health and two other physicians to be selected by the territorial board
of health, he be found proficient in the practice of medicine and
surgery, and shall be found upon proof to have been actually engaged
in the practice of medicine not less than five years. No person shall
practise medicine unless he be of good moral character, and is not an
habitual drunkard.

A person possessing these qualifications shall, on presentation of his
diploma, or proof thereof by affidavit if it be lost or destroyed,
and the affidavit of two reputable citizens from the county where he
resides that the applicant possesses the qualifications of a physician,
as prescribed herein, to the superintendent of public health, receive
from him a license, which shall be recorded in the office of the
register of deeds in the county where such physician resides.

OFFENCE.—To practise without complying with this law, or to violate
any of its provisions, is a misdemeanor.

DEFINITION.—A person is regarded as practising medicine who professes
publicly to be a physician and to prescribe for the sick, or who
appends to his name M.D.

EXCEPTIONS.—The law does not prohibit students from prescribing under
the supervision of preceptors, nor prohibit gratuitous services in case
of emergency, nor apply to commissioned surgeons in the United States
army and navy.

CANCELLATION OF LICENSE.—The district court has power on complaint of
a member of the territorial board of health, or the county board of
health where he resides, to cancel any license issued to a person to
practise medicine, where such license was fraudulently obtained, or
where the person to whom it was issued has been guilty of violating any
provision of this act.

FEE.—To superintendent of board of health, for license, $2 (Comp.
Stats., 1893, s. 352).


OREGON.

QUALIFICATION.—Every person practising medicine and surgery in any
of their departments must possess the qualifications required by the
act. If a graduate of medicine he must present his diploma to the board
of examiners for verification as to its genuineness. If found genuine
and the person named therein be the person claiming and presenting
the same, the board issues its certificate, which is conclusive. If
not a graduate, he must submit to an examination as the board shall
require, and if the examination be satisfactory the board issues its
certificate, and the lawful holder is entitled to all the rights and
privileges mentioned in the act (Act February 28th, 1889, s. 1).

The governor appoints three persons from among the most competent
physicians of the State, residents of the State for seven years and of
at least five years’ practical experience in their profession, to be
the board of examiners (_ib._, s. 2).

The board must issue certificates to all who furnish satisfactory
proof of having received a diploma or license from a legally chartered
medical institution in good standing of whatever school of medicine,
and they are not permitted to make discrimination against holders of a
general license or diploma under any school or system of medicine in
good standing (_ib._, s. 3, as amended February 21st, 1891).

The verification of a diploma consists in an affidavit of the holder
and applicant that he is the person therein named, taken before any
person authorized to administer oaths, attested under the hand and
official seal of the official, if he have a seal; graduates may present
their diplomas and affidavits by letter or proxy. The act allows
persons taking advantage of section 13 ninety days after its passage in
which to procure a certificate (_ib._, s. 4, as amended February 21st,
1891).

All examinations of persons not graduates or licentiates must be made
directly by the board, and certificates authorize the person named to
practise medicine and surgery (_ib._, s. 5).

The holder of a certificate must have it recorded in the office of
the county clerk of the county in which he resides, and the record
must be indorsed thereon. On removal to another county to practise he
must procure an indorsement to that effect on the certificate from the
clerk, and have the certificate recorded in the office of the clerk of
the county to which he removes (_ib._, s. 6).

The examinations may be wholly or partly in writing and must be of an
elementary and practical character, but sufficiently strict to test the
qualifications of the candidate as a practitioner (_ib._, s. 8).

The board may refuse a certificate to an individual guilty of
unprofessional or dishonorable conduct, and may revoke for like causes,
after giving the accused an opportunity to be heard in his defence
before the board (_ib._, s. 9).

DEFINITION, EXCEPTIONS.—Any person is regarded as practising medicine
who professes publicly to be a physician and to prescribe for the
sick, or appends to his name the letters “M.D.;” but the act does
not prohibit students from prescribing under the supervision of a
preceptor, nor gratuitous services in cases of emergency, nor does it
apply to commissioned surgeons of the United States army, navy, and
marine hospital service (_ib._, s. 10).

ITINERANT VENDER.—Any itinerant vender of any drug, nostrum, medicine,
ointment, or appliance of any kind intended for the treatment of
disease or injury, who shall publicly profess to cure or treat
diseases, injuries, deformities, or ailments by any drug, nostrum,
medicine, or other appliance, shall pay a license to the Secretary of
the State of $100 per month.

Violation of this section is a misdemeanor punishable by a fine of not
more than $500 or imprisonment in a county jail for not more than six
months, or both. Such licenses to any firm or company do not permit the
transaction of business in different places at the same time (_ib._, s.
11, as amended February 21st, 1891).

PENALTY.—Practising medicine or surgery without complying with the
act is a misdemeanor punishable with a fine of from $50 to $500 or
imprisonment in a county jail from thirty days to three hundred and
sixty-five days, or both, for each offence. Filing or attempting to
file as his own the certificate of another, or a forged affidavit or
identification, is a felony punishable the same as forgery in the
second degree (_ib._, s. 12).

FORMER PRACTITIONERS.—Persons practising in the State at the time of
the passage of the act were allowed sixty days afterward to register
(_ib._, s. 13).

FEES.—To the secretary of the board, for examining a genuine diploma,
$1.

To the secretary of the board, for examining a fraudulent diploma, or a
diploma not owned by the possessor, $20 (_ib._, s. 4).

To the county clerk, for recording certificate, usual fee (_ib._, s.
6).

To board of examiners, for examination, $10 (_ib._, s. 8).

To the Secretary of the State, from itinerant vender, for license, $100
per month (_ib._, s. 11, as amended February 21st, 1891).


PENNSYLVANIA.

[PRESENT LAW.—The following is the law at present in effect; for the
new law which goes into effect hereafter, see below.]

QUALIFICATION.—The standard of a practitioner of medicine, surgery, or
obstetrics consists of a good moral character, a thorough elementary
education, a comprehensive knowledge of human anatomy, human
physiology, pathology, chemistry, materia medica, obstetrics, and
practice of medicine and surgery and public hygiene (Act March 24th,
1877, s. 1).

It is unlawful for any person to announce himself as a practitioner
of medicine, surgery, or obstetrics, or to practise as such, who has
not received in a regular manner a diploma from a chartered medical
school, duly authorized to confer upon its alumni the degree of doctor
of medicine. The act does not apply to a resident practitioner who has
been in continuous practice in the commonwealth for not less than five
years prior to its passage (_ib._, s. 2).

Before any person can lawfully engage in the practice of medicine,
surgery, or obstetrics, or who has not a diploma as provided in sec. 2,
he must make an affidavit under oath, or affirm before the prothonotary
of the county in which he intends to practise, setting forth the time
of continuous practice and the place or places where such practice was
pursued in the commonwealth, and it shall be entered of record (_ib._,
s. 3).

TRANSIENT PRACTITIONER.—Any person attempting to practise medicine
or surgery for a valuable consideration by opening a transient office
within the commonwealth, or by handbill or other form of written or
printed advertisement, assigning such transient office or other place
to persons seeking medical or surgical advice, or prescribing or
itinerating from place to place or from house to house and proposing to
cure any person sick or afflicted, by the use of any medicine, means,
or agency whatsoever, for a valuable consideration, shall before being
allowed to practise in this manner appear before the clerk of the
court of quarter sessions of the county where he desires to practise
and furnish satisfactory evidence to such clerk that this act has been
complied with, and shall take out a license for one year and pay $50
therefor (_ib._, s. 4).

PENALTY.—To violate this act is a misdemeanor punishable with a fine
of from $200 to $400 for each offence (_ib._, s. 5).

QUALIFICATION.—Every person who shall practise medicine or surgery,
or any of their branches, for gain, or shall receive or accept for his
services any fee or reward directly or indirectly, shall be a graduate
of a legally chartered medical college or university having authority
to confer the degree of doctor of medicine (except as provided in
sec. 5), and shall present to the prothonotary of the county in which
he resides or sojourns his medical diploma as well as a true copy
of the same, including any indorsements thereon, and make affidavit
before him that the diploma and indorsements are genuine; thereupon
the prothonotary shall enter in the register the name in full of the
practitioner, his place of nativity, place of residence, the name of
the college or university that has conferred the degree of doctor of
medicine, the year when it was conferred, and in like manner any other
degree or degrees that the practitioner may desire to place on record;
to all of which the practitioner shall make affidavit before the
prothonotary and the prothonotary shall place the copy of the diploma
and indorsements on file (Act June 8th, 1881, s. 2).

Any person whose medical diploma has been destroyed or lost shall
present to the prothonotary of the county in which he resides or
sojourns a duly certified copy of his diploma, but if the same is
not obtainable a statement of this fact, with the names of the
professors whose lectures he attended and the branches of study upon
which each professor lectured, to all of which the practitioner shall
make affidavit before the prothonotary; after which the practitioner
shall be allowed to register and the prothonotary shall place such
certificate or statement on file (_ib._, s. 3).

Any person desiring to commence the practice of medicine or surgery,
having a medical diploma issued by any college, university, society,
or association in another State or foreign country, shall lay the same
before the faculty of one of the medical colleges or universities of
this commonwealth for inspection, and the faculty being satisfied
as to the qualifications of the applicant and the genuineness of the
diploma shall direct the dean of the faculty to indorse the same, after
which such person shall be allowed to register as required by sec. 2
(_ib._, s. 4).

The act extends the privilege of continuing to practise to those who
have been in the continuous practice of medicine or surgery in the
commonwealth since 1871, but such a person must make affidavit to a
written statement of the facts before the prothonotary of the county
in which he resides; and the prothonotary shall enter in the register
the name in full of the practitioner, his place of nativity, place of
residence, the time of continuous practice in the commonwealth, and the
place or places where such practice was pursued, to all of which the
practitioner shall make affidavit, and the prothonotary shall place the
certificate or statement on file in his office (_ib._, s. 5).

PENALTY.—Presenting to the faculty of an institution for indorsement
or to the prothonotary a diploma which has been obtained by fraud,
or in whole or in part a forgery, or making an affidavit to a false
statement, or practising without conforming with the act, or otherwise
violating or neglecting to comply with the act, is a misdemeanor
punishable with a fine of $100 or imprisonment in the county jail for
not more than one year, or both, for each offence (_ib._, s. 7).

EXCEPTION.—The act does not prevent any physician or surgeon, legally
qualified to practise medicine or surgery in the State where he
resides, from practising in the commonwealth, but a person opening an
office or appointing a place to meet patients or receive calls is a
sojourner and must conform to its requirements (_ib._, s. 8).

FEES.—To the prothonotary, for affidavit of continuous practice, $2
(Act March 24th, 1877, s. 3).

To county treasurer, for transient license, $50.

To clerk of the court of quarter sessions, for issuing transient
license, $5 (_ib._, s. 4).

To the prothonotary, for registration, $1 (Act June 8th, 1881, s. 6).

[NEW LAW.—The following law has been enacted whose practical
application does not begin until March 1st, 1894:]

MEDICAL COUNCIL.—The law provides for a medical council of the State
(Act of May 18th, 1893, s. 1).

The council is to supervise the examinations conducted by the State
boards of medical examiners for licenses to practise medicine and
surgery, and issue licenses to applicants who shall have presented
satisfactory and properly certified copies of licenses from the State
boards of medical examiners or State boards of health of other States,
or who shall have successfully passed the examination of one of the
State boards established by this act (_ib._, s. 5).

MEDICAL BOARDS.—From and after March 1st, 1894, there are to be three
separate boards of medical examiners, one representing the medical
society of the State, one representing the homœopathic medical society
of the State, and one representing the eclectic medical society of
the State. Each board is to consist of seven members appointed by
the governor from the full lists of the members of the said medical
societies, and is to be composed exclusively of members of the same
medical society. Each appointee must be a registered physician in good
standing, and shall have practised medicine or surgery under the laws
of the State for not less than ten years prior to his appointment.

The governor is to fill vacancies and may remove a member for continual
neglect of duties or on the recommendation of the medical society with
which he may be in affiliation, for unprofessional or dishonorable
conduct (_ib._, s. 6).

EXAMINATIONS.—For the purpose of examining applicants each board is
to hold two or more stated or special meetings in each year after due
public notice. A majority constitutes a quorum, but the examination may
be conducted by a committee of one or more members authorized by the
board (_ib._, s. 9).

The boards not less than one week prior to each examination must
submit to the council questions for thorough examination in anatomy,
physiology, hygiene, chemistry, surgery, obstetrics, pathology,
diagnosis, therapeutics, practice of medicine, and materia medica; and
the council must select therefrom the questions for each examination,
and such questions for each examination shall be the same for all
candidates, except that in the departments of therapeutics, practice of
medicine, and materia medica the questions shall be in harmony with the
teachings of the school selected by the candidate (_ib._, s. 10).

The examinations are to be in writing under rules prescribed by the
council. After an examination the board must act on it without
unnecessary delay and transmit to the council an official report of
its action stating the examination average of each candidate in each
branch, the general average, and the result, and whether successful
or unsuccessful. The report must embrace all the examination papers,
questions, and answers, which shall be kept for reference and
inspection for not less than five years (_ib._, s. 11).

QUALIFICATION.—The council must forthwith issue to each applicant
returned as having successfully passed said examination, and adjudged
by the council to be duly qualified, a license to practise medicine and
surgery. The council must require the same standard of qualifications
from all candidates except in therapeutics, practice of medicine, and
materia medica, in which the standard shall be determined by the boards
respectively. Before the license is issued, it must be recorded in a
book in the office of the council, and the number of the book and page
containing the record noted on the face of the license; the records
shall have the same weight as evidence as that given to conveyance of
land (_ib._, s. 12).

On and after July 1st, 1894, any person not theretofore authorized to
practise medicine and surgery in the State may deliver to the secretary
of the council a written application for a license with satisfactory
proof that the applicant is more than twenty-one years of age, is of
good moral character, has obtained a competent common-school education,
and has received a diploma conferring the degree of medicine from
some legally incorporated medical college of the United States, or
a diploma or license conferring the full right to practise all the
branches of medicine and surgery in some foreign country. Applicants
who have received their degree in medicine after July 1st, 1894, must
have pursued the study of medicine for at least three years, including
three regular courses of lectures in different years in some legally
incorporated medical college or colleges prior to the granting of said
diploma or foreign license. Such proof shall be made, if required,
upon affidavit, and if the council is satisfied with the same it shall
issue to the applicant an order for examination before such one of the
boards of examiners as the applicant may select. In case of failure at
the examination the candidate, after the expiration of six months and
within two years, shall have the privilege of a second examination by
the same board without additional fee. Applicants examined and licensed
by State boards of medical examiners or State boards of health of other
States, on filing in the office of the medical council a copy of said
license certified by the affidavit of the president and secretary of
such board, showing also that the standard of acquirements adopted by
said board is substantially the same as is provided by secs. 11, 12,
and 13 of this act, shall without further examination receive a license
conferring on the holder all the rights and privileges provided by
secs. 14 and 15 (_ib._, s. 13).

From and after March 1st, 1894, no person shall enter upon the practice
of medicine or surgery unless he has complied with this act and shall
have exhibited to the prothonotary of the court of common pleas of
the county in which he desires to practise a license duly granted,
which shall entitle him to be duly registered in the office of such
prothonotary.

PENALTY.—Violating the provisions of this act shall be a misdemeanor
punishable with a fine of not more than $500 for each offence (_ib._,
s. 14).

EXCEPTIONS.—The act does not interfere with or punish commissioned
medical officers serving in the army or navy of the United States,
or its marine hospital service, while so commissioned, or medical
examiners of relief departments of railroad companies, while so
employed, or any one while actually serving as a member of the resident
medical staff of any legally incorporated hospital, or any legally
qualified and registered dentist exclusively engaged in the practice
of dentistry, nor interfere with or prevent the dispensing and sale
of medicine or medical appliances by apothecaries [or] pharmacists,
nor interfere with the manufacture of artificial eyes, limbs, or
orthopædical instruments or trusses of any kind _for_ (_sic_) fitting
such instruments on persons in need thereof, or any lawfully qualified
physicians and surgeons residing in other States or countries meeting
registered physicians of this State in consultation, or any physician
or surgeon residing on the border of a neighboring State and duly
authorized under the laws thereof to practise medicine and surgery
therein, whose practice extends into the limits of this State, provided
such practitioner shall not open an office or appoint a place to
meet patients or receive calls within the limits of Pennsylvania, or
physicians duly registered in one county of this State called to
attend cases in another, but not residing or opening an office therein.

The act does not prohibit the practice of medicine and surgery by any
practitioner who shall have been duly registered before March 1st,
1894, according to the Act of June 8th, 1881, and one such registration
shall be sufficient warrant to practise medicine and surgery in any
county (_ib._, s. 15).

FORMER LAWS.—All acts or parts of acts inconsistent with this are
repealed (_ib._, s. 17).

FEES.—To the secretary of the council, upon application for a license,
$25.

To the secretary of the county, upon application for a license by
licensees in other States, $15 (_ib._, s. 13).

To the prothonotary, upon exhibition of a license, for registry, $1
(_ib._, s. 14).


RHODE ISLAND.

REGISTRATION.—Every physician must cause his name and residence to
be recorded in the town clerk’s office of the town where he resides
(Public Statutes, 1882, c. 85, s. 12).

PENALTY.—Wilful neglect or refusal to perform this duty is punishable
with a fine not exceeding $20 (_ib._, s. 11).


SOUTH CAROLINA.

QUALIFICATION.—All physicians engaging in the practice of medicine
or surgery, before doing so, must submit their diplomas to a board
consisting of three reputable physicians in each county. The board
is appointed by the governor on the recommendation of the medical
societies of the counties, and where no medical society exists,
upon the recommendation of the senator and members of the House of
Representatives for such counties (Act of 1890, c. 454, s. 1).

The said board must examine said diploma, when submitted, and if the
holder is a _bona fide_ holder, and if the college issuing said diploma
is a reputable medical college, and if he also submits a certificate of
good moral character, the board must certify to the fact, and upon such
certificate the diploma shall be registered by the clerk of the court
of the county in which the applicant resides (_ib._, s. 2).

EXCEPTION.—The act does not apply to physicians and surgeons already
registered under former laws (_ib._, s. 4).


SOUTH DAKOTA.

PROHIBITION.—It is unlawful for any person to practise medicine,
surgery, or obstetrics in any of their departments without having
received a license to practise medicine from the board of health, and
having it recorded in the office of the register of deeds in the county
where such person resides (Act February 16th, 1893, s. 1).

EXCEPTIONS.—The act does not affect those in the lawful practice of
medicine, surgery, or obstetrics in this State at the time of its
passage (_ib._, s. 2).

Nor does it prohibit students from prescribing under the supervision
of a preceptor, nor prohibit gratuitous services in case of emergency,
nor apply to commissioned surgeons in the United States army and navy
(_ib._, s. 3).

PENALTY.—Violation of the act or practising without the license is a
misdemeanor punishable with a fine of from $25 to $100 or imprisonment
in the county jail not more than thirty days or both (_ib._, s. 4).

QUALIFICATION.—The State board of health is constituted a board of
public examiners _ex-officio_ to examine and license physicians to
practise medicine. Any person who is a graduate of a lawful medical
college, who has attended three full courses of medical lectures of
six months each, no two full courses within the same year, and who is
of good moral character, and is not an habitual drunkard, shall, upon
proof of such facts to the superintendent of the State board of health,
as the board shall require, receive from said superintendent a license;
which shall be recorded as above. The requirement of three courses of
lectures does not apply to those who had graduated prior to the passage
of the act (_ib._, s. 5).

CANCELLATION OF LICENSE.—The State board of health, upon complaint
made to it on oath by one responsible person, has power to cancel any
license that may have been fraudulently obtained or when the person to
whom such license was issued is an habitual drunkard, or is guilty of
immoral practices or gross unprofessional conduct. Such license shall
not be cancelled except after a hearing before such board of health,
at which a majority of such board shall be present, and of which the
person holding the license to be cancelled shall have had at least
ten days’ notice, and only upon due proof of the facts stated in the
complaint. An appeal may be taken to the circuit court of the county
in which the person whose license is cancelled lives by any person
aggrieved, in the same manner as now provided by law in case of appeal
from the decisions of the county commissioners (_ib._, s. 6).

FEE.—To the superintendent of the State board of health, for a
license, $5 (_ib._, s. 5).


TENNESSEE.

QUALIFICATION.—No person can lawfully practise medicine in any of its
departments, except dentistry, unless he possesses the qualifications
required by the act. If a graduate in medicine, he must present his
diploma to the State board of medical examiners for verification as
to its genuineness. If found genuine and from a legally chartered
allopathic, homœopathic, or eclectic medical college in good standing
with the school of medicine in which said college is classed, of which
the State board of medical examiners shall be the judge, and the person
named therein be the person claiming and presenting it, the board must
issue a certificate to that effect, conclusive as to the rights of the
lawful holder to practise medicine (Act of 1889, c. 178, s. 1).

Persons in actual practice at the time of the passage of the act were
allowed till July 1st, 1891, to comply with the provisions of the act
respecting them (_ib._, s. 2, as amended Act 1891, c. 109, s. 1).

A person wishing to enter upon the practice of medicine must present
to the board of medical examiners a diploma from some medical college
in good standing as provided by sec. 1, or shall present himself to
the said board for examination upon anatomy, physiology, chemistry,
pathology, surgery, obstetrics, and therapeutics. If the diploma be
found genuine, or if the applicant for examination be found worthy and
competent, the board shall issue a certificate which shall entitle
the lawful holder to all the privileges of this act (_ib._, s. 3, as
amended Act 1891, c. 109, s. 2).

The governor appoints six graduate physicians as a State board of
medical examiners; the three schools allopathic, homœopathic, and
eclectic must be represented on the board; five constitute a quorum
and a majority of those present are necessary to reject an applicant,
but such rejection shall not bar a re-examination after the lapse of
three months; provided the members representing each school shall have
the right to examine all applicants of that school, and the board
shall issue the certificate to applicants who are recommended by the
member or members of the board who belong to said school after such
examination (_ib._, s. 4).

To prevent delay and inconvenience two members of the board may grant
a temporary license to any applicant if the applicant has not been
refused a license by the board within six months, which shall be in
force till the next regular meeting of the board (_ib._, s. 5).

The members of the board shall not be members of the State board of
health, nor any medical faculty (_ib._, s. 6).

The regular meeting of the board shall be once in each year at such
time and place as the board may decide, but the president of the board
may call a special meeting when demanded by public necessity (_ib._, s.
7).

Every person holding a certificate must have it recorded in the office
of the county court clerk where he resides, and the date of record must
be indorsed thereon. Until such record is made the holder shall not
exercise any of the rights and privileges conferred. A person removing
to another county to practise shall record his certificate in like
manner in the county to which he removes. Practitioners may go from
one county to another on professional business, without being required
to register, if they have done so in the county in which they reside
(_ib._, s. 9).

ITINERANT PHYSICIAN OR VENDER.—It is unlawful for an itinerant
physician or vender of any drug, nostrum, ointment, or appliance of any
kind intended for the treatment of disease or injury to sell or apply
the same, or by writing, printing, or other method to profess to cure
or treat disease or deformity by any drug, nostrum, manipulation, or
other expedient.

A violation of this section is punishable with a fine of $100 to $400,
but this section does not apply to merchants and druggists, and this
act does not apply to veterinary surgeons and stock doctors (_ib._, s.
13, as amended Act 1891, c. 109, s. 3).

PENALTY, EXCEPTION.—To practise medicine or surgery without a
certificate is a misdemeanor punishable with a fine of from $10 to $25.

To file or attempt to file as his own the diploma or certificate of
another or a forged affidavit of identification is a felony punishable
same as forgery. The act does not apply to women who pursue the
avocation of midwife (_ib._, s. 14, as amended Act 1891, c. 109, s. 4).

FEES.—To the county court clerk, for recording certificate, the usual
fee (_ib._, s. 9).

To the board of examiners, for issuing a certificate, $1.

To the board of examiners, for examination of non-graduate, $10.

If applicant fails to pass a satisfactory examination, and no
certificate or license is issued to him, $5 only is retained.

For a certificate of temporary license, $1, which is to be credited to
the applicant when he applies for a permanent license (_ib._, s. 12, as
amended Act 1891, c. 109, s. 2).


TEXAS.

CONSTITUTIONAL PROVISION.—The legislature may pass laws prescribing
the qualifications of practitioners of medicine, but no preference
shall ever be given by law to any schools of medicine (Const. 1876,
art. xiv., s. 31 in part).

BOARDS OF EXAMINERS.—A board of medical examiners for each judicial
district is appointed by the judge of the district court (R. S., art.
3,625).

Each board is composed of not less than three practising physicians
of known ability, graduates of some medical college recognized by the
American Medical Association, residents of the district from which they
are appointed (_ib._, art. 3,626).

The boards are required to meet regularly semi-annually at some
central point in their districts to conduct examinations and grant
certificates, and after at least one month’s public notice of the time
and place of meeting by publication in at least one newspaper published
in the district (_ib._, art. 3,629).

QUALIFICATION.—The board is required to examine thoroughly all
applicants for a certificate of qualification to practise medicine in
any of its branches or departments, whether furnished with medical
diplomas or not, upon anatomy, physiology, pathological anatomy and
pathology, surgery, obstetrics, and chemistry; but no preference shall
be given to any school of medicine (_ib._, art. 3,632).

When the board is satisfied as to the qualifications of an applicant,
they are required to grant a certificate, which entitles him to
practise medicine in any county when it has been recorded (_ib._, art.
3,633).

Any two members of the board may grant a certificate, and any member
may grant a temporary certificate upon examination, which shall be in
force until the next regular meeting of the board (_ib._, art. 3,634).

The certificate must, before the person to whom it was granted is
entitled to practise, be recorded in the office of the clerk of the
district court of the county in which such practitioner resides or
sojourns, and when recorded the clerk shall certify thereon under
his official seal the fact and date of record, and shall return the
certificate to its owner (_ib._, art. 3,635).

EXCEPTIONS.—This title does not apply to those who have already
qualified under the act of May 16th, 1873, nor to those regularly
engaged in the general practice of medicine in the State in any branch
or department for five consecutive years prior to January 1st, 1875,
nor to females who follow the practice of midwifery strictly as such
(_ib._, art. 3,637).

PENALTY.—No person except those named in art. 3,637 can lawfully
practise medicine in any of its branches or departments without having
first obtained and recorded a certificate of qualification as above
provided. A person so offending shall be punished as provided in the
Penal Code (_ib._, art. 3,638).

If any person shall practise for pay or as a regular practitioner
medicine in any of its branches or departments, or offer or attempt
to practise medicine without first having obtained a certificate of
professional qualification from some authorized board of medical
examiners, or without having a diploma from some actual medical college
chartered by the legislature of the State, or its authority, in which
the same is situated, he shall be punished by a fine of not less than
$50, nor more than $500 (Penal Code, art. 396).

Each patient visited or prescribed for, or each day’s offer to practise
constitutes a separate offence (_ib._, art. 397).

If any person shall engage in the practice of medicine in any of its
branches or departments for pay or as a registered practitioner,
without having first filed for record, with the clerk of the district
court of the county in which he resides or sojourns, a certificate
from some authorized board of medical examiners or a diploma from some
actual medical college, he shall be punished as prescribed in art. 396
(_ib._, art. 398).

FEES.—To the clerk of the district court, for recording certificate,
$1 (R. S., art. 3,635).

To the board of examiners, for examination, $15, whether certificate is
granted or not (R. S., art. 3,636).


UTAH.

BOARD OF EXAMINERS.—The governor appoints by and with the advice and
consent of the council a board of seven medical examiners from the
various recognized schools of medicine; appointees are required to be
graduates of a legally chartered medical college in good standing (Act
1892, c. 72, s. 1).

QUALIFICATION.—The board has power to issue certificates to all who
furnish satisfactory proof of having received degrees or licenses
from a chartered medical college in good and legal standing, and pass
examinations before said board (_ib._, s. 2).

Graduates of respectable medical colleges at the time of the passage of
the act engaged in actual practice in the Territory shall be licensed
on presenting their degree to the board, and producing satisfactory
evidence of identity (_ib._, s. 4).

Every person holding a certificate from said board must have it
recorded in the office of the recorder of the county in which he
resides within three months from its date, and the date of record must
be indorsed thereon. Until the certificate is recorded, the holder
shall not exercise any of the privileges conferred. A person removing
to another county to practise must record his certificate in like
manner in the county to which he removes (_ib._, s. 5).

Examinations shall be wholly or partly in writing (_ib._, s. 7).

The board may refuse to issue certificates to individuals guilty of
unprofessional or dishonorable conduct, the nature of which shall be
stated in writing, and it may revoke certificates for like causes to be
stated in writing (_ib._, s. 8).

DEFINITION.—Any person is regarded as practising medicine who treats,
operates upon, or prescribes for any physical ailment of another for a
fee, or who holds himself out by means of signs, cards, advertisements,
or otherwise as a physician or surgeon.

EXCEPTIONS.—The act does not prohibit service in case of emergency
or the administration of family remedies, and does not apply to
commissioned surgeons of the United States army in discharge of their
official duties, or to visiting physicians in actual consultation
(_ib._, s. 9).

OFFENCE.—Practising medicine or surgery without a certificate or
contrary to this act is a misdemeanor (_ib._, s. 10).

Persons not graduates who had practised continuously for ten years
in the Territory prior to the taking effect of the act were allowed
six months in which to comply with its provisions concerning them.
Practising without complying with these provisions, and practising
after rejection of an application or the revocation of certificate, is
a violation of the law (_ib._, s. 11).

OBSTETRICIANS.—Persons practising obstetrics were required within
three months after the passage of the act to apply to the board for a
certificate, and after passing a proper examination were entitled to
one.

Practising obstetrics without first obtaining a license or contrary
to this act is a misdemeanor; provided all persons who furnish to
said board satisfactory evidence by affidavit or otherwise of having
practised obstetrics previous to the passage of the act, shall receive
a license without an examination. This section does not apply to
physicians holding certificates nor prohibit services in cases of
emergency, nor apply to persons practising obstetrics in communities
where there are no licensed practitioners (_ib._, s. 12).

BOARD MEETINGS.—The board is required to meet at the territorial
capital on the first Monday of January, March, June, and September of
each year at 10 A.M., and such other times as the president of the
board shall deem necessary (_ib._, s. 13).

COLLEGES.—“Respectable medical colleges” include colleges in legal
standing of any recognized school of medicine (_ib._, s. 15).

FEES.—To the treasurer of the board of examiners, for examination and
certificate, $25 (_ib._, s. 3).

To the treasurer of the board of examiners, for license to a graduate,
$5 (_ib._, s. 4).

The secretary of the board is required to enter without fee, on the
register to be kept by him, the names of all persons to whom licenses
are issued as physicians and surgeons (_ib._, s. 4).

To the county recorder, for recording, his usual fees (_ib._, s. 5).

To the treasurer of the board of examiners, upon examination for
license to practise obstetrics, $10.

To the treasurer of the board of examiners, upon license to practise
obstetrics without examination, $1 (_ib._, s. 12).


VERMONT.

QUALIFICATION.—The medical societies organized under a charter from
the General Assembly at each annual session elect a board of censors of
three members, who may examine and license practitioners of medicine,
surgery, and midwifery (Revised Laws, 1880, s. 3,908).

A practitioner of medicine, surgery, or midwifery who by sign or
advertisement offers his services to the public as a practitioner of
medicine, surgery, or midwifery, or who by such sign or advertisement
assumes the title of doctor, shall obtain a certificate from one of
such medical societies, either from a county, district, or State
society (_ib._, s. 3,909).

A person not a resident of the State who has not received a diploma
from a chartered medical college must obtain a certificate from a board
of censors before he shall be permitted to practise the medical art in
the State (_ib._, s. 3,910).

Each board of censors must issue certificates without fee to physicians
and surgeons who furnish evidence by diploma from a medical college
or university, or by a certificate of examination by an authorized
board, which satisfies said censors that the person presenting such
credentials has been, after due examination, deemed qualified to
practise the branch mentioned in such diploma or certificate (_ib._, s.
3,911).

The censors in their discretion shall notify the practitioner of
medicine, surgery, or midwifery of this chapter, and require such
persons to comply therewith within thirty days after notification or
such further time as is allowed by the censors not exceeding ninety
days (_ib._, s. 3,912).

The certificate must set forth the branches of the medical art in which
the person is qualified to practise (_ib._, s. 3,913).

The certificate must be recorded in the clerk’s office of the county in
which the holder resides, or, if not a resident of the State, in the
county in which he obtained his certificate (_ib._, s. 3,914).

A certificate issued by a board of censors is valid throughout the
State after being duly recorded. The censors may revoke or annul
a certificate if in their judgment the holder has obtained it
fraudulently or has forfeited his right to public confidence by the
conviction of crime (_ib._, s. 3,915).

PENALTY.—To practise medicine, surgery, or midwifery in the State, or
sign a certificate of death for burial or removal unless authorized by
a certificate issued and recorded, is punishable with a fine of from
$50 to $200 for the first offence, and for subsequent offences with a
fine of from $200 to $500, recoverable by an action of debt for the use
of any person who sues or by indictment (_ib._, s. 3,916).

No person practising either of the branches of medicine, surgery, or
midwifery is permitted to enforce in the courts the collection of a
fee or compensation for services rendered or medicine or material
furnished in the practice of any of the branches for which he has not a
certificate (_ib._, s. 3,917).

EXCEPTIONS.—The law does not apply to the practice of dentistry, nor
to the practice of midwifery by women in the town or locality in which
they reside, nor to practitioners of medicine who resided and practised
medicine in the State for five years previous to November 28th, 1876
(_ib._, s. 3,918).


VIRGINIA.

BOARD OF EXAMINERS.—There is a State board of medical examiners
consisting of three members from each congressional district and two
from the State at large, and five homœopathic physicians from the State
at large (Code 1887, s. 1,744).

The board is composed of men learned in medicine and surgery appointed
by the governor from a list of names recommended by the Medical Society
of Virginia, together with five homœopathic physicians nominated
to him by the Hahnemann Medical Society of the Old Dominion. The
recommendations are required to be by votes of a majority present at
some meeting of such society; but if the governor considers any person
so recommended unsuitable he may decline to appoint him, in which case
such society shall within ninety days after notification make another
recommendation, and if the society fail to make a recommendation the
governor is required to appoint such board in whole or in part without
regard to such recommendation. If any examiner cease to reside in the
district for which he was appointed his office is deemed vacant (_ib._,
s. 1,745).

The regular meetings of the board are required to be held at least once
a year, and at such times and places as the board may prescribe, and
special meetings may be held on the call of the president and any five
members (_ib._, s. 1,746).

QUALIFICATION.—The board at any of its meetings must examine all
persons making application to them who desire to practise medicine
or surgery; when an applicant shall have passed an examination
satisfactory as to proficiency before the board in session the
president must grant a certificate to that effect. If any applicant
fail to pass a satisfactory examination before the board he shall not
be permitted to stand a further examination within the next three
months, nor shall he be required again to pay the fees prescribed, but
no applicant shall be rejected on his examination on account of his
adherence to any particular school of medicine or system of practice,
nor on account of his views as to the method of treatment and the cure
of disease.

When, in the opinion of the president of the board, the applicant has
been prevented by good cause from appearing before the board, he shall
appoint a committee of three members who shall examine the applicant
and may grant a certificate having the same effect as though granted
by a full board, until the applicant have an opportunity to appear
before the board, when, if he fail to appear for examination, the
president shall have the authority to revoke said certificate; or in
any case the president shall have authority, at his discretion, to
grant a special permit to any applicant to practise medicine until he
shall have an opportunity to appear before the board in session for
examination, revokable at the discretion of the president. The board
has in its discretion authority to accept in lieu of examination a
certificate from a medical board of any other State, showing that the
applicant has passed a satisfactory examination as to his proficiency,
and obtained a license from said board to practise medicine and surgery
in said State (_ib._, s. 1,747, as amended Act 1892, c. 70).

A person obtaining a certificate from the president of the board must
cause it to be recorded in the clerk’s office of the county or the
corporation court, of the county or corporation in which he resides,
or, if he resides in the city of Richmond, in the clerk’s office of the
chancery court of the said city (_ib._, s. 1,749).

No person who shall have commenced the practice of medicine or surgery
since January 1st, 1885, or who shall hereafter commence the practice
of the same, shall practise as a physician or surgeon for compensation
without having obtained a certificate and caused it to be recorded.

PENALTY.—The violation of this act is punishable with a fine of
from $50 to $500 for each offence, and the violator is debarred from
receiving compensation for services rendered as a physician or surgeon;
a person assessed with a license tax as a physician or surgeon by any
commissioner of revenue prior to July 1st, 1892, shall be taken as
having commenced the practice of medicine or surgery prior to that
date; but any person who shall not have been so assessed shall be taken
as not having commenced such practice prior to that date (_ib._, s.
1,750, as amended Act 1892, c. 70).

NON-RESIDENTS.—A physician or surgeon residing in an adjoining State
within ten miles of the boundary line of this State, is entitled to
stand the examination and receive a certificate, and the certificate
must be recorded in that county in the State nearest to his place of
residence, and such certificate and recordation shall make it lawful
for him to practise medicine and surgery in this State (_ib._, s.
1,751).

EXCEPTIONS.—This chapter does not affect practitioners of dentistry,
nor include physicians or surgeons residing in other States called
into consultation in a special case with a physician or surgeon
residing in this State, nor does it affect in any way the laws in
reference to the license tax (_ib._, s. 1,752) nor does it apply to
midwives (_ib._, s. 1,753).

FEES.—To the board of examiners, before examination, $5 (_ib._, s.
1,747, as amended Act 1892, c. 70).

To the clerk of the court, for recording, same fee as for recording a
deed (_ib._, s. 1,749).


WASHINGTON.

EXAMINING BOARD.—The governor is required to appoint a State medical
examining board of nine members, learned and skilled in the practice
and theory of medicine and surgery (Act March 28th, 1890, s. 1).

The said board is required to hold meetings for examination on the
first Tuesday of January and July in each year, alternately in western
and eastern Washington at such places as the board may designate. The
board may call special meetings when, in the opinion of a majority of
the board, they are necessary. The board is required to keep a record
of all applicants for a license, with their ages, the time spent in the
study and practice of medicine and surgery, and the name and location
of all institutions granting to such applicants degrees or certificates
of lectures in medicine or surgery, and whether such applicant was
rejected or licensed; and said register is _prima facie_ evidence of
all matters therein recorded (_ib._, s. 2).

QUALIFICATION.—Every person desiring to commence the practice of
medicine or surgery, or either of them, in any of their or its
branches, must make a written application to the board for a license,
supported by an affidavit of the applicant, setting forth the actual
time spent in the study of medicine and surgery, and when; whether
such study was in an institution of learning and, if so, its name and
location; if not in such institution, where and under whose tutorship
such study was prosecuted, the time engaged in the actual practice,
if at all, of medicine and surgery or either, and where, and the age
of the applicant at the time of the application, such application
and affidavit to be filed and preserved of record in the office of
the secretary of the board. At the time and place designated by
the board or at a regular meeting of the board, applicants must be
examined in anatomy, physiology, chemistry, histology, materia medica,
therapeutics, preventive medicines, the practice of medicine, surgery,
obstetrics, diseases of women and children, of the nervous system, of
the eye and ear, medical jurisprudence, and such other branches as
the board deem advisable. The examination must be both scientific and
practical, and of sufficient severity to test the candidate’s fitness
to practise medicine and surgery, by written or printed, or partly
written and partly printed, questions and answers, and the same are
required to be filed and preserved of record in the said secretary’s
office. After the examination, if it be satisfactory, the board shall
grant a license, by the consent of not less than five members, except
as hereinafter provided.

REFUSAL OR REVOCATION.—The board may refuse or revoke a license for
unprofessional or dishonorable conduct, subject to the right of appeal
(_ib._, s. 3).

“Unprofessional or dishonorable conduct” means: procuring or aiding
or abetting in procuring a criminal abortion; or employing what are
popularly known as cappers or steerers; or obtaining any fee on the
assurance that a manifestly incurable disease can be permanently
cured; or wilfully betraying a professional secret; or advertisements
of medical business in which untruthful and improbable statements are
made; or advertising any medicine or means whereby the monthly periods
of women can be regulated, or the menses re-established if suppressed;
or the conviction of any offence involving moral turpitude; or habitual
intemperance (_ib._, s. 4).

In case of a refusal or a revocation of a license, the board is
required to file a brief and concise statement of the grounds and
reasons thereof in the office of its secretary, which, with the
decision of the board in writing, shall remain of record in said
office. Before a license can be revoked for unprofessional or
dishonorable conduct, a complaint of some person under oath must be
filed in the office of the secretary of the board, charging the acts
of unprofessional or dishonorable conduct and the facts complained
against the accused in ordinary and concise language, and at least ten
days prior to the hearing the board shall cause to be served upon the
accused a written notice and a copy of such complaint containing a
statement of the time and place of the hearing. The accused may appear
at the hearing and defend in person or by counsel, and may have the
sworn testimony of witnesses taken and present other evidence in his
behalf, and the board may receive arguments of counsel (_ib._, s. 5).

In case of refusal or revocation of a license by the board, there is
a right of appeal within thirty days after the filing of the decree
in the office of the secretary, to the superior court in and for the
county in which was held the last general meeting of the board prior
to the refusal of the license, in case of refusal; and to the superior
court in and for the county in which the hearing was had upon which
such license was revoked, in case of revocation. The person desiring
to appeal must serve or cause to be served on the said secretary a
written notice of appeal containing a statement of its grounds, and
must file in the said secretary’s office an appeal bond with a good
and sufficient surety to be approved by the Secretary of the State
of Washington, conditioned for the speedy prosecution of such appeal
and the payment of such costs as may be adjudicated against him upon
such appeal. Said secretary must within ten days after service of said
notice and filing, and the approval of the said appeal bond, transmit
to the clerk of the court to which the appeal is taken a certified
copy, under the seal of the board, of the decision and the grounds, in
case of refusal, and in addition a certified copy under said seal of
the complaint, in the case of revocation, with the bond and notice of
appeal. The clerk must thereupon docket such appeal causes and they
stand for trial in all respects as ordinary civil actions, and like
proceedings are had thereon. On appeal the cause is tried _de novo_.
Either party may appeal from a judgment of the superior court to the
supreme court in like manner as in civil actions within sixty days
after the rendition and entry of such judgment. If the judgment be in
favor of the party appealing from the decision of the board, and the
examining board does not appeal within sixty days, in that case at the
end of sixty days the board shall immediately issue to the successful
party the usual license, and in addition reinstate upon its records
the name of such successful applicant, in case of revocation. In case
of appeal to the supreme court by the board, no such license shall be
issued nor re-instatement required until the final determination of the
cause. In case the final decision of the supreme court be against the
board, then the said court shall make such order as may be necessary
and the board shall act accordingly. No appeal bond can be required of
the board, nor any costs adjudged or taxed against the same (_ib._, s.
6).

FILING AUTHORITY.—The person receiving a license must file it, or a
copy, with the county clerk of the county where he resides, and the
county clerk is required to file said certificate or copy and enter
a memorandum thereof, giving its date and the name of the person to
whom it was issued, and the date of filing, and on notice to him of a
change of location or the death of a person licensed or of revocation,
the county clerk is required to enter a memorandum of said fact at
the appropriate place in the record. In case of removal into another
county, the person licensed must procure from the county clerk a
certified copy of the said license, and file it with the county clerk
of the county to which he shall remove, with like effect as an original
license (_ib._, s. 7).

PENALTY, DEFINITION.—To practise medicine or surgery without a license
or contrary to this chapter is a misdemeanor punishable with a fine of
from $50 to $100, or imprisonment in a county jail from ten to ninety
days, or both. Any person is regarded as practising who appends the
letters “M.D.” or “M.B.” to his name, or for a fee prescribes, directs,
or recommends for the use of any person any drug or medicine or agency
for the treatment, care, or relief of any wound, fracture, or bodily
injury, infirmity, or disease; but the chapter does not apply to
dentists.

REGULATIONS.—The board has authority to prescribe and establish all
needful rules and regulations to carry this chapter into effect (_ib._,
s. 9).

FORMER PRACTITIONER.—All persons licensed under sec. 2,289 of the laws
of Washington Territory, 1881, or having complied with its provisions,
are to be taken and considered as licensed under this act, and the
secretary of the board is required to enter the names of such persons
upon the register kept by him, as licensed physicians and surgeons on
their written application (_ib._, s. 10).

FEE.—To the treasurer of the board, for examination, $10 (_ib._, s.
3).


WEST VIRGINIA.

QUALIFICATION.—The following persons and no others are permitted to
practise medicine:

1. Graduates of a reputable medical college in the school of medicine
to which the person desiring to practise belongs. Such person must
present his diploma to the State board of health, or the two members
thereof in his congressional district, and if it be found to be genuine
and was issued by such medical college as hereinafter mentioned, and
the person presenting it be the graduate therein named, the board or
said two members, as the case may be, must issue and deliver to him
a certificate to that effect, and such diploma and certificate shall
entitle the person named in the diploma to practise medicine in all its
departments.

2. Persons not graduates in medicine who had practised medicine in this
State under a certificate issued by the State board of health prior to
the passage of the act are authorized to practise medicine in all its
departments.

3. A person not a graduate of medicine and who has not practised
medicine in this State under a certificate must be examined by the
State board of health, or the two members thereof in the congressional
district where he resides, or if he resides out of the State by the
two members in the congressional district nearest to his place of
residence, who, together with a member of the local board of health who
is a physician, if there be such a member of the local board of health
of the county in which the examination is held, shall examine him and
if upon a full examination they find him qualified to practise medicine
in all its departments, they, or a majority of them, shall grant him
a certificate to that effect, and thereafter he shall have the right
to practise medicine in the State to the same extent as if he had the
diploma and certificate above mentioned. The members of the State board
of health in each congressional district must, by publication in some
newspaper printed in the county in which their meeting is to be held,
or if no such paper is printed therein, in some newspaper of general
circulation in such district, give at least twenty-one days’ notice of
the time and place of their meeting for the examination of applicants
for permission to practise medicine, published at least once a week for
three consecutive weeks before the day of such meeting.

This section does not apply to a physician or surgeon called from
another State to treat a particular case or to perform a particular
surgical operation in the State, or who does not otherwise practise in
the State (Code of W. Va., 1891, c. 150, s. 9).

Every person holding a certificate must have it recorded in the office
of the secretary of the State board of health, and the secretary is
required to indorse on said certificate the fact of such recordation
and deliver the same to the person named therein or his order.

The State board of health may refuse certificates to individuals guilty
of malpractice or dishonorable conduct, and may revoke certificates for
like causes; such revocation being after due notice and trial by the
said board, with right of appeal to the circuit court of the county in
which such individual resides; but no such refusal or revocation shall
be made by reason of his belonging to or practising in any particular
school or system of medicine (_ib._, s. 10).

The examination fee is not retained if a certificate is refused, but
the applicant may again, at any time within a year after refusal, be
examined without an additional fee, and if a certificate be again
refused he may, as often as he sees fit, on payment of the fee, be
examined until he obtains a certificate (_ib._, s. 11).

Examinations may be wholly or partly in writing, and shall be of an
elementary and practical character, embracing the general subjects of
anatomy, physiology, chemistry, materia medica, pathology, pathological
anatomy, surgery, and obstetrics, but sufficiently strict to test the
qualifications of the candidate as a practitioner of medicine, surgery,
and obstetrics. The chapter does not apply to females practising
midwifery (_ib._, s. 12).

DEFINITION, EXCEPTIONS.—Any person is regarded as practising medicine
who professes publicly to be a physician, and to prescribe for the
sick, or who appends to his name “M.D.” This act also applies to
apothecaries and pharmacists who prescribe for the sick. It does not
apply to commissioned officers of the United States army and navy and
marine hospital service (_ib._, s. 13).

ITINERANT PHYSICIAN OR VENDER.—Any itinerant physician or itinerant
vender of any drug, nostrum, ointment, or appliance of any kind
intended for the treatment of disease or injury, or who shall by
writing or printing or in any other method publicly profess to cure
or treat diseases, injuries, or deformities by any drug, nostrum,
manipulation, or other expedient, shall before doing so pay to the
sheriff of every county in which he desires to practise a special tax
of $50 for each month or fraction of a month he shall so practise in
such county, and take his receipt in duplicate therefor. He shall
present said receipts to the clerk of the county court of such county,
who shall file and preserve one of them in his office and indorse on
the other, “A duplicate of this receipt has been filed in my office,”
and sign the same. For such a person to practise or attempt to practise
in any county without having paid such tax and filed such receipt and
obtained such indorsement, or to practise or attempt to practise for
a longer time than that for which he has paid a tax, is a misdemeanor
punishable with a fine of from $100 to $500. Any person who shall
travel from place to place and by writing, printing, or otherwise
publicly profess to cure or treat diseases, injuries, or deformities
is deemed an itinerant physician subject to the taxes, fines, and
penalties of this section (_ib._, s. 14).

PENALTY.—To practise or attempt to practise medicine, surgery, or
obstetrics without complying with sec. 9 is a misdemeanor punishable,
for every offence, with a fine of from $50 to $500 or imprisonment in
a county jail from one month to twelve months, or both. To file or
attempt to file as his own a diploma or certificate of another, or
a false or forged affidavit of identity, or wilfully swear falsely
to any question propounded to him on examination or to any affidavit
required to be made and filed, is punishable with confinement in the
penitentiary from one to three years or imprisonment in a county jail
from six to twelve months, and a fine of from $100 to $500 (_ib._, s.
15).

FEE.—To the State board of health, or its examining members, for
examination, $10 (_ib._, s. 11).


WISCONSIN.

PROHIBITION.—No person practising physic or surgery, or both,
shall have the right to collect in any action in any court fees or
compensation for the performance of any medical or surgical service,
or to testify in a professional capacity as a physician or surgeon,
unless he shall have received a diploma from some incorporated medical
society or college or shall be a member of the State or some county
medical society legally organized in this State; provided that in all
criminal actions the court may in its discretion and in the furtherance
of justice receive the testimony of any physician or surgeon without
requiring proof of the incorporation of the medical society or college
from which he graduated (R. S., 1878, s. 1,436, as amended c. 131,
1887).

No person practising physic or surgery, or both, prohibited by the
above section from testifying in a professional capacity as a physician
or surgeon, shall assume the title of doctor, physician, or surgeon by
means of any abbreviation or by the use of any other word or words,
letters of the alphabet of the English or any other language, or any
device of whatsoever kind, printed, written, or painted, or exhibited
in any advertisement, circular, handbill, letter, or other instrument,
nor on any card, sign, door, or place whatsoever.

PENALTY, EXCEPTIONS.—A violation of this act is a misdemeanor
punishable with a fine of from $25 to $100, or imprisonment in a county
jail from ten days to sixty days for each offence (s. 1, c. 256, 1881,
as amended c. 40, 1882).

On complaint in writing under oath before any magistrate or justice of
the peace charging the commission of an offence against the provisions
of this act in his county, it is the duty of the district attorney to
prosecute the offender, and in all such prosecutions the burden of
proof shall be upon the defendant to establish his right to use such
title under the provisions of this act (_ib._, s. 2).

Any person prohibited by sec. 1 from assuming the title of doctor,
physician, or surgeon who shall practise or pretend to practise
physic or surgery, or both, is not exempted from any, but is liable
to all, of the legal penalties and liabilities of malpractice, and
ignorance shall be no excuse for a failure to perform or for neglect
or unskilfully performing or attempting to perform any of the duties
required by law of practising physicians or surgeons. The act does not
prevent students from practising under the direction of a qualified
preceptor, nor women from practising midwifery, nor veterinarians from
practising in their special department (_ib._, s. 3).


WYOMING.

QUALIFICATION.—No person can lawfully practise medicine, surgery, or
obstetrics who has not received a medical education and diploma from
some regularly chartered medical school having a _bona fide_ existence
when the diploma was granted (R. S., 1887, s. 1,925).

Every physician, surgeon, or obstetrician must file for record with
the register of deeds of the county in which he is about to practise
or where he practises, a copy of his diploma, exhibiting the original,
or a certificate from the dean of the medical school of which he is a
graduate certifying to his graduation (_ib._, s. 1,926).

When filing a copy of his diploma or certificate of graduation, he must
be identified as the person named in the paper about to be filed by the
affidavit of two citizens of the county, or his affidavit taken before
a notary public or commissioner of deeds for the State, which affidavit
must be filed in the office of the register of deeds (_ib._, s. 1,927).

PENALTY.—To practise without complying with this chapter is a
misdemeanor punishable with a fine of from $50 to $500 or imprisonment
in a county jail from thirty days to six months, or both, for each
offence. To file or attempt to file as his own a diploma or certificate
of another, or a forged affidavit of identification, is a felony
subject to a fine and imprisonment in the penitentiary (_ib._, s.
1,928).

It is the duty of the police, sheriff, or constable to arrest all
persons practising medicine, surgery, or obstetrics without complying
with these provisions (_ib._, s. 1,929).

EXCEPTIONS.—This chapter does not apply to persons in emergency
prescribing or giving advice in medicine, surgery, or obstetrics in
a section of country where no physician, surgeon, or obstetrician
resides, or where no physician, surgeon, or obstetrician resides
within a convenient distance, nor to persons prescribing in their own
families, nor to persons claiming to practise medicine, surgery, or
obstetrics in any section of the State where no physician or surgeon
having a diploma or a certificate resides (_ib._, s. 1,930).

EVIDENCE.—On the trial of persons charged with the violation of
this chapter it shall be sufficient for the prosecution to show that
defendant has practised medicine, surgery, or obstetrics within the
county where the indictment is found at any time since the passage of
the act (1876), and the defendant shall not after proof be entitled to
acquittal until he shows by the testimony of some competent witness
upon oath that the defendant has received a medical education, and a
genuine diploma from some regularly chartered medical school; provided
that the defendant may show such facts by depositions taken in the same
manner as depositions in civil cases (_ib._, s. 1,931).


THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND.

MEDICAL ACTS.—The Act 21 and 22 Victoria, c. 90, and the amendments
thereof and additions thereto, are generally spoken of as the Medical
Acts.

MEDICAL COUNCILS.—There is a general council of medical education and
registration of the United Kingdom, with branch councils for England,
Scotland, and Ireland (21 and 22 Vict., 1858, c. 90, s. 3, 6).

Members of the general council are chosen as provided in 49 and 50
Vict., c. 48, s. 7; those representing the medical corporations must be
qualified to register under this act (21 and 22 Vict., c. 90, s. 7).

The general council appoints a registrar for England, and the branch
councils for Scotland and Ireland appoint respectively a registrar for
Scotland and Ireland (_ib._, s. 10, 11).

REGISTRAR.—It is the duty of the registrars to keep their registers
correct, and to erase the names of all registered persons who shall
have died, and from time to time to make the necessary alterations in
the addresses or qualifications of persons registered. It is lawful for
the registrar to write a letter to any registered person, addressed to
him according to his address on the register, to inquire whether he has
ceased to practise or has changed his residence, and if no answer be
returned within six months from the time of sending the letter, it is
lawful to erase the name of such person from the register, but it may
be restored by direction of the general council (_ib._, s. 14).

QUALIFICATION.—Persons possessed of one or more of the qualifications
described in Schedule A, on the payment of a fee not exceeding £5, are
entitled to register on the production to the registrar of the branch
council for England, Scotland, or Ireland the document conferring
or evidencing the qualification in respect whereof he seeks to be
registered, or upon transmitting by post to such registrar information
of his name and address, and evidence of his qualifications and of the
time or times at which they were obtained. The several colleges and
bodies mentioned in Schedule A may transmit from time to time to the
registrar, under their respective seals, lists of the persons who by
grant of such colleges and bodies respectively, are for the time being
entitled to register, stating the qualifications and residences of such
persons, and it shall be lawful for the registrar on the payment of the
said fee to enter in the register the persons mentioned in such lists
with their qualifications and places of residences as therein stated
without other application (_ib._, s. 15).

The general council is required to make orders for regulating the
registers from time to time (_ib._, s. 16).

Persons actually practising medicine in England before August 1st,
1815, were entitled to register under the act (_ib._, s. 17).

Any two or more of the colleges and bodies in the United Kingdom
mentioned in Schedule A may, with the sanction and under the direction
of the general council, unite or co-operate in conducting the
examinations required for qualifications to be registered (_ib._, s.
19, 37 and 38 Vict., c. 34).

The privy council may suspend the right of registration in respect of
qualifications granted by any college or body (_ib._, s. 21).

After such revocation, no person shall be entitled to register in
respect to any qualification granted by such college before revocation
(_ib._, s. 22).

The privy council may issue an injunction directing any body entitled
to grant qualifications to desist from imposing upon any candidate
for examination an obligation to adopt or refrain from adopting
the practice of any particular theory of medicine or surgery as a
test or condition of admitting him to examination or granting him
a certificate; and in the event of their not complying, may order
that such body cease to have the power of conferring a right to be
registered so long as they shall continue such practice (_ib._, s. 23).

Where any person entitled to be registered applies to the registrar
of any branch council for that purpose, such registrar is required
forthwith to enter in a local register the name and place of residence,
and the qualifications in respect of which the person is so entitled
and the date of registration; and in case of the branch council for
Scotland or Ireland, to send to the registrar of the general council a
copy of the entry, and the registrar of the general council is required
to cause the same to be entered in the general register; and such
registrar is required to cause all entries made in the local register
for England to be entered in the general register (_ib._, s. 25).

No qualification is entered on the register, on the first registration
or by way of addition to a regular name, unless the registrar be
satisfied by proper evidence that the person claiming it is entitled to
it. Any appeal from the decision of the registrar may be decided by the
general council or by the council for England, Scotland, or Ireland, as
the case may be. Any entry proved to the satisfaction of such general
council or branch council to have been fraudulently or incorrectly made
may be erased from the register by an order in writing of such general
council or branch council (_ib._, s. 26).

MEDICAL REGISTER.—The registrar of the general council is required
to cause to be printed, published, and sold under the direction of
such council, every year, a correct register of the names with the
respective residences and medical titles, diplomas, and qualifications
conferred by any corporation or university or by a doctorate of the
Archbishop of Canterbury, with the dates thereof, of all persons
appearing on the general register as existing on January 1st in every
year. Such register is called the _Medical Register_, and a copy of
the _Medical Register_ for the time being is evidence that the persons
therein specified are registered according to the act, and the absence
of the name of any person from such copy is evidence, until the
contrary be made to appear, that such person is not so registered;
provided, that in the case of any person whose name does not appear
in such copy, a certified copy under the hand of the registrar of the
general council or a branch council of the entry of the name of such
person on the general or local register shall be evidence that such
person is so registered (_ib._, s. 27).

If any college or body exercise any power it possess of striking off
from its list the name of any one of its members, it shall signify
his name to the general council and the said council may, if they see
fit, direct the registrar to erase from the register the qualification
derived from such college or body in respect of which such member was
registered, and the registrar shall note the same therein, but the name
of no person shall be erased from the register on the ground of his
having adopted any theory of medicine or surgery (_ib._, s. 28).

If any registered medical practitioner shall be convicted in England or
Ireland of any felony or misdemeanor, or in Scotland of any crime or
offence, or shall be after due inquiry judged by the general council to
have been guilty of infamous conduct in any professional respect, the
general council may, if they see fit, direct the registrar to erase the
name of such medical practitioner from the register (_ib._, s. 29).

Every person registered who may have obtained any higher degree or
other qualification is entitled to have it inserted in the register
in substitution for or in addition to his qualification previously
registered, on the payment of such fee as the council may appoint
(_ib._, s. 30).

COMPENSATION.—No person is entitled to receive for any medical or
surgical advice, or attendance, or for the performance of any operation
or for any medicine which he shall have both prescribed and supplied,
unless he prove upon the trial that he is registered under this act
(_ib._, s. 32, as amended 23 and 24 Vict., c. 7, s. 3).

DEFINITION.—The words “legally qualified medical practitioner” or
“duly qualified medical practitioner,” or any words implying a person
recognized by law as a medical practitioner or member of the medical
profession in any act of Parliament, mean a person registered under
this act (_ib._, s. 34, as amended 23 and 24 Vict., c. 7, s. 3).

EXEMPTIONS.—If they so desire, registered persons are exempt from
serving on juries, and in all corporation, parish, ward, hundred, and
town offices, and in the militia (_ib._, s. 35).

DISQUALIFICATIONS.—No unregistered person is permitted to hold any
appointment as a physician, surgeon, or other medical officer in the
military or naval service, or in emigrant or other vessels, or in any
hospital, infirmary, dispensary, or lying-in hospital, not supported
wholly by voluntary contributions, or in any lunatic asylum, jail,
penitentiary, house of correction or of industry, parochial or union
workhouse or poor-house, parish union, or other public established
body or institution, or to any friendly or other society for affording
mutual relief in sickness, infirmity, or old age, or as a medical
officer of health (_ib._, s. 36, as amended 23 and 24 Vict., c. 7, s.
3).

No certificate required by any act from any physician or surgeon
licentiate in medicine and surgery, or other medical practitioner, is
valid unless the signer be registered under this act (_ib._, s. 37, as
amended 23 and 24 Vict., c. 7, s. 3).

PENALTY.—Wilfully procuring or attempting to procure one’s self to be
registered by making or producing or causing to be made or produced
any false or fraudulent representation or declaration, or aiding or
abetting therein, is a misdemeanor in England and Ireland, and in
Scotland a crime or offence, punishable by fine or imprisonment. The
imprisonment cannot exceed twelve months (_ib._, s. 39).

Wilfully and falsely pretending to be or taking or using the name
or title of physician, doctor of medicine, licentiate in medicine
and surgery, bachelor of medicine, surgeon, general practitioner, or
apothecary, or any name, title, addition, or description implying
registration under this act, or recognition by law as a physician or
surgeon or licentiate in medicine and surgery, or practitioner in
medicine, or apothecary, is punishable on summary conviction by a
penalty not exceeding £20 (_ib._, s. 40, 41).

DECEASED PHYSICIANS.—Every registrar of deaths in the United Kingdom,
on receiving notice of the death of any medical practitioner, is
required to transmit to the registrar of the general council and the
registrar of the branch council a certificate of such death with the
time and place, and on the receipt of such certificate the medical
registrar is required to erase the name of the deceased from the
register (_ib._, s. 45).

EXCEPTIONS.—The general council was by the act empowered by special
order to dispense with such provisions of this act or such part of any
regulations made by its authority as to them should seem fit, in favor
of persons at the time of its passage practising medicine or surgery
in any part of Her Majesty’s dominions other than Great Britain and
Ireland by virtue of any of the qualifications in Schedule A, and in
favor of persons practising medicine or surgery within the United
Kingdom on foreign or colonial diplomas or degrees before the passage
of this act, and in favor of any persons who had held appointments as
surgeons or assistant surgeons in the army, navy, or militia, or in the
service of the East India Company, or who were acting as surgeons in
the public service, or in the service of any charitable institution,
and in favor of medical students who commenced their professional
studies before its passage (_ib._, s. 46).

The _qualifications_ specified in _Schedule A_ are as follows:

1. Fellow, member (inserted 22 Vict., c. 21, s. 4), licentiate, or
extra licentiate of the Royal College of Physicians of London (this is
declared by 23 and 24 Vict., c. 66, s. 1, to denote the corporation of
“The President and College or Commonalty of the Faculty of Physics in
London”). (The act makes provision for a new charter with change of
name to “The Royal College of Physicians of England,” or retention of
old name: _ib._, s. 47, as amended 23 and 24 Vict., c. 66, s. 2.)

2. Fellow, member (inserted 22 Vict., c. 21, s. 4), or licentiate of
the Royal College of Physicians of Edinburgh. (The act makes provision
for the granting of a new charter to the Royal College of Physicians of
Edinburgh, whereby its name is to be changed to “The Royal College of
Physicians of Scotland,” or its old name may be retained: _ib._, s. 49,
as amended 23 and 24 Vict., c. 66, s. 2.)

3. Fellow or licentiate of the King’s and Queen’s College of Physicians
of Ireland. (The act makes provision for the granting of a new charter
to this college, whereby its name is to be changed to “The Royal
College of Physicians of Ireland,” or its old name may be retained:
_ib._, s. 51, as amended 23 and 24 Vict., c. 66, s. 2.)

4. Fellow or member or licentiate in midwifery of the Royal College of
Surgeons of England.

5. Fellow or licentiate of the Royal College of Surgeons of Edinburgh
(see 6, below).

6. Fellow or licentiate of the Faculty of Physicians and Surgeons of
Glasgow. (The act makes provision for the possible amalgamation of the
Royal College of Surgeons of Edinburgh with the Faculty of Physicians
and Surgeons of Glasgow, in which case the united corporation is to be
named “The Royal College of Surgeons of Scotland:” _ib._, s. 50.)

7. Fellow or licentiate of the Royal College of Surgeons in Ireland.

8. Licentiate of the Society of Apothecaries, London.

9. Licentiate of the Apothecaries’ Hall, Dublin.

10. Doctor or bachelor or licentiate of medicine, or master in surgery
of any university of the United Kingdom; or doctor of medicine, by
doctorate granted prior to the passage of the act by the Archbishop of
Canterbury.

11. Doctor of medicine of any foreign or colonial university or
college, practising as a physician in the United Kingdom before October
1st, 1858, who shall produce certificates to the satisfaction of the
council, of his having taken his degree of doctor of medicine after a
regular examination, or who shall satisfy the council under sec. 46
(amended 22 Vict., c. 21, s. 5) of this act, that there is sufficient
reason for admitting him to be registered.

Nothing in the above act shall prevent any person, not a British
subject, who shall have obtained from any foreign university a degree
or diploma of doctor in medicine, and who shall have passed the regular
examinations entitling him to practise medicine in his own country,
from being and acting as the resident physician or medical officer of
any hospital established exclusively for the relief of foreigners in
sickness; provided always such person is engaged in no medical practice
except as such resident physician or medical officer (22 Vict., c. 21,
s. 6).

The following qualification was added by 23 and 24 Vict., c. 7, s. 1:

A diploma or license in surgery granted by any university in Ireland
legally authorized to grant the same.

The act 39 and 40 Vict., c. 40, in sec. 3, provides that all persons
who have obtained from any university of the United Kingdom legally
authorized to confer the same, the degree of bachelor in surgery, shall
be permitted to register the same as a qualification under 21 and 22
Vict., c. 90.

The diploma of a member of the King’s and Queen’s College of Physicians
in Ireland, and the degree of Master in Obstetrics of any university in
the United Kingdom are added to the qualifications in Schedule A of the
Medical Act of 1858 (49 and 50 Vict., c. 48, s. 20).

The change of name of any of the corporations named in 21 and 22 Vict.,
c. 90, is not to alter or affect the qualifications constituted by the
act (23 and 24 Vict., c. 66, s. 3).

REVOCATION OF LICENSE.—The Society of Apothecaries may strike
off from the list of licentiates of said society the name of any
person who shall be convicted in England or Ireland of any felony or
misdemeanor, or in Scotland of any crime or offence, or who shall,
after due inquiry, be judged by the general council to have been
guilty of infamous conduct in any professional respect, and the said
society shall forthwith signify to the general council the name of the
licentiate so stricken off (37 and 38 Vict., c. 34, s. 4).

WOMEN.—The Society of Apothecaries is not relieved from any existing
obligation, nor deprived of any right, to admit women to the
examinations required for certificates to practise as apothecaries, or
to enter the lists of licentiates of said society, any women who shall
have satisfactorily passed such examinations, and fulfilled the other
general conditions imposed upon persons seeking to obtain from the said
society a qualification to be registered under 21 and 22 Vict., c. 90
(_ib._, s. 5).

The act 39 and 40 Vict., c. 41, extends the powers of every body
entitled under 21 and 22 Vict., c. 90, to grant qualifications for
registration so that it may grant any qualification for registration
granted by such body without distinction of sex—but nothing in this
act is compulsory.

The Medical Act of 1886 (49 and 50 Vict., c. 48) modified the foregoing
acts as follows:

EXAMINATION.—A person cannot lawfully be registered under the medical
acts in respect of any qualification referred to in any of those acts
unless he has passed such qualifying examination in medicine, surgery,
and midwifery as is in this act mentioned (49 and 50 Vict., c. 48, s.
2).

A qualifying examination shall be an examination in medicine, surgery,
and midwifery held for the purpose of granting a diploma or diplomas
conferring the right of registration under the medical acts, by any of
the following bodies:

(_a_) Any university in the United Kingdom, or any medical corporation
legally qualified at the time of the passage of this act to grant such
diploma or diplomas in respect of medicine or surgery; or

(_b_) Any combination of two or more medical corporations in the same
part of the United Kingdom, who may agree to hold a joint examination
in medicine, surgery, and midwifery, and of whom one at least is
capable of granting such diploma as aforesaid in respect of medicine,
and one at least is capable of granting such diploma in respect of
surgery; or

(_c_) Any combination of any such university as aforesaid with any
other such university or universities, or of any such university or
universities with a medical corporation or corporations; the bodies
forming such combination being in the same part of the United Kingdom
(_ib._, s. 3 [1]).

The standard of proficiency at said examinations shall be such as
suffices to guarantee the possession of knowledge and skill requisite
for the efficient practice of medicine, surgery, and midwifery. It
is the duty of the general council to secure the maintenance of such
standard of proficiency, and it may appoint such number of inspectors
as it may determine who shall attend at all or any of the said
examinations (_ib._, s. 3 [2]).

The inspectors are not to interfere with the conduct of any
examination, but to report to the general council their opinion as
to the sufficiency or insufficiency of every examination which they
attend, and such other matters in relation thereto as the general
council may require (_ib._, s. 3 [3]).

If it appears to the general council that the standard of proficiency
in medicine, surgery, and midwifery, or in any of those subjects or
any branch thereof required at such examinations by any such body, is
insufficient, the privy council, on a report from the general council
after considering such report, and any objection thereto by any body
to which it relates, may by order declare that the examination of
such body or bodies shall not be deemed a qualifying examination for
registration, and Her Majesty, with the advice of the privy council,
may revoke such order if upon further report from the general council,
or any body to which it relates, it seems to her expedient (_ib._, s. 4
[1]).

During the continuance of such order, the examinations held by the
body or bodies to which it relates shall not be deemed qualifying
examinations, and a diploma granted to a person passing such
examinations shall not entitle such person to registration (_ib._, s. 4
[2]).

If a medical corporation represent to the general council that it
is unable to enter into a combination for holding a qualifying
examination, and the general council is satisfied that the said
corporation has used its best endeavor to do so on reasonable terms,
the general council may on the application of such corporation appoint
any number of examiners to assist at the examinations for granting a
diploma conferring on the holder the right of registration (_ib._, s. 5
[1]).

It is the duty of the said assistant examiners to secure at the said
examinations the maintenance of such standard of proficiency in
medicine, surgery, and midwifery as is required from candidates at
qualifying examinations, and any examination held subject to this
section shall be deemed a qualifying examination (_ib._, s. 5 [2]).

PRACTITIONER’S RIGHTS.—A registered medical practitioner shall be
entitled to practise medicine, surgery, and midwifery in the United
Kingdom, and subject to any local law, in any other part of Her
Majesty’s dominions, and to recover in due course of law in respect
of such practice, any expenses or charges in respect of medicaments
or other appliances, or any fees to which he may be entitled, unless
he is a fellow of a college of physicians, the fellows of which are
prohibited by by-law from recovering at law their expenses, charges or
fees, in which case such prohibitory by-law, so long as it is in force,
may be pleaded in bar of any legal proceeding instituted by such fellow
for recovery of expenses, charges, or fees (_ib._, s. 6).

MEMBERS OF GENERAL COUNCIL.—The constituent members of the general
council are designated by this act in sec. 7.

Members of the general council representing the registered medical
profession must themselves be registered medical practitioners, and
members of the branch council for the part of the United Kingdom in
which they are elected (_ib._, s. 8).

COLONIAL AND FOREIGN PRACTITIONERS.—When a person shows to the
satisfaction of the registrar of the general council that he holds
some recognized colonial medical diploma or diplomas granted to him
in a British possession to which this act applies, and that he is of
good character, and is by law entitled to practise medicine, surgery,
and midwifery in such British possession, he shall on application to
the said registrar, and on the payment of such fee not exceeding £5,
as the general council may determine, be entitled without examination
in the United Kingdom to be registered as a colonial practitioner in
the medical register; provided he proves to the satisfaction of the
registrar:

(1) That the said diploma or diplomas was or were granted to him at a
time when he was not domiciled in the United Kingdom, or in the course
of a period of not less than five years during the whole of which he
resided outside of the United Kingdom; or

(2) That he was practising medicine or surgery or a branch of medicine
or surgery in the United Kingdom on the prescribed day, and that he has
continued practising the same either in the United Kingdom or elsewhere
for not less than ten years immediately preceding the prescribed day
(_ib._, s. 11).

When a person shows to the satisfaction of the registrar of the
general council that he holds some recognized foreign medical diploma
or diplomas granted in a foreign country, to which this act applies,
and that he is of good character, and is by law entitled to practise
medicine, surgery, and midwifery in such foreign country, he shall
on application to said registrar, and on payment of such fee, not
exceeding £5, as the general council may determine, be entitled without
examination in the United Kingdom to be registered as a foreign
practitioner in the medical register; provided he proves to the
satisfaction of the registrar:

(1) That he is not a British subject; or

(2) That, being a British subject, the said diploma or diplomas was or
were granted to him at a time when he was not domiciled in the United
Kingdom or in the course of a period of not less than five years,
during the whole of which he resided out of the United Kingdom; or

(3) That, being a British subject, he was practising medicine or
surgery, or a branch of medicine or surgery in the United Kingdom on
the prescribed day, and that he has continued practising the same
in the United Kingdom or elsewhere, for not less than ten years
immediately preceding the said prescribed day (_ib._, s. 12).

The medical diploma granted in a British possession or foreign country
to which this act applies, which is to be deemed requisite, shall
be such a diploma as may be recognized by the general council as
furnishing a sufficient guarantee of the possession of the requisite
knowledge and skill for the efficient practice of medicine, surgery,
and midwifery.

When the general council have refused to recognize any such diploma,
the privy council may, on appeal, after communicating with the general
council, order the general council to recognize such diploma.

If the refusal of the registration of a colonial or foreign
practitioner be on any other ground, the registrar of the general
council shall, if required, state in writing the reason for the
refusal, and the person refused may appeal to the privy council, which,
after communicating with the general council, may dismiss the appeal
or order the general council to enter the name of the applicant on the
register.

A person may be registered both as a colonial and foreign practitioner
(_ib._, s. 13).

The medical register shall contain separate lists of the names and
addresses of colonial and foreign practitioners, and the provisions
of 21 and 22 Vict., c. 90, relating to persons registered and to the
medical register, and to offences, shall apply in the case of colonial
and foreign practitioners registered under this act so far as may be
(_ib._, s. 14).

Any registered practitioner on the list of colonial or foreign
practitioners who is in possession of or obtains any recognized
colonial or foreign medical diploma granted in a British possession or
foreign country to which this act applies may cause a description of
such diploma to be added to his name in the medical register (_ib._, s.
15).

Any registered medical practitioner on the medical register by virtue
of English, Scotch, or Irish qualifications, and in possession of a
foreign degree in medicine, may cause a description of such foreign
degree to be added to his name as an additional title in the medical
register, provided he satisfy the general council that he obtained such
degree after a proper examination and prior to the passage of this act
(_ib._, s. 16).

Her Majesty may from time to time, by order in the council, declare
that this act be deemed to apply to any British possession or foreign
country which in the opinion of Her Majesty affords the registered
medical practitioners of the United Kingdom such privileges of practice
in the said British possessions or foreign countries as to Her Majesty
may seem just; and on and after the day named in such order such
British possession or foreign country shall be deemed to be a British
possession or foreign country to which this act applies. Her Majesty
may also renew or revoke any such order, and upon such revocation such
possession or foreign country shall cease to be a possession or country
to which this act applies without prejudice to the right of any person
whose name has already been entered on the register (_ib._, s. 17).

Nothing in the Medical Act of 1858 shall prevent a person holding
a medical diploma, entitling him to practise medicine or surgery
in a British possession to which this act applies, from holding an
appointment as a medical officer in any vessel registered in that
possession (_ib._, s. 18).

DEFAULT OF GENERAL COUNCIL.—In default of the general council to
perform any duty, the privy council may notify their opinion to
the general council, and on the failure of the general council to
comply with any direction of the privy council, the privy council may
themselves give effect to such direction, and for that purpose exercise
any power vested in the general council, and of their own motion do
anything which they are authorized to do in pursuance of a report or
suggestion from the general council (_ib._, s. 19).

SANITARY SCIENCE.—Every registered medical practitioner to whom a
diploma for proficiency in sanitary science, public health or state
medicine has after special examination been granted, by any college or
faculty of physicians or surgeons or university in the United Kingdom,
or by any such bodies acting in combination, shall, if such diploma
appear to the privy council or general council to deserve recognition
in the medical register, be entitled on the payment of such fee as the
general council may appoint, to have such diploma entered in the said
register in addition to any other diploma or diplomas in respect of
which he is registered (_ib._, s. 21).

EVIDENCE.—Any act of the privy council shall be sufficiently signified
by an instrument signed by the clerk of the council, and every order
and act signified by an instrument purporting to be signed by the clerk
of the council shall be deemed to have been duly made and done by the
privy council, and every instrument so signed shall be received in
evidence without proof of the authority or signature of the clerk of
the council or other proof (_ib._, s. 22).

The following copies of any orders made in pursuance of medical acts or
this act shall be evidence:

(1) Any copy purporting to be printed by the Queen’s printer, or by any
other printer in pursuance of an authority given by the general council.

(2) Any copy of an order certified to be a true copy by the registrar
of the general council, or by any other person appointed by the general
council, either in addition to or in exclusion of the registrar, to
certify such orders (_ib._, s. 23).

RIGHTS UNAFFECTED.—This act does not vary the rights of persons
practising as registered medical practitioners on the day preceding the
day when it goes into effect (_ib._, s. 24).

In consequence of the repeal of any enactment repealed by this act, no
person legally entitled to practise as a medical practitioner in any
colony or part of Her Majesty’s dominions other than the United Kingdom
shall cease to be so entitled if he would have been entitled if no such
repeal had taken place (_ib._, s. 25).

DEFINITIONS.—In the act the word diploma means any diploma, degree,
fellowship, membership, license, authority to practise, letters,
testimonial, certificate or other status or document granted by any
university, corporation, college, or other body or by any departments
of or person acting under the authority of the government of any
country or place within or without Her Majesty’s dominion (_ib._, s.
27).

FEES.—The fees are to be determined by the general council within the
limits set by the various sections authorizing fees.


BRITISH COLUMBIA.

MEDICAL COUNCIL.—There is a body styled “The Medical Council of
British Columbia,” composed of seven members who are registered medical
practitioners elected by the votes of registered medical practitioners
(Cons. Acts 1888, c. 81, s. 2, 3, 4, 5).

No person can lawfully vote at such election unless his fees to the
council have been paid; and no person is eligible to election unless
qualified to vote at such election (_ib._, s. 14).

A register of such qualified voters is required to be prepared by the
registrar of the council and no person is entitled to vote whose name
is not on the register; it is the duty of the registrar to examine into
the written complaint of any medical practitioner as to the improper
omission or insertion of any name in the list; and appeal from his
decision lies to a judge of the supreme court in a summary way, whose
decision shall be final, and no unregistered person may vote (_ib._, s.
16, 17).

REGISTER.—The council is required to appoint a registrar and to cause
a register to be kept by him of the names of all persons who have
complied with this act and with the rules and regulations made by the
council respecting the qualifications of practitioners of medicine or
surgery, and those persons only whose names are inscribed in the said
register, are deemed qualified and licensed to practise medicine or
surgery except as hereinafter provided (_ib._, s. 26).

The registrar is required to keep his register correct, and to make the
necessary alterations in the addresses and qualifications of registered
persons (_ib._, s. 27).

QUALIFICATION.—Every person at the passage of the act (1886)
registered under the medical ordinance of 1867 is entitled to be
registered under this act (_ib._, s. 28).

The council is required to admit upon the register any person who shall
procure from any college or school of medicine and surgery requiring
a three-years’ course of study, a diploma of qualification, provided
he furnish to the council satisfactory evidence of identity and pass
before the members thereof a satisfactory examination touching his
fitness and capability to practise as a physician and surgeon (_ib._,
s. 29).

The council is required to admit upon the register every person
mentioned in 49 and 50 Vict., c. 48, of the Acts of Parliament of the
United Kingdom, duly registered under the imperial Medical Act, prior
to and inclusive of June 30th, 1887, upon complying with the orders,
regulations or by-laws of the council and giving due proof of such
registration, and that the person applying for registration has not
lost the benefit of same by reason of misconduct or otherwise, and upon
payment of the fees fixed by the council, not to exceed one hundred
dollars (Act 1893, c. 27, s. 2).

DUTIES OF COUNCIL.—The council is required to make orders,
regulations, or by-laws for regulating the register and the fees to
be paid for registration, and to make rules and regulations for the
guidance of examiners, and may prescribe the subjects and modes of
examination, and make all such rules and regulations in respect of
examinations not contrary to this act as they deem expedient and
necessary (Cons. Acts 1888, c. 81, s. 31).

FORFEITURE OF RIGHT.—Any registered practitioner convicted of any
felony thereby forfeits his right to registration and by direction of
the council his name is required to be erased from the register, or in
case a person known to have been convicted of felony presents himself
for registration, the registrar has power to refuse such registration
(_ib._, s. 32).

RIGHTS OF REGISTERED PRACTITIONER.—Every person registered under the
act is entitled to practise medicine and surgery, including midwifery,
or any of them as the case may be, in British Columbia, and to demand
and receive in any court of the province, with full costs of the suit,
reasonable charges for professional aid, advice, and visits, and the
costs of any medical or surgical appliances rendered or supplied by him
to his patient (_ib._, s. 33).

EVIDENCE.—The registrar of the council, under the direction of the
council, is required to publish a correct register of the names and
residences with the medical titles, diplomas, and qualifications
conferred by any college or body, of all persons appearing on the
register at the date of publication. Said register is called “The
British Columbia Medical Register.” A copy of such register for the
time being, purporting to be so printed and published, shall be _prima
facie_ evidence that the persons therein specified are registered
according to the provisions of this act; and, subject to sub. sec. 2
of this section, the absence of the name of any person from such copy
shall be _prima facie_ evidence that such person is not registered
according to this act (_ib._, s. 34).

In the case of a person whose name does not appear in such copy, a
certified copy under the hand of the registrar of the entry of the name
of such person on the register shall be evidence that such person is
registered under this act (_ib._, s. 34, sub. s. 2).

HOMŒOPATHIC PHYSICIANS.—Any homœopathic physician holding a diploma
of qualification from any authorized school or college requiring a
three-years’ course of study may be registered, and shall not be bound
to pass the examination required by sec. 29, but in lieu thereof, shall
pass before the council, or such of them as may be appointed for that
purpose, a satisfactory examination in anatomy, physiology, pathology,
chemistry, obstetrics, and surgery (_ib._, s. 35, as amended, Act 1890,
c. 30, s. 2).

NEGLECT TO REGISTER.—Those entitled to register and neglecting to do
so are not entitled to any of the rights and privileges conferred by
registration and are liable to all penalties against unqualified or
unregistered practitioners (_ib._, s. 37).

FRAUDULENT REGISTRATION.—If a person procures or causes to be procured
his registration by means of any false or fraudulent representation or
declaration, the registrar may, on receipt of sufficient evidence to
that effect, report the matter to the council and, on the written order
of the president, attested by the seal of the council, erase the name
of such person from the register and make known the fact and the cause
thereof in the British Columbia _Gazette_, and after such notice has
appeared such person shall cease to be a registered practitioner, and
to enjoy any of the privileges conferred by registration, without the
express sanction of the council (_ib._, s. 39).

To wilfully procure or attempt to procure registration by false
representations or declarations is punishable by a penalty not
exceeding $100. To knowingly aid or assist therein is punishable with a
penalty of from $20 to $50 for each offence (_ib._, s. 40).

UNLAWFUL PRACTICES.—It is not lawful for any person not registered
to practise medicine or surgery for hire, gain, or hope of reward.
To so practise or profess to practise, or advertise to give advice in
medicine or surgery, is punishable with a penalty of from $25 to $100
(_ib._, s. 41).

For a person to wilfully or falsely pretend to be a physician, doctor,
or medical, surgical, or general practitioner, or assume any title,
address, or description other than he actually possesses and is legally
entitled to, is punishable by a penalty of from $10 to $50 (_ib._, s.
42).

A person not registered who takes or uses any name, title, addition, or
description implying or calculated to lead people to infer that he is
registered or recognized by law as a physician, surgeon, or licentiate
in medicine or surgery is punishable with a penalty of from $25 to $100
(_ib._, s. 43).

Costs may be awarded in addition to the penalty against an offender,
and on default of payment he may be committed to the common jail for
one month unless the costs are sooner paid (_ib._, s. 47).

UNREGISTERED PERSONS.—No one but a person registered under this act is
entitled to receive any charge for any medical or surgical advice or
attendance or the performance of any operation or for any medicine that
he may have prescribed (_ib._, s. 44).

Appointments as medical officers, physicians, or surgeons in any branch
of the public service, or in a hospital or a charitable institution not
supported wholly by voluntary contribution, are conferred on registered
persons only (_ib._, s. 45).

No certificate required from any physician or surgeon or medical
practitioner is valid unless the signer is registered (_ib._, s. 46).

EVIDENCE.—In a prosecution, the burden of proving registration is upon
the person charged (_ib._, s. 48).

Registration may be proved by the production of a printed or other
copy of the register certified under the hand of the registrar of the
council for the time being, and any certificate on such copy purporting
to be signed by any person as registrar is _prima facie_ evidence that
he is registrar without further proof (_ib._, s. 49).

LIMITATIONS.—Prosecutions under the act must be commenced within six
months from the date of the offence (_ib._, s. 50).

STAY.—The council may stay proceedings in prosecutions (_ib._, s. 51).

PROSECUTOR.—Any person may be prosecutor or complainant under the act
(_ib._, s. 52).

FEES.—To the registrar, for registration under this act, such sum as
may from time to time be fixed by the council by resolutions or by-law,
but not exceeding $100 (_ib._, s. 36, as amended, Act 1893, c. 27, s.
1).

To the medical council, on or before March 1st, annually, $10, or such
other sum as may from time to time be fixed by the council (_ib._, s.
53, as amended, Act 1890, c. 30, s. 3).

For registration, by persons registered under Act 1893, c. 27, s. 2, a
fee fixed by the council not to exceed $100 (Act 1893, c. 27, s. 2).


MANITOBA.

COLLEGE OF PHYSICIANS AND SURGEONS.—The medical profession is
incorporated as “The College of Physicians and Surgeons of Manitoba”
(Rev. Stat. of Man., 1891, c. 98, s. 2).

All persons lawfully registered under previous acts or the present act
are members of the said college (_ib._, s. 3, 4).

COUNCIL.—There is constituted by law a council of the said college
composed of representatives selected as provided in the act, each of
whom must be a practitioner licensed under this act (_ib._, s. 5 to 8).

No member of the college who is in arrears for his annual fees or any
part thereof is entitled to vote at the election for members of the
council or be eligible for election as a member thereof (_ib._, s. 15).

REGISTER.—The council is required to appoint a registrar and to cause
a register to be kept in which shall be entered the name of every
person registered under this act or under the Consolidated Statutes of
Manitoba, chap. 9, and the acts amending the same, and of all persons
who comply with this act, and the rules and regulations made by the
council respecting the qualifications of practitioners of medicine,
surgery, and midwifery. Only those whose names are inscribed in the
book are deemed qualified and licensed to practise medicine, surgery,
or midwifery (_ib._, s. 17, 24, 25).

QUALIFICATION.—All persons duly registered under existing laws when
the revised statutes took effect are deemed registered under the
present law (_ib._, s. 27).

The registrar was required immediately upon his appointment to register
the name of every person registered under previous acts (_ib._, s. 28).

Every person who possesses one or more of the following qualifications
shall, upon the payment of the fee, to be fixed for each particular
class by by-law of the council, be entitled to be registered on the
production to the registrar of the document proving such qualification:

1. Persons entitled to be registered at the time of the coming into
force of the revised statutes.

2. Any member of any incorporated college of physicians and surgeons
of any province of the Dominion of Canada, or any member of any other
incorporated body of medical men in Canada, exercising powers similar
to those conferred by this act on the College of Physicians and
Surgeons of Manitoba, where, by the laws of the province under which
the said incorporated body exists, similar rights to register and to
practise medicine are granted to the persons incorporated under this
act.

3. Every person mentioned in chap. 48 of Act 49 and 50 Vict. of the
Parliament of the United Kingdom.

4. Every graduate in medicine upon examination of the University of
Manitoba.

5. Every person who produces to the registrar the certificate under the
corporate seal of the University of Manitoba hereinafter provided for
(_ib._, s. 29).

The registrar is required to keep his register correct, and to make
from time to time the necessary alterations in the addresses or
qualifications of the persons registered (_ib._, s. 30).

Every person registered who obtains a higher degree or other
qualification is entitled to have it inserted in the register in
substitution of or in addition to the qualification previously
registered, on the payment of such fees as the council may appoint
(_ib._, s. 34).

No qualification is entitled to be entered on the register unless the
registrar be satisfied by proper evidence that the person claiming it
is entitled thereto. Appeal lies from the registrar’s decision to the
council (_ib._, s. 35).

The registrar, if dissatisfied with the evidence adduced, may, subject
to appeal to the council, refuse registration until proper evidence is
furnished, duly attested by oath or affirmation before a judge of any
county court (_ib._, s. 36).

FRAUDULENT REGISTRATION.—Any entry proved to the satisfaction of the
council to have been fraudulently or incorrectly made may be erased
from the register by order in writing of the council (_ib._, s. 38).

If a person procures or causes to be procured his registration by false
or fraudulent representations or declarations, the registrar may,
on the receipt of sufficient evidence of the falsity or fraudulent
character, represent the matter to the council, and may on the written
order of the president, attested by the seal of the college, erase his
name from the register, and cause notice of the fact and cause to be
published in the Manitoba _Gazette_, and after such notice has appeared
such person shall cease to be a member of the College of Physicians
and Surgeons, and to enjoy any privilege enjoyed or conferred by
registration at any further time without the express sanction of the
council (_ib._, s. 39).

FORFEITURE OF RIGHTS.—Any registered medical practitioner convicted
of felony or misdemeanor before or after the passage of the act or his
registration forfeits his right to registration, and by direction of
the council his name shall be erased. If a person known to have been
convicted of felony or misdemeanor presents himself for registration,
the registrar may refuse registration. If any person registered be
judged, after due inquiry by the council, to have been guilty of
infamous or unprofessional conduct in any respect, the council may
direct the registrar to erase his name (_ib._, s. 40).

The council may, and upon the application of any three registered
medical practitioners shall, cause inquiry to be made into the case of
a person liable to have his name erased from the register, and on proof
of such conviction or such infamous or unprofessional conduct shall
cause his name to be erased; but no erasure shall be made on account of
his adopting or refraining from adopting the practice of any particular
theory of medicine or surgery, nor on account of conviction for a
political offence out of Her Majesty’s dominions, nor on account of the
conviction which ought not in the opinion of the council or committee
disqualify him from the practice of medicine or surgery (_ib._, s. 41).

The council may order to be paid, out of funds at their disposal,
such costs as to them may seem just, to any person against whom any
complaint has been made which, when fully determined, is found to have
been frivolous and vexatious (_ib._, s. 42).

An entry erased by order of the council shall not be again entered
except by order of the council or a judge or court of competent
jurisdiction (_ib._, s. 43).

If the council think fit, they may direct the registrar to restore any
entry erased, without a fee, or on payment of a fee not exceeding the
registration fee, as the council may fix (_ib._, s. 44).

The council is authorized to ascertain the facts of any case for the
exercise of its powers of erasing and restoring by committee (_ib._, s.
45).

The act provides in detail for proceedings before such committee
(_ib._, s. 46 to 50).

No action shall be brought against the council or committee for
anything done _bona fide_ under the act. Appeal from the decision to
erase lies to any judge of the court of Queen’s Bench for Manitoba,
and such judge may make such order as to restoration or confirmation
of erasure or for further inquiry, and as to costs, as to him may seem
right (_ib._, s. 51).

EVIDENCE.—In a trial under this act the burden of proof as to
registration is on the person charged (_ib._, s. 53).

The production of a certificate that the person named is duly
registered, certified under the hand of the registrar, is sufficient
evidence of registration, and his signature in the capacity of
registrar is _prima facie_ evidence that he is registrar without proof
of signature or that he is registrar (_ib._, s. 54).

The registrar is required to print and publish from time to time under
the direction of the council a correct register of the names and
residences, with medical titles, diplomas, and qualifications conferred
by any college or body, with the date thereof, of all persons appearing
on the register as existing on the day of publication (_ib._, s. 55).
The register is called “The Manitoba Medical Register;” a copy thereof
for the time being purporting to be so printed and published is _prima
facie_ evidence that the persons specified are registered (_ib._, s.
56).

In the case of any person whose name does not appear in such copy, a
certified copy under the hand of the registrar of the council of the
entry of the name of such person on the register is evidence that
such person is registered (_ib._, s. 57). The absence of the name of
any person from such copy is _prima facie_ evidence that he is not
registered (_ib._, s. 58).

PRACTITIONER’S RIGHTS.—Every person registered is entitled according
to his qualifications to practise medicine, surgery, or midwifery, or
any of them as the case may be, and to demand and recover full costs
of suit, reasonable charges for professional aid, advice, and visits,
and the cost of any medicine or other medical appliances rendered or
supplied by him to his patient (_ib._, s. 59).

NEGLECT TO REGISTER.—A person neglecting to register is not entitled
to the rights and privileges conferred, and is liable to all penalties
against unqualified or unregistered practitioners (_ib._, s. 60).

UNREGISTERED PERSONS.—It is not lawful for any person not registered
to practise medicine, surgery, or midwifery for hire, gain, or hope of
reward (_ib._, s. 61).

No person is entitled to receive any charge for medical or surgical
advice or attendance, or the performance of any operation, or for
any medicine which he may have prescribed or supplied, unless he be
registered, but this provision does not extend to the sale of any drug
or medicine by a licensed chemist or druggist (_ib._, s. 62).

No person can be appointed as a medical officer, physician, or
surgeon in the public service, or in any hospital or other charitable
institution not supported wholly by voluntary contribution, unless he
be registered (_ib._, s. 63).

No certificate required from any physician or surgeon or medical
practitioner is valid unless the signer be registered (_ib._, s. 64).

DEFINITION.—The expression “legally qualified medical practitioner,”
or any other words importing legal recognition as a medical
practitioner or member of the medical profession, in any law, is
construed to mean a person registered under this act (_ib._, s. 65).

IMMUNITIES.—A person registered under this act is exempt from jury and
inquest duty if he desire it (_ib._, s. 66).

LIMITATIONS.—No duly registered member of the College of Physicians
and Surgeons is liable in an action for negligence or malpractice by
reason of professional services requested or rendered, unless it be
commenced within one year from the termination of such service (_ib._,
s. 67).

EXAMINATIONS.—The University of Manitoba is the sole examining body
in medicine, and the council of the university may grant to any person
a certificate under the seal of the university that the council of
the university have been satisfied that the person mentioned in the
certificate is, by way of medical education and otherwise, a proper
person to be registered under this act; but such certificate shall not
be granted until the person making such application shall have given
evidence of qualification by undergoing an examination or otherwise,
as the statutes of the university require, and the applicant shall in
all other respects first comply with the rules and regulations of the
university in that behalf (_ib._, s. 68).

HOMŒOPATHISTS.—Until a homœopathic medical college for teaching
purposes is established in Manitoba, in the case of candidates wishing
to be registered as homœopathists, the full time of attendance upon
lectures and hospitals required by the university statutes may be spent
in such homœopathic medical colleges in the United States or Europe as
may be recognized by the University of Manitoba (_ib._, s. 69).

Every candidate who at the time of his examination signifies his
wish to be registered as a homœopathic practitioner shall not be
required to pass an examination in materia medica or therapeutics, or
theory or practice of physic, or in surgery or midwifery, except the
operative practical parts thereof, before any examiners other than
those homœopathic examiners who shall be appointed by the University of
Manitoba (_ib._, s. 70).

UNLAWFUL PRACTICES.—To wilfully procure or attempt to procure
registration by false or fraudulent representation or declaration, is
punishable by a penalty not exceeding $100. To knowingly aid or assist
therein, is punishable by a penalty of from $20 to $50 for each offence
(_ib._, s. 73).

Persons not registered, for hire, gain, or the hope of reward,
practising or professing to practise medicine, surgery, or midwifery,
or advertising to give advice in medicine, surgery, or midwifery, are
liable to a penalty of from $25 to $100 (_ib._, s. 74).

A person wilfully or falsely pretending to be a physician, doctor
of medicine, surgeon, or general practitioner, or assuming a title,
addition, or description other than he actually possesses and is
legally entitled to, is liable to a penalty of from $10 to $50 (_ib._,
s. 75).

For a person to assume a title calculated to lead people to infer that
he is registered, or is recognized by law as a physician, surgeon,
or accoucheur or a licentiate in medicine, surgery, or midwifery, is
punishable with a penalty of from $25 to $100 (_ib._, s. 76).

On prosecution, costs may be awarded in addition to the penalty, and
the offender may be committed to the common jail for one month, unless
the penalty and costs are sooner paid (_ib._, s. 78).

PROSECUTOR.—Any person may be prosecutor or complainant under the act
(_ib._, s. 80).

LIMITATIONS.—Prosecutions are limited to commence within six months
after the date of the offence (_ib._, s. 81).

APPEAL.—A person convicted under this act, giving notice of appeal,
must before being released give satisfactory security for the penalty
and costs of conviction and appeal (_ib._, s. 82).

STAY.—The council may stay proceedings in prosecutions (_ib._, s. 84).

FEES.—The council is authorized to determine by by-law an annual fee,
which is required to be paid by each member of the college—the fee can
be not less than $2, nor more than $5, is payable on January 1st, and
may be recovered as a debt by the college (_ib._, s. 32).

The fee for registration is subject to regulation by the council
(_ib._, s. 33).


NEW BRUNSWICK.

MEDICAL SOCIETY.—All persons registered under the act constitute the
New Brunswick Medical Society (Act 1881, c. 19, s. 2).

COUNCIL.—There is a medical council called the Council of Physicians
and Surgeons of New Brunswick, of nine legally qualified medical
practitioners, of not less than seven years’ standing; four are
nominated and appointed by the governor in council, and five by the New
Brunswick Medical Society (_ib._, s. 3, 5).

The secretary of the council is the registrar (_ib._, s. 7).

REGISTER, EVIDENCE.—The registrar is required before May 1st annually
to print and publish in the _Royal Gazette_ of the province, and such
other manner as the council shall appoint, a correct register of the
names and residences and medical titles, diplomas, and qualifications
conferred by any college or body, with the dates thereof, of all
persons appearing on the register on the 1st of January. The register
is called the Medical Register; a copy for the time being purporting to
be so printed and published, or a certificate signed by the president
of the council, and attested by the registrar with the corporate seal
of the council, is _prima facie_ evidence that the persons therein
specified are registered and qualified; the absence of a name from such
copy or the want of such certificate is _prima facie_ evidence that
such person is not registered. If a name does not appear on the copy, a
certified copy, under the hand of the registrar of the council, of the
entry of a name on the register is evidence of registration (_ib._, s.
8).

ENTRANCE UPON STUDY.—A person beginning or entering on the study
of physic, surgery, or midwifery, for the purpose of qualifying to
practise in the province, must have obtained from the council a
certificate that he has satisfactorily passed a matriculation or
preliminary examination in the subjects enumerated in the act, unless
he has passed a matriculation examination for the medical course in
arts and science at some college in Great Britain, Ireland, Canada, the
United States of America, or the Continent of Europe (_ib._, s. 10).

The act prescribes formalities for admission to such preliminary
examination (_ib._, s. 10).

QUALIFICATION.—Subject to the exceptions hereinafter, no person
can lawfully practise physic, surgery, or midwifery unless he be
registered, or unless he shall have received from the council a license
to practise (_ib._, s. 11).

No person is entitled to registration or license unless he shall
satisfy the council that he has passed a matriculation or preliminary
examination; that after passing such examination he has followed his
studies for not less than four years, one of which may be under the
direction of one or more general practitioners duly licensed; that
during such four years he has attended at some university, college,
or incorporated school of medicine in good standing, courses of
lectures amounting together to not less than twelve months on general
anatomy, on practical anatomy, on surgery, on practice of medicine,
on midwifery, on chemistry, on materia medica and pharmacy, and on
the institutes of medicine or physic, and one three-months’ course
of medical jurisprudence; that he has attended the general practice
of an hospital in which are not less than fifty beds under the charge
of not less than two physicians or surgeons, for not less than one
year or two periods of not less than six months each; that he has
also attended two three-months’ courses or one six-months’ course of
clinical medicine, the same of clinical surgery; that he has, after an
examination in the subjects of the course, obtained a degree or diploma
from such university, college, or incorporated medical school if such
institution require a four-years’ course for its diploma, or for the
want of such degree or diploma that he has satisfactorily passed an
examination in the various branches hereinbefore specified before the
examiners appointed by the council; that he is not less than twenty-one
years of age; that he has paid to the registrar of the council a fee
of ten dollars. The council has power, subject to the approval of
the governor in council, to make alterations as may be required in
the foregoing curriculum. If any person apply for registration as a
practitioner of any system of medicine, the registered practitioners of
that system have the right to appoint an examiner or examiners on the
subjects peculiar to that system, viz., materia medica, pharmacy, and
therapeutics, and if they neglect so to do the council has the power to
appoint such examiner or examiners (_ib._, s. 12).

The last preceding section does not apply to persons in actual practice
entitled to register under sec. 38. Any person producing to the council
conclusive evidence that he has passed a matriculation or a preliminary
examination, as required by this act for persons beginning medical
studies in New Brunswick, that he has before graduating or taking a
diploma studied at least four years as provided in sec. 12, or pursued
what the council deem an equivalent course of study and has passed a
final examination in the subjects of such course, or, for the want of
such requirement, shall have fulfilled such conditions as the council
may determine, and shall pay a fee of ten dollars, shall be entitled to
registration and to receive a license to practise (_ib._, s. 13).

The act makes special provision for residents of the province who began
study before January 1st, 1881 (_ib._, s. 14, as amended 1882, c. 30,
s. 1).

DUTIES OF COUNCIL.—The council is empowered and required to regulate
the study of medicine, surgery, and midwifery, with regard to
preliminary qualifications, course of study, final examination, and the
evidence to be produced before the council; to appoint a registration
committee; to examine all degrees, diplomas, licenses, and other
credentials presented or given in evidence under the act to enable the
owner to practise in New Brunswick, and to oblige the owner to attest
on oath or affirmation that he is the person whose name is mentioned
therein, and that he became possessed thereof properly and honestly;
to cause every member of the profession practising in New Brunswick to
register his name, age, place of residence, place of nativity, date
of license or diploma, and the place where he obtained it; to appoint
medical examiners, who may be members of the council, to hold final
examinations, who shall be regularly qualified practitioners of not
less than five years’ professional standing and three years’ residence
in the province (_ib._, s. 15, as amended 1882, c. 30, s. 2, 3).

CORRECTION OF REGISTER.—The registrar is required to erase the names
of all registered persons who shall have died, left the province
without the intention of returning, or ceased to practise for five
years; and from time to time to make the necessary alterations in the
addresses or qualifications of registered persons. Any name erased
shall be restored by the order of the council on sufficient cause duly
shown (_ib._, s. 18).

NEGLECT TO REGISTER.—Persons entitled to registration, neglecting or
omitting to register, are not entitled to any rights or privileges
conferred by the act (_ib._, s. 19).

SYSTEM OF PRACTICE.—No person otherwise qualified shall be refused
registration or license on account of the adoption or the refusal to
adopt the practice of any particular theory of medicine or surgery.
In case of refusal the aggrieved party may appeal to the governor in
council, who is required, on due cause shown, to issue an order to the
council to register his name and grant him a license to practise, and
thereupon the council shall forthwith register his name and grant him a
license to practise (_ib._, s. 20).

EVIDENCE OF QUALIFICATION, FRAUDULENT REGISTRATION.—No qualification
can be entered unless the registrar be satisfied by proper evidence
that the person claiming it is entitled to it. An appeal may be made
from the registrar’s decision to the council. Any entry proved to the
satisfaction of the council to have been fraudulently or incorrectly
made may be erased by the order in writing of the council, and the name
of such person fraudulently registering, or attempting to register,
may, at the discretion of the council, be published in the next issue
of the _Royal Gazette_ (_ib._, s. 21).

FORFEITURE OF RIGHT.—A registered medical practitioner convicted of
felony, or after due inquiry judged by the council to have been guilty
of infamous conduct in any professional respect thereby, subject to
appeal to the governor in council, forfeits his right to registration,
and by the direction of the council his name shall be erased from the
register (_ib._, s. 22).

The time and place of inquiry under the preceding section must be fixed
by the council, and at least fourteen days’ notice given to the party
against whom inquiry is ordered (Act 1886, c. 82, s. 6).

The Act of 1886, c. 82, regulates the procedure on such inquiry.

ADDITIONAL QUALIFICATIONS.—Every person registered who may obtain a
higher degree or other qualification is entitled to have it registered
in substitution for, or in addition to, the qualifications previously
registered, on the payment of such fee as the council may demand (Act
1881, c. 19, s. 23).

PRACTITIONER’S RIGHTS.—Every person registered under the act is
entitled according to his qualifications to practise medicine, surgery,
midwifery, or dentistry, or either or any of them as the case may
be, and to demand and recover reasonable and customary charges for
professional aid, advice, and visits, and the cost of any medicine or
other medical or surgical appliances rendered or supplied by him to his
patients (_ib._, s. 24).

No person is entitled to recover any such charge unless he shall prove
upon the trial that he is registered under this act (_ib._, s. 25).

DEFINITION.—The words “legally qualified medical practitioner,” or
“duly qualified medical practitioner,” or other words implying that a
person is recognized by law as a medical practitioner or member of the
medical profession, when used in a legislative act or a legal or public
document mean a person registered under this act (_ib._, s. 26).


UNREGISTERED PERSONS.—No person shall be appointed a medical officer,
physician, or surgeon in the public service or in any hospital or other
charitable institution unless registered (_ib._, s. 27).

No certificate required from any physician or surgeon or medical
practitioner is valid unless the signer be duly registered (_ib._, s.
28).

A person not registered or licensed, and not actually employed as
a physician or surgeon in Her Majesty’s naval or military service,
practising physic, surgery, or midwifery for hire, gain, or hope of
reward, forfeits twenty dollars for each day of such practice (_ib._,
s. 29).

The sum forfeited is recoverable with costs. The procedure in reference
to all penalties is regulated by Act of 1886, c. 82.

Persons liable as provided in secs. 29 and 30 are not entitled to or
subject to the provisions of any act for the relief of debtors (Act
1882, c. 30, s. 4).

On the trial of such cause, the burden of proof as to license or right
to practise is upon the defendant (Act 1881, c. 19, s. 31; Act 1886, c.
82, s. 3).

FRAUDULENT REGISTRATION.—Wilfully procuring or attempting to procure
registration by making or producing, or causing to be made or produced,
a false or fraudulent representation or declaration, or aiding or
assisting therein, is punishable with a forfeiture of not less than
$100 (Act 1881, c. 19, s. 33).

Wilfully or falsely pretending to be or using any name or description
implying registration is punishable with a forfeiture of from $50 to
$100 (_ib._, s. 34).

LIMITATIONS.—No prosecution can be commenced under the act after one
year from the date of the offence (Act 1886, c. 82, s. 4).

EXCEPTIONS.—The act does not prevent persons from giving the necessary
medical or surgical aid or attendance to any one in urgent need of
it, provided it be without gain, and the giving of it be not made a
business or way of gaining a livelihood; nor does it prevent any woman
from giving the necessary aid in cases of confinement as heretofore
accustomed (Act 1881, c. 19, s. 36).

EXAMINATION.—All persons who subsequent to the passage of the act
pass the examination prescribed by the council of physicians and
surgeons, or presenting approved credentials, certificates, or diplomas
equivalent to such examination, are entitled to register and receive a
license to practise (_ib._, s. 38).

PHYSICIANS IN ARMY OR NAVY.—A person while employed in actual service
in Her Majesty’s naval or military service as a physician or surgeon,
may practise physic, surgery, or midwifery with registry or license
(_ib._, s. 39).

NON-RESIDENTS.—Non-resident registered practitioners of medicine
residing in the State of Maine or in the Province of Quebec or Nova
Scotia near the boundary line of this province whose regular practice
extends into any town, parish, or county in New Brunswick may register
under the act (_ib._, s. 44).

No other non-resident practitioner of medicine is entitled to register
(Act 1884, c. 17, s. 1).

EXCEPTIONS.—The act does not extend to clairvoyant physicians
practising at the time of its passage in the province, nor to midwives
(Act 1881, c. 19, s. 45).

STUDENTS.—The act establishes a uniform standard of matriculation or
preliminary examinations (_ib._, Sched. B).

OATHS.—Any oath or affidavit required by the medical act may be taken
before any justice of the peace or person by law authorized to take any
oath or affidavit (Act 1882, c. 30, s. 6).

FEES.—To the registrar, for registration under secs. 12 and 13, $10
(Act 1881, c. 19, s. 12 and 13).

To the registrar, for the registration of an additional qualification,
such fee as the council may demand (Act 1881, c. 19, s. 23).

To the registrar, or his deputy, annual fee from each practitioner, to
be fixed by the council, not more than $2 nor less than $1 (Act 1882,
c. 30, s. 5).

Each registered medical practitioner must, if required by the council,
pay to the registrar, or a person deputed by him, an annual fee
determined by the council, not less than $1 nor more than $2, payable
January 1st each year, and recoverable as a debt with costs in the name
of the council (Act 1882, c. 30, s. 5).

If any practitioner omit to pay the registration fee before the
registrar causes the register to be printed in the _Royal Gazette_, the
registrar shall not cause the name of such practitioner to be printed,
and he shall thereupon cease to be deemed a registered practitioner;
but afterward, on paying such fee, he shall be entitled to all his
rights and privileges as a registered practitioner from the time of
payment (Act 1884, c. 17, s. 2).


NEWFOUNDLAND.

MEDICAL BOARD.—There is a board composed of seven regularly qualified
medical practitioners of not less than five years’ standing, appointed
as provided in the act, and known as the “Newfoundland Medical Board,”
whose duties relate, among other things, to the making and enforcing of
measures necessary for the regulation and the practice of medicine (Act
1893, c. 12, s. 2, 3, 19).

The board is authorized to appoint examiners and fix times of
examinations (_ib._, s. 5).

The secretary of the board is the registrar (_ib._, s. 7).

REGISTER, EVIDENCE.—It is the duty of the registrar on or before
January 1st in each year to cause to be published in the _Royal
Gazette_ of Newfoundland a list of the names of all persons appearing
on the register at that date, with their places of residence, titles,
diplomas, and qualifications as conferred by any college or body, with
the date (_ib._, s. 8).

Such register is called the Medical Register, and a copy thereof
is _prima facie_ evidence that the persons therein specified are
registered according to the act; and the absence of a name therefrom is
_prima facie_ evidence that such person is not so registered (_ib._, s.
9).

QUALIFICATION.—The members of the board form a body of medical
examiners of diplomas and degrees, whose certificate shall be the only
license permitting the practice of medicine, surgery, or midwifery,
except as hereinafter provided, provided the applicant for such license
shall previously have obtained a medical diploma from a recognized
college or university, or as hereinafter provided (_ib._, s. 10.)

Every person is entitled to have his name entered on the register
on satisfying the board that he holds a degree or diploma from some
regular university or school of medicine in good standing, and he shall
then receive from the board a license bearing its seal, on the payment
to the registrar of $5, and shall have his name entered on the register
(_ib._, s. 11).

No such licensed practitioner shall be entitled to practise in any year
without taking out from the board, before the 1st of January in every
year, a certificate of practice for which he shall pay $1 (_ib._, s.
12).

STUDENTS.—The act provides the requirements for entering on the study
of medicine, surgery, or midwifery in the colony (_ib._, s. 13, 14, 17).

DUTIES OF BOARD.—The board is required to examine all degrees and
other credentials produced or given in evidence under the act for
the purpose of enabling the owners to practise, and, if it be deemed
necessary, to oblige the owner to attest on oath or affidavit that he
is the person whose name is mentioned therein, and that he has become
possessed of the same by lawful means (_ib._, s. 16).

The board is required to cause every member of the profession
practising in Newfoundland to enter his name, age, place of residence,
date of license or diploma and where it was obtained, on the register
(_ib._, s. 18).

NEGLECT TO REGISTER.—A person entitled to be registered, who neglects
or omits to apply, is not entitled to any of the rights or privileges
conferred by the act so long as the neglect or omission continues
(_ib._, s. 25).

ADDITIONAL QUALIFICATION.—A person registered who obtains a higher
degree or diploma is entitled to have it inserted in the register in
addition to or in substitution for those previously registered (_ib._,
s. 26).

RIGHTS OF REGISTERED PERSONS.—A person properly registered under the
act is entitled to practise medicine, surgery, and midwifery in any
part of the colony, and to demand and recover reasonable charges for
professional aid or advice with the cost of medicine or other medical
and surgical appliance supplied by him (_ib._, s. 27).

UNREGISTERED PERSONS.—No person whose name is not registered under the
act is entitled to recover any fees for any medical or surgical advice,
or for any services whatsoever rendered in the capacity of a medical
man, nor to recover the payment of charges for any medicine or medical
or surgical appliance which may have been both prescribed and supplied
by him. This clause is not intended to interfere with the practice of
midwifery by competent females as hereinafter provided (_ib._, s. 28).

OFFENCES AND PENALTIES.—Except as hereinafter provided, if a person
not registered or licensed under the act practises medicine, surgery,
or midwifery for hire, gain, help [_sic_] or reward, or wilfully and
falsely pretends to be a physician, doctor of medicine, surgeon, or
general practitioner, or takes or uses any name, title, addition [or]
description, implying or calculating [_sic_] to deceive or lead the
public to infer that he is registered under this act, or who proposes
by public advertisement, card, circular, or otherwise, to practise
medicine, surgery, or midwifery, or give advice therein, or in anywise
lead people to infer that he is qualified to practise medicine,
surgery, or midwifery, he shall forfeit $20 for each day that he so
practises or leads people to infer that he is a practitioner, or shall
suffer imprisonment not exceeding twelve months (_ib._, s. 29).

Persons violating the above regulations are subject to the penalties of
the act, and in all cases the burden of proof as to qualification is
upon the defendant or practitioner (_ib._, s. 30).

EXPULSION OF MEMBER.—The Newfoundland Medical Board may try and expel
any member of the profession for acts of malpractice, misconduct, or
immoral habits, provided five-sevenths of the whole number record their
signatures to such a measure (_ib._, s. 32).

EXCEPTIONS.—The act does not prevent private persons from giving the
necessary medical or surgical aid in times of urgent need, provided
such aid or attention is not given for gain or hire, nor the giving of
it made a business or a way of gaining a livelihood (_ib._, s. 34).

Every person residing in the colony and who shall have practised
medicine, surgery, and midwifery for five years consecutively in one
locality previous to the passage of the act, on the proof of the same,
shall have his name registered and receive a license to practise under
the act; provided, the board may grant a license to any person who may
have practised for a shorter period, on being satisfied by examination,
or inquiry, that such person is reasonably competent and fit; and
further provided, that the board may, after examination and inquiry,
license persons with a reasonable amount of competence to practise
in specified localities, in which no qualified practitioners reside
(_ib._, s. 37).

Any person while employed in actual service in any naval or military
service as physician or surgeon may practise medicine, surgery, and
midwifery after having been registered (_ib._, s. 38).

DEFINITION.—The words “legally qualified medical practitioner” or
“duly qualified medical practitioner,” or any other words importing a
person recognized by law as a medical practitioner or a member of the
medical profession, when used in any act of the legislature or legal or
public document, mean a person registered under this chapter, unless as
otherwise provided (_ib._, s. 39).

MEDICAL APPOINTMENTS.—No person shall be appointed as a medical
officer, physician, or surgeon in any branch of the public service or
any hospital or other charitable institution unless he be registered
under the provisions of this chapter (_ib._, s. 40).

THEORIES OF MEDICINE OR SURGERY.—No person otherwise fully qualified
shall be refused registration, or a license to practise, on account of
his adopting or refusing to adopt the practice of any particular theory
of medicine or surgery. In case of such refusal by the board, the party
aggrieved may appeal to the governor in council, who, on due cause
shown, shall issue an order to the board to register the name of such
person and grant him a license (_ib._, s. 41).

MIDWIVES.—The act does not prevent competent females from practising
midwifery (_ib._, s. 42).

FEES.—To the registrar, for license, $5 (_ib._, s. 11).

To the board, each year, for a certificate of practice, $1 (_ib._, s.
12).


NORTHWEST TERRITORIES.

COLLEGE OF PHYSICIANS AND SURGEONS.—The members of the medical
profession are a body corporate under the name of “The College of
Physicians and Surgeons of the Northwest Territories” (Ord. 5 of 1888,
s. 2).

Every person registered according to Ordinance 11 of 1885 is a member
of the said college and shall be held to be registered under this
ordinance from the date of its passage (_ib._, s. 3, as amended Ord. 9
of 1891-92).

Every person registered under this law is a member of the college
(_ib._, s. 4).

COUNCIL.—There is a council of said college elected by the members
from the members registered in pursuance of this ordinance (_ib._, s.
5, 6, 7).

The council appoints among other officers a registrar (_ib._, s. 26).

REGISTER, QUALIFICATION.—Persons registered under Ordinance 11 of 1885
are entitled to register under this ordinance (_ib._, s. 31).

The council is required to cause the registrar to keep a register of
the names of all persons who have complied with this ordinance, and
the rules and regulations of the council respecting the qualifications
required from practitioners of medicine or surgery. Only those persons
whose names are inscribed in the register are deemed qualified and
licensed to practise medicine or surgery, except as hereinafter
provided (_ib._, s. 32).

The registrar is required to keep his register correct and to make the
necessary alterations in the addresses or qualifications of persons
registered (_ib._, s. 33).

The council is required to admit on the register:

(_a_) Any person possessing a diploma from any college in Great Britain
and Ireland (having power to grant such diploma) entitling him to
practise medicine and surgery, and who shall produce such diploma and
furnish satisfactory evidence of identification;

(_b_) any member of the College of Physicians and Surgeons of the
Provinces of Manitoba, Ontario and Quebec upon producing satisfactory
evidence of the same and of identification;

(_c_) any person who shall produce from any college or school of
medicine and surgery in the Dominion of Canada requiring a four-years’
course of study _and_ (_sic_) a diploma of qualification; provided he
furnish to the council satisfactory evidence of identification, and
pass if deemed necessary, before the members thereof, or such examiners
as may be appointed for the purpose, a satisfactory examination
touching his fitness and capacity to practise as a physician and
surgeon, upon payment to the registrar of fifty dollars (_ib._, s. 34,
as substituted by Ord. 14, 1890, amended by Ord. 9, 1891-92).

POWERS OF COUNCIL.—The members of the council are required to make
orders, regulations, or by-laws for the regulation of the register and
the guidance of examiners, and may prescribe subjects and modes of
examination, and may make all regulations in respect of examinations,
not contrary to the ordinance, that they may deem expedient and
necessary (_ib._, s. 36).

The council may by by-law delegate to the registrar power to admit to
practice and to register any person having the necessary qualifications
entitling him to be registered by the council (Ord. 24, 1892, s. 4).

The council may direct the name of any person improperly registered
to be erased from the register and such name shall be erased by the
registrar (Ord. 24, 1892, s. 5).

FORFEITURE OF RIGHTS.—If a medical practitioner be convicted of any
felony or misdemeanor or after due inquiry be judged by the council to
have been guilty of infamous conduct in any professional respect, the
council may, if it sees fit, direct the registrar to erase the name of
such practitioner from the register, and the name shall be erased (Ord.
5, 1888, s. 37, as substituted by Ord. 24, 1892, s. 1).

RIGHTS OF REGISTERED PERSONS.—Every person registered under the
ordinance is entitled to practise medicine and surgery, including
midwifery, or any one of them, as the case may be, and to demand and
recover with costs his reasonable charges for professional aid, advice,
and visits, and the cost of medical or surgical appliances rendered or
supplied by him to his patients (_ib._, s. 38).

LIMITATION.—A period of one year after the term of professional
service is established as a limitation to actions for negligence or
malpractice against members of the college (_ib._, s. 39).

REGISTER, EVIDENCE.—The registrar, under the direction of the council,
is required to publish a register of the names and residences and
the medical titles, diplomas, and qualifications conferred by any
college or body, of all persons appearing on the register on the day
of publication. The register is called “Northwest Territories’ Medical
Register,” and a copy for the time being, purporting to be so printed
and published, is _prima facie_ evidence that the persons therein
specified are registered according to the act. The absence of a name
from such copy is _prima facie_ evidence that such person is not so
registered.

In case a person’s name does not appear on such copy, a certified copy
under the hand of the registrar of the entry of the name of such person
on the register is evidence that such person is registered (_ib._, s.
40).

NEGLECT TO REGISTER.—A person neglecting to register is not entitled
to the rights or privileges conferred and is liable to all penalties
against unqualified or unregistered practitioners (_ib._, s. 4).

OFFENCES AND PENALTIES.—To practise or profess to practise without
registration, for hire or reward, is punishable with a penalty of $100
(_ib._, s. 42).

To wilfully or falsely pretend to be a physician, doctor of medicine,
surgeon, or general practitioner, or assume any title or description
not actually possessed and to which the person is not legally entitled
under this ordinance, is punishable with a penalty of from $10 to $50
(_ib._, s. 43, as amended by Ord. 24, 1892, s. 2).

To take or use a name or description implying or calculated to lead
people to infer registration or recognition by law as a physician,
surgeon, or licentiate in medicine or surgery is punishable with a
penalty of from $25 to $100 (_ib._, s. 44).

UNREGISTERED PERSONS.—No person is entitled to recover for any medical
or surgical advice or attendance or the performance of any operation
or medicine which he may have prescribed (_ib._, s. 45); nor to be
appointed as medical officer, physician, or surgeon in any branch of
the public service or in any hospital or other charitable institution
not supported wholly by voluntary contributions, unless registered
(_ib._, s. 46).

No certificate required from a physician or surgeon or medical
practitioner is valid unless the signer is registered (_ib._, s. 47).

COSTS.—In prosecutions, payment of costs may be awarded in addition to
the penalty, and in default of payment the offender may be committed to
the common jail for not more than one month (_ib._, s. 48).

BURDEN OF PROOF.—In prosecutions, the burden of proof as to
registration is upon the person charged (_ib._, s. 49).

PROOF.—The production of a printed or other copy of the register,
certified under the hand of the registrar, for the time being is
sufficient evidence of all persons [registered]; a certificate on
such copy purporting to be signed by any person in the capacity of
registrar of the council under this ordinance is _prima facie_ evidence
that he is registered without proof of his signature or of his being in
fact registrar (_ib._, s. 50).

LIMITATION OF PROSECUTIONS.—Prosecutions must be commenced within six
months from the date of the offence (_ib._, s. 51).

STAY.—The council may stay proceedings in prosecutions where deemed
expedient (_ib._, s. 52).

PROSECUTOR.—Any person may be prosecutor or complainant (_ib._, s. 53).

DEFINITION.—“Legally qualified medical practitioner” or “duly
qualified medical practitioner,” or any other words implying legal
recognition as a medical practitioner or member of the medical
profession, when used in any law or ordinance, mean a person registered
under this ordinance (_ib._, s. 55).

HOMŒOPATHISTS.—Homœopathic physicians may be registered under this
ordinance on complying with the terms of sec. 34 (_ib._, s. 58).

FEES.—To the council from each member annually as the council may
determine, not more than $2 and not less than $1 (_ib._, s. 35).

To the registrar, for registration, $50 (_ib._, s. 56, as substituted
by Ord. 24, 1892, s. 3).


NOVA SCOTIA.

MEDICAL BOARD.—There is a provincial medical board consisting of
thirteen regular qualified medical practitioners of not less than seven
years’ standing, seven nominated and appointed by the governor in
council, and six by the Nova Scotia Medical Society (R. S., 5th ser.,
c. 24, s. 1).

The board appoints a secretary who is the registrar of the board
(_ib._, s. 3, 4).

REGISTER, EVIDENCE.—The registrar is required before the 1st of August
each year to cause to be printed and published in the _Royal Gazette_
of the province, and in such other manner as the board shall appoint,
a correct register of the names and residences and medical titles,
diplomas, and qualifications conferred by any college or body, with the
dates thereof of all persons appearing on the register as existing on
June 30th. Such register is called “The Medical Register,” and a copy
thereof for the time being, purporting to be so printed and published,
is _prima facie_ evidence that the persons specified are registered
according to this chapter. The absence of a name from such copy is
_prima facie_ evidence that such person is not so registered. In the
case of a person whose name does not appear in such copy, a certified
copy, under the hand of the registrar, of the entry of his name on
the register is evidence that such person is registered under the
provisions of this chapter (_ib._, s. 5).

STUDENTS.—No person can begin or enter on the study of physic,
surgery, or midwifery, for the purpose of qualifying himself to
practise in the province, unless he shall have obtained from the
provincial medical board a certificate that he has satisfactorily
passed a matriculation examination in the subjects specified in the
chapter (_ib._, s. 6).

The chapter prescribes the prerequisites to admission to preliminary
examinations (_ib._, s. 7, 12).

QUALIFICATION.—Subject to the exceptions hereinafter, no person
can lawfully practise physic, surgery, or midwifery unless his name
be registered and unless he shall have received from the provincial
medical board a license to practise (_ib._, s. 8).

No person is entitled to be registered or to receive a license
to practise unless he satisfy the board that he has passed the
matriculation or preliminary examination; that after passing such
examination he has followed his studies during a period not less than
four years (one of which may be under the direction of one or more
general practitioners duly licensed); that during such four years he
has attended at some university, college, or incorporated school of
medicine in good standing, courses of lectures amounting together to
not less than twelve months on general anatomy, on practical anatomy,
on surgery, on the practice of medicine, on midwifery, on chemistry,
on materia medica and pharmacy, and on the institutes of medicine or
physiology, and one three-months’ course of medical jurisprudence;
that he has attended the general practice of a hospital in which
are not less than fifty beds under the charge of not less than two
physicians or surgeons, for a period of not less than one year or two
periods of not less than six months each; that he has also attended
two three-months’ courses or one six-months’ course of clinical
medicine, and the same of clinical surgery; that he has, after an
examination in the subjects of the course, obtained a degree or diploma
from such university, college, or incorporated medical school, or,
for want of such degree or diploma, that he has satisfactorily passed
an examination in the various branches hereinbefore specified before
examiners to be appointed by the provincial medical board; that he
is not less than twenty-one years of age; and that he has paid the
registrar twenty dollars.

The provincial medical board has power, subject to the approval of
the governor in council, to make such alterations in the foregoing
curriculum as may from time to time be required (_ib._, s. 9).

The last preceding section does not apply to any person in actual
practice duly registered under chap. 56 of Revised Statutes, 3d series;
such persons are entitled to be registered and receive a license to
practise under this chapter without fee. Notwithstanding such section,
any person on producing to the said board conclusive evidence that
he has passed a matriculation or preliminary examination such as is
required for persons beginning their medical studies in Nova Scotia;
that he has, before graduating or taking a diploma, studied for at
least four years in the manner provided in sec. 9 or pursued what
the board deem an equivalent course of study, and has passed a final
examination in the subjects of such course; or, for the want of any of
such requirements, shall have fulfilled such conditions as the board
may determine and shall pay a fee of twenty dollars, shall be entitled
to be registered and to receive a license to practise (_ib._, s. 10).

POWERS OF BOARD.—The said board among other powers has the power
to examine all degrees, diplomas, licenses, and other credentials
presented or given in evidence for the purpose of entitling the owner
to practise in Nova Scotia; and to oblige the owner to attest on oath,
or by affidavit, that he is the person whose name is mentioned therein,
and that he became possessed thereof honestly; to cause every member
of the profession practising in Nova Scotia to enregister his name,
age, place of residence, place of nativity, date of license or diploma,
and the place where he obtained it, in the register of the board; to
appoint medical examiners to hold final examinations, such examiners
to be regular qualified practitioners of not less than five years’
professional standing, and three years’ residence in the province
(_ib._, s. 12).

REGISTER.—The registrar is required to keep his register correct, and
to erase the names of all registered persons who shall have died, left
the province without any intention of returning, or ceased to practise
for five years, and to make from time to time the necessary alterations
in the addresses or qualifications of persons registered. A name erased
is required to be restored by the order of the board upon sufficient
cause duly shown (_ib._, s. 15).

NEGLECT TO REGISTER.—Persons entitled to register and neglecting
or omitting to register are not entitled to any of the rights or
privileges conferred so long as the neglect or omission shall continue
(_ib._, s. 16).

THEORIES OF MEDICINE OR SURGERY.—No person shall be refused
registration or a license on account of the adoption or the refusal to
adopt the practice of any particular theory of medicine or surgery. In
case of such refusal the party aggrieved has the right to appeal to the
governor in council, who, on due cause shown, is required to issue an
order to the board to register the name of such person and to grant him
a license (_ib._, s. 17).

POWERS OF REGISTRAR.—No qualification is entered unless the registrar
is satisfied by proper evidence that the person claiming is entitled to
it, and any appeal from the decision of the registrar may be decided
by the board, and any entry proving to the satisfaction of the board
to have been fraudulently or incorrectly made may be erased from the
register by order in writing of the board (_ib._, s. 18).

FORFEITURE OF RIGHTS.—A medical practitioner convicted of felony or,
after due inquiry, judged by the board to have been guilty of infamous
conduct in any professional respect, thereby forfeits his right to
registration, and if registered his name shall, by the direction of the
board, be erased from the register (_ib._, s. 19).

ADDITIONAL QUALIFICATIONS.—A registered person may have a higher
degree or an additional qualification obtained by him, inserted in
the register in substitution for or in addition to a qualification
previously registered, on the payment of such fee as the board may
appoint (_ib._, s. 20).

RIGHTS OF REGISTERED PERSONS.—Every registered person is entitled
according to his qualifications to practise medicine, surgery, or
midwifery, or either or any of them as the case may be, and to demand
and receive reasonable charges for professional aid, advice, and visits
and the cost of any medicine or any medical or surgical appliances
rendered or supplied by him to his patients (_ib._, s. 21).

No person is entitled to recover such charge unless he shall prove
on the trial that he is registered under this chapter. This does not
interfere with the sale by qualified druggists or chemists of articles
properly belonging to their business (_ib._, s. 22).

DEFINITION.—The words “legally qualified medical practitioner” or
“duly qualified medical practitioner,” or any other words importing a
person recognized by law as a medical practitioner or a member of the
medical profession, when used in any act of the legislature or legal or
public document mean a person registered under this chapter (_ib._, s.
23).

UNREGISTERED PERSONS.—No person shall be appointed as a medical
officer, physician, or surgeon, in any branch of the public service,
or in any hospital or other charitable institution, unless he be
registered under the provisions of this chapter (_ib._, s. 24).

No certificate required from any physician or surgeon or medical
practitioner is valid unless the signer be registered (_ib._, s. 25).

OFFENCES AND PENALTIES.—For a person without registration or license
to practise physic, surgery, or midwifery for hire, gain, or hope of
reward, or wilfully or falsely pretend to be a physician, doctor of
medicine, surgeon, or general practitioner, or to take or use any name
or description implying or calculated to lead people to infer that he
is registered, or to profess by public advertisement, card, circular,
sign, or otherwise to practise physic, surgery, or midwifery, or to
give advice therein or in anywise to lead people to infer that he is
qualified to practise physic, surgery, or midwifery, is punishable with
a forfeiture of $20 for each day that he so practises or leads people
to infer that he is practising (_ib._, s. 26).

On trial of such cause the burden of proof as to the license or right
of the defendant to practise physic, surgery, or midwifery is on the
defendant (_ib._, s. 28).

If a person wilfully procures or attempts to procure registration by
making or producing, or causing to be made or produced, a false or
fraudulent representation or declaration, he, and all persons knowingly
aiding or assisting therein, are each punishable with a forfeiture of
not less than $100 (_ib._, s. 30).

To wilfully and falsely pretend to be or take or use any name or
description implying registration, is punishable with a forfeiture not
exceeding $100 (_ib._, s. 31).

Suits under this chapter are not to be begun after one year from the
date of the offence or cause of action (_ib._, s. 32).

EXCEPTIONS.—This chapter does not prevent a competent female from
practising midwifery in Nova Scotia, except that she must satisfy the
board of her competency, and obtain a certificate from the registrar
before she can lawfully practise in the city of Halifax (_ib._, s. 33).

Nothing in the chapter prevents any person from giving necessary
medical or surgical aid or attendance to any one in urgent need of it,
provided such aid or attendance is not given for hire or gain, nor the
giving of it made a business or way of gaining a livelihood (_ib._, s.
34).

Every person residing in the province and who shall have practised
therein prior to January 1st, 1850, is entitled on proof thereof to
have his name registered and receive a license to practise under this
chapter (_ib._, s. 36).

A person while employed in active service in Her Majesty’s naval
or military service as a physician or surgeon may practise physic,
surgery, or midwifery with (_sic_) registration or license (_ib._, s.
37).

Schedule B of the chapter prescribes the subjects for a matriculation
or preliminary examination of those commencing the study of medicine.

FEES.—To the registrar, for registration under secs. 9 and 10, $20.

To the registrar, for a preliminary examination under sec. 7, $10.

For registering additional qualifications, such fee as the board may
appoint (_ib._, s. 20).


ONTARIO.

COLLEGE OF PHYSICIANS, ETC.—There is a corporation styled “The College
of Physicians and Surgeons of Ontario” (Rev, St., 1887, c. 148, s. 2).

All persons registered according to the provincial acts 29 Victoria, c.
34, and 37 Victoria, c. 45, and amendatory acts, are members of said
corporation (_ib._, s. 3); as well as all persons registered under this
act (_ib._, s. 4).

COUNCIL.—There is a council of said college composed of
representatives chosen from every university, college, or body in the
province authorized to grant degrees in medicine and surgery, and which
establish and maintain to the satisfaction of the College of Physicians
and Surgeons of Ontario a medical faculty in connection therewith,
with five members elected by the registered licensed practitioners in
homœopathy, and twelve members elected from among and by the other
registered members of the profession (_ib._, s. 6).

No teacher, professor, or lecturer of any such college or body shall
hold a seat in said council except as a representative of the college
or body to which he belongs (_ib._, s. 6, subd. 2, as amended Act 1893,
c. 27, s. 2).

All members of the council representing the colleges of bodies
aforesaid must be practitioners duly registered (_ib._, s. 6, subd. 3,
as amended Act 1893, c. 27, s. 2).

All duly registered practitioners are entitled to vote at any election
for members of the council (_ib._, s. 8).

Any member of the college may have his name transferred from one class
of voters to any other on presenting to the registrar a certificate
duly signed by the member or members of the board of examiners to
examine candidates on subjects specified as peculiar to each school of
medicine, testifying that the member so applying has shown a sufficient
knowledge of the system of medicine he desires to connect himself with,
to entitle him to be admitted to the class he desires, and being so
admitted he is entitled to vote in that class only (_ib._, s. 9 [1]).

No member is entitled to return to the class from which he has been
transferred without the sanction of the council (_ib._, s. 9 [2]).

The council appoints officers including a registrar (_ib._, s. 13).

The council must appoint an executive committee to take cognizance of
and action upon all matters delegated to it by the council or which may
require immediate attention or interference between the adjournment of
the council and its next meeting, and all such acts shall be valid only
till the next ensuing meeting of the council (_ib._, s. 4).

DIVISION ASSOCIATION.—In each territorial division established by
the act there may be established a Division Association, of which
every member of the said college residing within the said territorial
division shall be a member (_ib._, s. 15).

PROFESSIONAL FEES.—The division association may submit to the council
a tariff of professional fees suitable to their division, and on the
said tariff receiving the approval of the council, signed by the seal
of the college and the signature of the president, such tariff shall be
held to be a scale of reasonable charges for the division or section
of a division where the members of the association making it reside
(_ib._, s. 16).

REGISTRATION.—In a register kept by the registrar the council
is required to cause to be entered the name of every person duly
registered and all persons who have complied with the act and the rules
and regulations made by the council respecting the qualifications of
practitioners of medicine, surgery, and midwifery; and those persons
only whose names are inscribed in the register shall be deemed to be
qualified and licensed to practise medicine, surgery, or midwifery,
except as hereinafter provided (_ib._, s. 21).

The registrar is required to keep his register correct and to make the
necessary alterations in the addresses or qualifications of persons
registered. And he may write to any registered person at his address
on the register, to inquire whether he has ceased to practise or
has changed his residence, and if no answer be returned within six
months, may erase the name of such person; the name shall be restored
on compliance with the other provisions of the act (_ib._, s. 22, as
amended Act 1891, c. 26, s. 9).

It is optional for the council to admit to registration all such
persons as are duly registered in the medical register of Great
Britain, or otherwise authorized to practise medicine, surgery, and
midwifery in the United Kingdom of Great Britain and Ireland, upon such
terms as the council may deem expedient (_ib._, s. 23 [1]).

Any person actually practising medicine, surgery, or midwifery, or any
of them, in Ontario prior to January 1st, 1850, and who has attended
one course of lectures at any recognized medical school, on such proof
as the council may require, is entitled to register (_ib._, s. 23 [2]).

Any person actually practising medicine, surgery, or midwifery
according to the principles of homœopathy before January 1st, 1850, and
for the six years preceding March 24th, 1874, in Ontario, may in the
discretion of the representatives of the homœopathic system of medicine
be registered (_ib._, s. 23 [3]).

Any person who possesses any of the qualifications described in
Schedule B, dated prior to July 23d, 1870, on the payment of the fee,
is entitled to register on producing to the registrar the document
conferring or evidencing his qualification or qualifications, or on
transmitting by post to the registrar information of his name and
address and evidence of the qualification or qualifications in respect
whereof he wishes to be registered and of the time or times at which
the same was or were attained. No one registered under the acts
mentioned in sec. 3 is liable to pay for registration (_ib._, s. 24).

Every person wishing to be registered, and not possessed before July
23d, 1870, of one of the qualifications in Schedule B, must present
himself for examination as to his knowledge and skill for the efficient
practice of his profession before the board of examiners mentioned in
sec. 28, and upon passing the examination required and proving to the
satisfaction of the board of examiners that he has complied with the
rules and regulations of the council, and on payment of such fees as
the council may establish, he shall be entitled to register and in
virtue of his registration to practise medicine, surgery, and midwifery
(_ib._, s. 25).

When it appears that there has been established a central examining
board similar to that constituted by this act, or an institution duly
recognized by the legislature of any of the provinces of the Dominion
of Canada as the sole examining body for the purpose of granting
certificates of qualification, and wherein the curriculum is equal to
that established in Ontario, the holder of such certificate shall, upon
due proof, be entitled to registration by the council of Ontario if the
same privilege is accorded by such examining board or institution to
those holding certificates of Ontario (_ib._, s. 26).

BOARD OF EXAMINERS.—The council is required at its annual meeting to
elect a board of examiners whose duty it is to examine at least once
in each year all candidates for registration in accordance with the
by-laws, rules, and regulations of the council; such examinations are
to be held at Toronto or Kingston at such times and in such manner as
the council may by by-laws direct (_ib._, s. 28).

The board of examiners is composed of one member from each existing
teaching body enumerated in sec. 6 and one from every other school
of medicine organized in connection with any university or college
empowered by law to grant medical or surgical diplomas and not less
than six members chosen from the members of the College of Physicians
and Surgeons of Ontario unconnected with any such teaching body (_ib._,
s. 29, as amended Act 1893, c. 27, s. 5).

HOMŒPATHISTS.—Every candidate who, at the time of the examination,
signifies his wish to be registered as a homœopathic practitioner
shall not be required to pass an examination in materia medica or
therapeutics, or the theory or practice of physic or surgery or
midwifery except the operative parts thereof, before any examiners
other than those approved of by the representatives in the council of
the homœopathic system (_ib._, s. 30).

DUTIES OF COUNCIL.—The council is required to make orders,
regulations, or by-laws for regulating the register and fees for
registration and for the guidance of the board of examiners, and may
prescribe the subjects and modes of examination and the time and place
of holding the same, and may make all such rules and regulations
for examination not contrary to the act as they deem expedient and
necessary (_ib._, s. 31).

ADDITIONAL QUALIFICATION.—Every person registered who obtains a higher
degree or other qualification is, on the payment of the fee, entitled
to have it inscribed in the register in substitution for or in addition
to the qualifications previously registered (_ib._, s. 32).

POWERS OF REGISTRAR.—No qualification is to be entered on the
register unless the registrar be satisfied by proper evidence that
the person claiming it is entitled to it. Appeal from the decision of
the registrar may be decided by the council; any entry proved to the
satisfaction of the council to have been fraudulently or incorrectly
made may be erased from the register by order of the council in writing
(_ib._, s. 33 [1]).

If the registrar be dissatisfied with the evidence adduced by a person
claiming to be registered, he has power, subject to appeal to the
council, to refuse registration until such evidence is furnished, duly
attested by oath or affidavit before a judge of the county court of any
county (_ib._, s. 33 [2]).

ERASURE AND RESTORATION OF NAME.—A practitioner is liable to have his
name erased from the register where he has been convicted before or
after registration of an offence which, if committed in Canada, would
be a felony or misdemeanor, or where he has been guilty of any infamous
or disgraceful conduct in a professional respect (_ib._, s. 34 [1]).

The council may, and on the application of any four registered medical
practitioners must, cause inquiry to be made into the case of a person
alleged to be liable to have his name erased under this section, and on
proof of such conviction or conduct shall cause his name to be erased
from the register. The name of a person shall not be erased on account
of his adopting or refraining from the practice of any particular
theory of medicine or surgery; nor on account of a conviction for a
political offence out of Her Majesty’s dominions, nor of conviction
for an offence which ought not either from its trivial nature or its
circumstances to disqualify a person from practising medicine or
surgery (_ib._, s. 34 [2]).

The council may order to be paid out of any funds at their disposal
such costs as they may deem just to any person against whom any
complaint has been made, which, when finally determined, is found to
have been frivolous and vexatious (_ib._, s. 34 [3]).

When the council direct the erasure of any name or entry, it shall
not be again entered except by direction of the council or any of the
divisions of the high court of justice (_ib._, s. 35 [1], as amended
Act 1891, c. 26, s. 3).

If the council think fit, they may direct the registrar to restore
any name or entry erased, without fee, or on payment of such fee not
exceeding the regular fee as the council may fix (_ib._, s. 35 [2]).

The council is required to ascertain facts, in the exercise of its
powers of erasing and restoring, by a committee of their own body of
not more than five, and a written report of the committee may be acted
on by the council (_ib._, s. 36 [1], as amended Act 1891, c. 26, s. 4).

At least two weeks’ notice of the first meeting of the committee for
ascertaining the facts of any case must be served on a person whose
conduct is subject to inquiry, and such notice must embody a copy of
the charges or a statement of the subject-matter of the inquiry, and
specify the time and place of meeting. The testimony is under oath, and
subject to cross-examination and the full right to call evidence in
defence and reply. In the event of the non-attendance of such person
the committee, on the proof of personal service of the notice, may
proceed with the inquiry in his absence and without further notice
(_ib._, s. 36 [5]).

No action can be brought against the council or committee for anything
done _bona fide_ under this act notwithstanding want of form in the
proceedings. Any person whose name has been ordered erased may appeal
from the decision of the council to any division of the high court
at any time within six months from the date of the order of erasure,
and the judge may make such order as to restoration, confirmation, or
further inquiries by the committee or council and as to costs, as to
him shall seem right (_ib._, s. 37, as amended Act 1891, c. 26, s. 5).

The appeal may be by a summons served on the registrar to show cause,
and is founded upon a copy of the proceedings before the committee, the
evidence taken, the committee’s report, and the order of the council
certified by the registrar. The registrar is required to furnish to any
person desiring to appeal a certified copy of all proceedings, reports,
orders, and papers on which the committee acted, on payment of five
cents a folio (_ib._, s. 38, as amended Act 1891, c. 26, s. 6).

The Act of 1891, c. 26, s. 7, provides for procuring the attendance of
witnesses before the committee, and for payment of costs by the person
whose name has been directed to be erased.

RIGHTS OF REGISTERED PERSONS.—Every person registered is entitled
according to his qualifications to practise medicine, surgery, or
midwifery, or any of them, as the case may be, and to demand and
recover with full costs reasonable charges for professional aid,
advice, and visits and the cost of any medicine or other medical or
surgical appliances rendered or supplied by him to his patient (_ib._,
s. 39).

LIMITATIONS.—One year after the termination of professional services
is established as a period of limitations to an action for negligence
or malpractice by reason thereof against duly registered members of
said college (_ib._, s. 40).

EVIDENCE.—The register is required to be printed and published, and a
copy thereof purporting to be so printed and published is _prima facie_
evidence that the persons specified are registered; and, subject to the
provisions of subsection 2 of this section, the absence of the name of
any person from such copy shall be _prima facie_ evidence that such
person is not registered (_ib._, s. 41 [1]).

In case of the name of a person not appearing in such copy, a certified
copy, under the hand of the registrar, of the entry of the name on the
register is evidence that such person is registered (_ib._, s. 41 [2]).

ANNUAL CERTIFICATE OF REGISTRATION.—Every registered medical
practitioner is required to obtain from the registrar annually, before
December 31st, a certificate under seal of the college that he is a
duly registered medical practitioner (Act 1891, c. 26, s. 8).

On payment of all fees and dues payable by such practitioner to the
college, the registrar is required to write his name and the date on
the margin of the certificate, and the certificate is deemed to be
issued only from such date; any fees properly charged during the time
in which a name was erased from the register are legally recoverable on
production of the certificate of registration at time of suit (_ib._).

No certificate is issued to any practitioner indebted to the college,
nor until the annual fee for the certificate prescribed by the statute
and the by-laws of the college is paid (_ib._).

If a practitioner omits to take out such certificate, he shall not be
entitled thereto until he pays the certificate fee, and any other fees
or dues which he owes the college (_ib._).

After twelve months’ default in taking out such certificate, and two
months’ notice of default by registered letter to the registered
address of the defaulter, if payment is not made, the registrar is
required to erase his name and the provisions as to unregistered
practitioners forthwith apply (_ib._).

Such practitioner may, unless otherwise disqualified, obtain
re-registration and re-instatement to full privileges by applying
to the registrar and paying up the fees and dues and taking out his
certificate (_ib._).

NEGLECT TO REGISTER.—Those entitled to register and neglecting so
to do are not entitled to any rights or privileges conferred by
registration, and are liable to all the penalties against unqualified
or unregistered practitioners (Rev. St., 1887, c. 148, s. 42).

FRAUDULENT REGISTRATION.—If a person procures registration by means
of false or fraudulent representations it is lawful for the registrar,
on a receipt of sufficient evidence of such falsity or fraud, to
represent the matter to the council, and on the written order of the
president, attested by the seal of the college, to erase his name from
the register and publish the fact and cause of erasure in the Ontario
_Gazette_; and after such notice such person ceases to be a member of
said college and to enjoy the privileges conferred by registration
without the express sanction of the council (_ib._, s. 44 [1]).

OFFENCES AND PENALTIES.—Wilfully procuring or attempting to procure
registration by false or fraudulent representations is punishable with
a penalty not exceeding $100. Knowingly aiding and assisting therein is
punishable with a penalty of from $20 to $50 for each offence (_ib._,
s. 44 [2]).

Practising without registration for hire, gain, or hope of reward is
punishable with a penalty of from $25 to $100 (_ib._, s. 45).

A person wilfully or falsely pretending to be a physician, doctor of
medicine, surgeon or general practitioner, or assuming any title,
addition, or description other than that he actually possesses and is
legally entitled to, is punishable with a penalty of from $10 to $50
(_ib._, s. 46).

A person taking or using a name, title, addition, or description
implying or calculated to lead people to infer that he is recognized by
law as a physician, surgeon, accoucheur, or licentiate in medicine,
surgery, or midwifery is punishable by a penalty of from $25 to $100
(_ib._, s. 47).

UNREGISTERED PERSONS.—No person is entitled to recover a charge for
medical or surgical advice or attendance or the performance of any
operation or any medicine prescribed or supplied unless he produces to
the court a certificate that he is registered; but this section does
not extend to the sale of drugs or medicines by a licensed chemist or
druggist (_ib._, s. 48, as amended Act 1891, c. 26, s. 2).

No person shall be appointed as a medical officer, physician, or
surgeon in any branch of the public service, or in any hospital
or other charitable institution not supported wholly by voluntary
contribution, unless he be registered (_ib._, s. 49).

No certificate required from any physician, surgeon, or medical
practitioner is valid unless the signer be registered (_ib._, s. 50).

COSTS.—The justice of the peace having jurisdiction of a prosecution
may award payment of costs in addition to the penalty, and in default
of payment may commit to the common jail for a period not exceeding one
month unless the penalty and costs are sooner paid (_ib._, s. 51).

APPEAL.—Any person convicted who gives notice of appeal must give
satisfactory security for the amount of the penalty and the costs of
conviction and appeal (_ib._, s. 52).

PROOF.—In any trial under the act, the burden of proof as to
registration is on the person charged (_ib._, s. 53).

Where proof of registration is required, the production of a printed or
other copy of the register certified under the hand of the registrar
for the time being is sufficient evidence of all persons who are
registered practitioners, and any certificate upon such copy purporting
to be signed by any person in his capacity of registrar is _prima
facie_ evidence that such person is registrar without proof of his
signature or of his being registrar (_ib._, s. 54).

LIMITATIONS OF PROSECUTIONS.—Prosecutions are limited to commence
within one year from the date of the offence (_ib._, s. 55)

STAY.—The council may, by order signed by its president having the
seal of the college appended, stay proceedings in any prosecution when
deemed expedient (_ib._, s. 56).

PROSECUTOR.—Any person may be prosecutor or complainant (_ib._, s. 57
[2]).

QUALIFICATION.—Schedule B referred to in the act is as follows:

1. A license to practise physic, surgery, and midwifery, or either,
within Upper Canada under the acts of Upper Canada, 59 G., III., c. 13,
and 8 G., IV., c. 3, respectively.

2. A license or diploma granted under 2 Vict., c. 38, or under the
Consolidated Statutes for Upper Canada, c. 40, or any act amending the
same.

3. A license or authorization to practise physic, surgery, and
midwifery, or either, within Lower Canada, whether granted under
ordinance 28 G., III., c. 8, or act 10 and 11 Vict., c. 26, and acts
amending the same, or under c. 71 of the Consolidated Statutes for
Upper Canada, or any act amending the same.

4. A certificate of qualification to practise medicine, surgery, and
midwifery, or either, hereafter granted by any colleges or bodies named
or referred to in sec. 6.

5. A medical or surgical degree or diploma of any university or college
in Her Majesty’s dominions or of such other universities or colleges as
the council may determine.

6. A certificate of registration under the Imperial Act 21 and 22
Vict., c. 90, known as “The Medical Act,” or any act amending the same.

7. A commission or warrant as physician or surgeon in Her Majesty’s
military service.

8. Certificates of qualification to practise medicine under any of the
acts relating to homœopathy or the eclectic system of medicine.

FEES.—To registrar, for transfer under sec. 9 (2), $2.

To registrar, for registration under sec. 24, not more than $10, to be
fixed by the by-laws of council.

To registrar, for registration under sec. 25, such fees as the council
may by general by-law establish.

To registrar, for copies under sec. 38, 5 cents a folio.

Members are required to pay an annual fee to the college; the amount
and means of enforcing which are in the discretion of the elected
members of the council (Act 1893, c. 27, s. 6).


PRINCE EDWARD ISLAND.

MEDICAL SOCIETY.—The members of the medical profession constitute a
body corporate under the name of the “Medical Society of Prince Edward
Island” (Act 1892, c. 42, s. 1).

Persons registered under the act 34 Vict., c. 25, or 37 Vict., or the
Prince Edward Island Medical Act of 1890, are members of the society
and entitled to register under this act without a fee (_ib._, s. 2).

All persons registered under this act are members of the said society
(_ib._, s. 3).

REGISTRATION.—There is a council of said society, composed of seven
members of the society elected by the society (_ib._, s. 4), which is
required to appoint a registrar among other officers (_ib._, s. 6); and
to cause him to keep a register of the name of every person registered
under this act, or the acts mentioned in sec. 2, and from time to time
of the names of all persons who have complied with this act and the
rules and regulations made by the council respecting the qualifications
of practitioners of medicine, surgery, or midwifery, which is called
the Prince Edward Island Medical Register; and only those persons whose
names are inscribed therein are qualified and licensed to practise
medicine, surgery, or midwifery, except as hereinafter provided (_ib._,
s. 8).

The registrar is required to keep his register correct, and to make the
necessary alterations in the addresses and qualifications of persons
registered (_ib._, s. 9).

The council is required to admit to registration, on the payment of the
registration fee, all persons duly registered by the medical council of
Great Britain or otherwise authorized to practise medicine, surgery, or
midwifery in the United Kingdom of Great Britain and Ireland (_ib._, s.
10).

Every person who holds a medical or surgical degree or diploma dated
prior to January 1st, 1880, from any university, college, or school
of medicine in Great Britain, Ireland, or Canada, or any of the
universities or colleges in the United States mentioned in Schedule A,
is entitled to register on producing to the registrar such diploma or
satisfactory evidence of the qualification in respect whereof he seeks
to be registered (_ib._, s. 11).

Every person desirous of being registered, not registered under the
acts mentioned in sec. 2, and who had not become possessed of a diploma
as provided in sec. 11, must, before being entitled to register, be
examined as to his knowledge and skill for the efficient practice
of his profession before the medical council, and on passing the
examination required and producing proof of study in medicine, surgery,
and midwifery four years, one of which may be with a registered
medical practitioner, shall, subject to the next section, be entitled
to register and by virtue of such registration to practise medicine,
surgery, and midwifery; provided, the council may, if it see fit,
dispense with the examination in any case (_ib._, s. 12).

No person commencing the study of medicine on or after September
1st, 1892, shall be entitled to register unless he has passed a
matriculation examination equivalent to that of the College of Surgeons
of London, or shall hold a license as a first-class teacher in this
province, or shall have obtained from the council a certificate that he
has satisfactorily passed a matriculation examination in the subjects
specified in Schedule B.

Any graduate or student matriculated in the arts in any university in
Her Majesty’s dominions shall not be required to pass the matriculation
examination (_ib._, s. 13).

The council may grant a license to practise medicine, surgery, or
midwifery to an applicant at the time of the passage of this act
practising medicine, surgery, or midwifery, or any of them, in Prince
Edward Island, on a preliminary examination as the council may think
necessary for the public safety, provided such person shall have
practised five years in the province, but such person is not thereby
entitled to registration (_ib._, s. 15).

When there has been established an authorized examining body or an
institution recognized by the legislature of any other province of the
Dominion of Canada as the sole examining body for granting certificates
of qualification, and where the curriculum is equal to that appointed
by the medical council of Prince Edward Island, the holder of such
certificate shall, upon due proof, be entitled to registration by the
council of Prince Edward Island, if the same privilege is accorded in
such other province to those registered in Prince Edward Island (_ib._,
s. 16).

The council is required to hold examinations at least every three
months, if required, for candidates for registration, at such places
and times and in the same manner as the council may direct (_ib._, s.
18).

Every person registered who obtains a higher degree or other
qualification shall, on the payment of such fees as the council shall
appoint, be entitled to have it registered in substitution for or in
addition to the qualification previously registered (_ib._, s. 19).

No qualification is entered unless the registrar be satisfied, by
proper evidence, that the person claiming is entitled to register it.
There is an appeal to the council; any name proved to the council to
have been fraudulently or incorrectly entered may be erased by an order
in writing of the council (_ib._, s. 20).

If the registrar is dissatisfied with the evidence he may, subject to
appeal to the council, refuse registration until the person claiming
it has furnished evidence to the satisfaction of the registrar, duly
attested by oath or affidavit before a notary public or justice of the
peace (_ib._, s. 21).

A medical practitioner guilty of infamous or disgraceful conduct in a
professional respect is liable to have his name erased, and if he apply
for registration the council may refuse it (_ib._, s. 22).

The registrar may publish in a newspaper or newspapers of Prince Edward
Island the fact that the name of such person has been erased, and the
cause of the erasure, but not until the appeal, if any has been taken
within the time allowed, has been disposed of (_ib._, s. 23).

Where the council refuse to register, or direct an erasure, the entry
shall not be again made except by direction of the council or the order
of the supreme court or a judge thereof (_ib._, s. 24).

Five days’ notice of the meeting of the council for the hearing of an
appeal under sec. 2 must be served on the person charged, embodying
a copy of the charges or a statement of the inquiry and the time and
place of meeting (_ib._, s. 25).

RIGHTS OF REGISTERED PERSONS.—Every person licensed or registered
under the act is entitled according to his qualifications to practise
medicine, surgery, and midwifery, or any of them, as the case may be,
and recover with costs his reasonable charges for professional aid,
advice, and visits, and the cost of medicines or medical and surgical
appliances rendered or supplied by him to his patient (_ib._, s. 26).

LIMITATIONS.—Twelve months is established as the period of limitations
for an action from negligence or malpractice against a person
registered (_ib._, s. 27).

EVIDENCE.—The registrar is required, under the direction of the
council, to print and publish once in two years a register of the
names of all persons registered, with the residence and medical title,
diploma, and qualification conferred by any college or body, with the
dates thereof, as existing on the day of the publication. A copy of
such register, for the time being, purporting to be so printed and
published, is _prima facie_ evidence that the persons specified are
registered. The absence of a name from such copy is _prima facie_
evidence that such person is not registered.

In case a name does not appear in the copy, a certified copy, under
the hand of the registrar of the council, of the entry of a name is
evidence that such person is registered (_ib._, s. 28).

FRAUDULENT REGISTRATION.—If a person be registered by false or
fraudulent representations the registrar may, on the receipt of
sufficient evidence thereof, report the matter to the council, and on
the order of the council erase his name from the register and make
known the fact and cause by a notice in the newspaper or newspapers on
Prince Edward Island (_ib._, s. 29 [1]).

OFFENCES AND PENALTIES.—Wilfully procuring or attempting to procure
registration by false or fraudulent representation is punishable with
a penalty not exceeding $50. Knowingly aiding and assisting therein is
punishable with a penalty of from $10 to $25 for each offence (_ib._,
s. 29 [2]).

Without registration or license, practising for hire or hope of reward
or advertising to give advice in medicine, surgery, or midwifery is
punishable with a penalty not exceeding $25 (_ib._, s. 30).

Wilfully or falsely pretending to be a physician, doctor of medicine,
surgeon, or general practitioner, or assuming a title, addition, or
description not actually possessed, or pretending to be recognized by
law as a physician, accoucheur, or a licentiate in medicine, surgery,
or midwifery, is punishable with a penalty not exceeding $25 (_ib._, s.
31).

UNREGISTERED PERSONS.—No person is entitled to recover a charge for
medical or surgical advice or attendance or for the performance of a
surgical operation unless registered, licensed, or otherwise authorized
under this act (_ib._, s. 32).

No person is to be appointed as a medical officer, physician, or
surgeon in any branch of the public service, or any hospital or other
charitable institution unless registered (_ib._, s. 33).

COSTS.—On prosecution, costs may be awarded and the offender may be
committed to a common jail in default of paying the penalty and costs,
for not exceeding one month (_ib._, s. 34).

APPEAL FROM CONVICTION.—A person appealing from conviction is required
to give satisfactory security for the penalty, costs of conviction, and
appeal before released from custody (_ib._, s. 35).

LIMITATION OF PROSECUTIONS.—Prosecutions are required to be commenced
within six months from the date of the offence (_ib._, s. 36).

PROSECUTOR.—Any person may be prosecutor or complainant (_ib._, s. 37).

APPEAL FROM REGISTRAR’S DECISION.—A person aggrieved by the decision
of the registrar may appeal to the council, and persons aggrieved
by the decision of the council may appeal to the supreme court of
the province, which decision shall be final. The act prescribes the
procedure on appeal (_ib._, s. 38, 39).

POWERS OF COUNCIL.—The council may make by-laws for carrying out the
act, to be approved by the lieutenant-governor in council, but nothing
shall prevent any registered medical practitioner from giving medical
treatment or advice to any person by reason of such person having
previously engaged the services of any other physician (_ib._, s. 40).

The council is authorized to make regulations regarding the holding of
examinations and the subjects of examinations (_ib._, s. 41)

EXCEPTIONS.—The act does not prevent any person from giving necessary
medical or surgical aid or attendance to any one in urgent need of
it provided it be not for hire or gain, nor the giving of it be made
a business or means of livelihood; nor does it prevent women from
practising midwifery, or any person from practising dentistry or
treating cases of cancer by external application, and charging for
such service and suing for and recovering reasonable charges; nor does
it prevent a druggist, apothecary, or storekeeper from suing for and
recovering the price of drugs or chemicals supplied or sold by him
(_ib._, s. 42).

The act does not prevent a person not holding a medical degree,
license, or diploma from a university or college from practising
medicine, surgery, or midwifery provided he was engaged in such
practice in the province for five years immediately before the passage
of the act, nor from recovering with costs his reasonable charges for
professional aid, advice, and visits and the cost of medicine or other
medical or surgical appliances rendered or supplied by him to his
patients (_ib._, s. 43).

APPEAL ON PROSECUTION.—Appeal from the decision on prosecution may be
taken to the supreme court (_ib._, s. 44).

 Schedule A:

 University of Pennsylvania, Philadelphia, Pa.

 Jefferson Medical College, Philadelphia, Pa.

 Bellevue Medical College, New York, N. Y.

 University of New York, New York, N. Y.

 College of Physicians and Surgeons, New York, N. Y.

 Harvard University.

 University of Michigan.

Schedule B specifies at length the requirements for the examination
mentioned in sec. 13.

FEES.—Persons registered under sec. 2 are not required to pay a fee.

For registration under secs. 11 and 12, not exceeding $20, to be fixed
by the society.

To the council, for a license under sec. 15, $5.

An annual fee is required to be paid by members of the society, not
more than $5 annually, as levied by the council (_ib._, s. 17).

For registration under sec. 19, such fees as the council may appoint.


QUEBEC.

COLLEGE OF PHYSICIANS, ETC.—All persons residing in the province
authorized to practise medicine, surgery, or midwifery therein, and
registered under this law, are constituted a corporation by the name of
“The College of Physicians and Surgeons of the Province of Quebec” (R.
S., 1888, art. 3,969).

The affairs of the college are conducted by a board of governors, forty
in number, chosen as provided in the act and known as the “Provincial
Medical Board” (_ib._, art. 3,972 to 3,975).

QUALIFICATION.—No person can lawfully practise medicine, surgery, or
midwifery unless he has obtained a license from the said board and
unless he be registered (_ib._, art. 3,976).

Every person who obtains a medical degree or diploma in any university
or college mentioned in art. 3,972 is entitled to such license without
examination as to his medical knowledge or skill, provided such diploma
has only been given after four years of medical study from the date
of admission to study and according to the requirements of the act;
provided, the said board has power to grant the same privileges to
holders of degrees or diplomas of medicine and surgery from other
British colonial or French universities or colleges (_ib._, art. 3,977).

The colleges referred to in art. 3,792 are: Laval University at Quebec,
Laval University at Montreal, University of McGill College, University
of Bishops College, The Incorporated School of Medicine and Surgery of
Montreal affiliated with the University of Victoria College or with any
other British university. The privilege above conferred on holders of
degrees or diplomas from British colleges and universities is extended
to every person whose name is entered upon the medical register under
the Imperial Medical Act of 1886 (49-50 Vict., c. 48) or of any act
amending the same (_ib._, art. 3,977 a, as added by Act 1889, c. 39).

The law prescribes the preliminary qualifications for admission to
study medicine, surgery, or midwifery to be ascertained by examination.
No one is entitled to the license of the college on presentation of
a diploma unless previously admitted to study in accordance with
these conditions, or unless he has passed an equivalent preliminary
examination before a college, school or board authorized by law to
require and cause such preliminary examinations to be passed in Her
British Majesty’s other possessions (_ib._, arts. 3,978, 3,979).

A candidate for a license to practise desiring to be registered,
and who has not obtained a degree or diploma in medicine from any
institution mentioned in art. 3,972 (_supra_) must, before being
entitled to such license and to register, pass an examination before
the board as to his knowledge and skill for the efficient practice
of medicine, surgery, and midwifery. Upon passing the examination
and proving to the satisfaction of the examiners that he has, in an
institution for the teaching of medicine in Her Majesty’s possessions,
complied with the rules and regulations made by the provincial board,
and on payment of such fees as the board may by general by-law
establish, such person shall be entitled to a license (_ib._, art.
3,980).

All persons coming from any recognized college outside of Her
Majesty’s possessions desirous of obtaining a license from the College
of Physicians and Surgeons of the province must previously pass a
preliminary examination before the examiners appointed by the board
or establish to the satisfaction of the board that they have already
passed equivalent examinations, and they must moreover follow in one
of the schools of medicine in the province a complete course (for six
months) of lectures, and such other course or courses as shall be
necessary to complete the curriculum required by the board. They may
pass their professional examination immediately after their preliminary
examination (_ib._, art. 3,981).

POWERS OF MEDICAL BOARD.—The board of governors of the College of
Physicians and Surgeons has among other powers the power to examine
all credentials and documents purporting to entitle the bearer to a
license to practise and all diplomas, degrees, or other qualifications
sought to be registered, and to require the bearer to attest on oath,
to be administered by the chairman, that he is the person whose name is
mentioned therein, and that he became legally possessed thereof; and to
register in the books of the college the name, age, place of residence
and birth of every member of the profession practising in the province,
the date of his license and the place where he obtained it (_ib._, art.
3,982).

The provincial medical board, among other powers, has the power to
make regulations respecting the tariffs or rates to be charged in
towns and counties for medical, obstetrical, or surgical advice, or
for attendance or for the performance of any operation or for any
medicines prescribed or supplied. The tariff must be approved by the
lieutenant-governor in council, and can only come into force six months
after its publication once in the Quebec _Official Gazette_, and that
of the order in council approving the same. The tariff does not, in
case of suit, obviate the necessity of proof of giving the advice,
care, prescriptions, medicines, and other things therein mentioned
(_ib._, art. 3,983).

The said board has power to fix the fees for license and registration
(_ib._, art. 3,984).

QUALIFICATIONS OF CANDIDATE.—The qualifications of a candidate for a
license are:

1. That he holds a certificate of study from a licensed physician for
the period intervening between the courses of lectures which he has
followed.

2. That he has reached the age of twenty-one years.

3. That he has followed his studies during a period of not less than
four years, commencing from the date of his admission by the board to
study medicine.

4. That during said four years he attended at some university, college,
or incorporated school of medicine within Her Majesty’s possessions not
less than two six-months’ courses of general or descriptive anatomy,
of practical anatomy, of surgery, of the practice of medicine, of
midwifery, of chemistry, of materia medica and general therapeutics, of
the institutions of medicine or physiology and general pathology, of
clinical medicine, and of clinical surgery; one six-months’ course or
two three-months’ courses of medical jurisprudence, one three-months’
course of botany, one three-months’ course of hygiene, and a course
of not less than twenty-five demonstrations upon microscopic anatomy,
physiology, and pathology.

5. That he attended the general practice of a hospital in which are
contained not less than fifty beds under the charge of not less than
two physicians or surgeons, for not less than one and one-half years or
three periods of not less than six months each.

6. That he has attended six cases of labor and compounded medicines for
six months.

Each six-months’ course shall have consisted of one hundred and twenty
lectures except in the case of clinical medicine, clinical surgery, and
medical jurisprudence.

Of four years’ study required by this section, three six-months’
sessions, at least, must be passed in attending upon lectures at a
university, college, or incorporated school of medicine recognized by
the board.

The first of such courses must have been attended during the session
immediately succeeding the preliminary examination, and the last
during the fourth year of study, and the candidates must undergo an
examination on the final subjects of the curriculum at the end of the
session in the fourth year of study (_ib._, art. 3,985).

MEMBERS OF COLLEGE.—All persons obtaining a license to practise from
the College of Physicians and Surgeons of the province are members of
the college, but are not eligible for governors within four years from
the date of their admission as members (_ib._, art. 3,986).

WOMEN.—The provincial medical board has power to make regulations
respecting the admission of women to the study and practice of
midwifery. Women who were legally qualified on the 31st of October,
1879, to practise as midwives in the province, while required to
conform to the rules of said college, retain their right. Nothing in
the act or the regulations shall prevent women in the country from
practising midwifery or assisting at accouchements without being
admitted to the study or practice of midwifery; but they must obtain a
certificate from a duly licensed physician certifying that they have
the necessary knowledge (_ib._, art. 3,987).

REGISTER.—The medical board is required to cause to be kept by the
registrar a register of persons duly licensed and registered, and
who have complied with the law and the regulations of the board, and
those persons only whose names are inscribed therein are deemed to be
qualified and licensed (_ib._, art. 3,988).

The registrar is required from time to time to make the necessary
alterations in the register (_ib._, art. 3,989).

EVIDENCE.—The registrar, under the direction of the board of
governors, causes to be printed, published, and distributed to the
members, from time to time, a copy, called _The Quebec Medical
Register_, of the register, containing names, surnames, residences,
medical titles, diplomas, and qualifications conferred by a college
or other medical body, with the dates of the same. A printed copy,
certified under the hand of the registrar as such, is _prima facie_
evidence that the persons named and entered have been registered in
accordance with this law. The absence of the name of any person from
such copy is _prima facie_ proof that such person has not been lawfully
registered; provided always in case a person’s name does not appear
on such printed copy, a copy or extract from the register certified
by the registrar of the college of the entry of such person’s name on
the register is proof that such person is duly registered (_ib._, art.
3,990).

A certificate under the hand of the registrar of the payment of the
annual contribution of members of the college is _prima facie_ evidence
that such payments have been made (_ib._, art. 3,991).

NEGLECT TO REGISTER.—A person entitled to register who neglects to
register is not entitled to practise medicine, surgery, or midwifery,
or to claim any of the rights and privileges conferred, and is liable
for all penalties imposed for practising without registration, saving
the right of certain members holding a license from the College of
Physicians and Surgeons of Lower Canada (_ib._, art. 3,992).

ESTABLISHED PRACTITIONER.—A person who has attended medical lectures
during three sessions of a medical school in the British possessions,
and who has actually been engaged in the practice of medicine for
over thirty years in the province, may, on proof of these facts to
the satisfaction of the provincial medical board, and producing a
certificate signed by two resident medical practitioners in the
neighborhood where he has practised that he has succeeded in his
profession, and is entitled to the consideration of the board, be
entitled to a license and to registration without an examination
(_ib._, art. 3,993).

UNREGISTERED PERSONS.—No person unless otherwise authorized is
entitled to recover any charge for medical or surgical advice, or
professional service, or for the performance of any operation, or for
any medicines prescribed or supplied, nor is he entitled to any of the
rights or privileges conferred, unless he has registered according
to law and paid his annual contribution to the college (_ib._, art.
3,994).

No certificate required from any physician or surgeon or medical
practitioner is valid unless the signer is registered (_ib._, art.
3,995).

PERSONS GUILTY OF FELONY.—Any registered member of the medical
profession convicted of felony forfeits his right to registration,
and the medical board causes his name to be erased from the register
(_ib._, art. 3,996).

If a person known to have been convicted of felony presents himself
for registration, the registrar is required to refuse him registration
(_ib._, art. 3,997).

OFFENCES AND PENALTIES.—A person not entitled to register convicted of
having practised in contravention of this law, for reward or the hope
of reward, is liable to a penalty of $50.

A like penalty is incurred by every person assuming the title of
doctor, physician, or surgeon, or any other name implying that he is
legally authorized to practise, if unable to establish the fact by
legal proof, and by every person who in an advertisement in a newspaper
or in a written or printed circular, or on business cards or on signs,
assumes a designation so as to lead the public to believe that he is
duly registered or qualified; and by every person who offers or gives
his services as a physician, surgeon, or accoucheur for gain or hope of
reward, if he be not duly authorized and registered.

BURDEN OF PROOF.—In every prosecution, proof of registration is
incumbent on the party prosecuted.

WITNESSES.—Members of the college are not incompetent witnesses by
reason of their membership.

COSTS.—The court imposing a penalty adds costs, and, in default of
payment within a delay which it fixes, condemns the defendant to
imprisonment in a common jail of the district for sixty days (_ib._,
art. 3,998).

EVIDENCE.—In cases where proof of registration is required, the
production of a printed or other copy or extract from the register,
certified under the hand of the registrar of the college, is sufficient
evidence that all persons named therein are registered practitioners
and any certificate upon such proof, or other copy of the register or
extract from such register, purporting to be signed by any person in
his capacity of registrar of the college, is _prima facie_ evidence
that such person is registrar without proof of the signature or of his
being in fact such registrar (_ib._, art. 3,999).

HOMŒOPATHISTS.—The rights of homœopathists are not affected by the
foregoing sections (_ib._, art. 4,002).

The homœopathic physicians and surgeons of the province form a
corporation under the name of the Montreal Homœopathic Association
(_ib._, art. 4,003).

The corporation has power to appoint three medical graduates of a
British or provincial university or medical licentiates of a British
or provincial college or board legally incorporated to be a board of
examiners, to examine all persons who may desire to obtain a license to
practise homœopathic medicine (_ib._, art. 4,008).

A person desiring to be examined touching his qualifications to
practise according to the doctrines and teaching of homœopathy shall
give notice in writing of at least one month to the secretary or
treasurer of the association, and show that he is not less than
twenty-one years of age; has followed medical studies for not
less than four years under the care of one or more duly qualified
medical practitioners; has attended at some recognized university or
incorporated school of medicine not less than two six-months’ courses
of anatomy, physiology, surgery, theory and practice of medicine,
midwifery, chemistry, materia medica, and therapeutics respectively,
and not less than one six-months’ course of clinical medicine and
medical jurisprudence respectively, or their equivalents in time;
and shall have complied with the regulations of such university or
incorporated school of medicine with regard to such courses, and
shall have followed such other course or courses as may hereafter be
considered by the board of examiners requisite for the advancement of a
medical education.

All such persons shall, at a regularly appointed time and place, be
examined on all the aforesaid branches by the board of examiners
(_ib._, art. 4,009).

If the board be satisfied by examination that a person is duly
qualified to practise either or all of said branches of medicine, as
taught and practised by homœopathists, they shall certify the same
under the hands and seals of two or all of such board.

The lieutenant-governor, on receipt of such certificate, may, if
satisfied of the loyalty, integrity, and good morals of the applicant,
grant to him a license to practise medicine, surgery, and midwifery, or
either of them, conformably to the certificate, and all such licensees
are entitled to all the privileges enjoyed by licentiates of medicine
(_ib._, art. 4,010).

The corporation appoints a secretary who keeps a register of names of
all persons duly licensed to practise medicine, surgery, and midwifery,
or either of them, according to the doctrines and teachings of
homœopathy.

Only those whose names are inscribed in said register are qualified
and licensed to practise according to the doctrines and teachings of
homœopathy (_ib._, art. 4,015).

The said secretary is required to make the necessary alterations in
the addresses or qualifications of the persons registered (_ib._, art.
4,016).

OFFENCES AND PENALTIES.—A person practising according to the
homœopathic doctrines for reward in contravention of this act, or
assuming a title implying that a person is legally authorized to
practise according to homœopathic doctrines, if unable legally to
establish such authorization; or by advertisement published in a
newspaper or in a written or printed circular, or on business cards or
signs, assuming a designation to lead the public to believe that he is
duly registered and qualified to practise according to the doctrines of
homœopathy; or offering or giving his services as physician, surgeon,
or accoucheur for gain or hope of reward, if not duly authorized or
registered, is punishable with a penalty of $50.

BURDEN OF PROOF.—In every prosecution, the proof of registration is
incumbent on the party prosecuted.

COSTS.—The court may condemn the defendant to pay $50 in addition to
costs within a delay which it determines, and to imprisonment of sixty
days in a common jail of the district on default of payment within the
delay (_ib._, art. 4,017).

WITNESSES.—A member of the corporation is not an incompetent witness
on account of his membership (_ib._, art. 4,018).

FEES.—The provincial board of medical examiners may establish
examination fees (_ib._, art. 3,981).

Members of the College of Physicians and Surgeons of the Province of
Quebec are required to pay an annual fee of $2 (_ib._, art. 3,986).



FORENSIC MEDICINE.

THANATOLOGICAL.



  THE

  LEGAL STATUS OF THE DEAD BODY;

  THE DISPOSAL AND OBLIGATION TO DISPOSE OF THE SAME; HOW
  AND BY WHOM IT MAY BE EXHUMED OR REMOVED;
  AUTOPSIES, BY WHOM ORDERED; THE RIGHTS
  OF RELATIVES AND ACCUSED PERSONS.

  INCLUDING

  AN APPENDIX CONTAINING A SYNOPSIS OF THE STATUTES OF THE
  DIFFERENT UNITED STATES AND TERRITORIES
  CONCERNING SAME.


  BY

  TRACY C. BECKER, A.B., LL.B., ETC.,

  _Counsellor at Law, etc.; Professor of Civil Law and Medical
  Jurisprudence, Law Department, University of Buffalo._



LEGAL STATUS OF THE DEAD BODY.


=Disposal and Obligations to Dispose of the Same.=—There is no right
of property, in the ordinary sense of the word, in a dead human body;
but for the health and protection of society it is a rule of the common
law, and which has been confirmed by statutes in civilized states
and countries, that public duties are imposed upon public officers,
and private duties upon the husband or wife and the next of kin of
the deceased, to protect the body from violation and see that it is
properly interred, and to protect it after it is interred. A parent is
bound to provide Christian burial for a deceased child, if he has the
means, but if he has not the means, though the body remains unburied
so long as to become a nuisance, he is not indictable for the nuisance
although he could obtain money for the burial expenses by borrowing it
of the poor-law authorities of the parish, for he is not bound to incur
a debt. (Reg. _v._ Vann, 2 Div. C. C., 325; 15 Jur., 1,090.) On the
other hand it has been held in England, that every householder in whose
house a dead body lies is bound by the common law, if he has the means
to do so, to inter the body decently, and this principle applies where
a person dies in the house of a parish or a union. (Reg. _v._ Stewart,
12 A. & D., 1,272.) And the expense may be paid out of the effects of
the deceased. (Tugwell _v._ Hayman, 3 Camp., 298, and note.)

In Pierce _v._ The Proprietors Swan Point Cemetery, 10 R. I., 227,
s. c., 14 Am. Rep., 667, the Court said: “That there is no right
of property in a dead body, using this word in its ordinary sense,
may be well admitted, yet the burial of the dead is a subject which
interests the feelings of mankind to a much greater degree than many
matters of actual property. There is a duty imposed by the universal
feelings of mankind to be discharged by some one toward the dead; a
duty, and we may also say a right, to protect from violation; it may,
therefore, be considered as a sort of _quasi_ property, and it would
be discreditable to any system of law not to provide a remedy in such
a case; ... but the person having charge of it cannot be considered as
the owner of it in any sense whatever, he holds it only as a sacred
trust for the benefit of all who may from family or friendship have
an interest in it.” See also Wyncoop _v._ Wyncoop, 42 Pa. St., 293; 4
Albany Law Jour., 56; Snyder _v._ Snyder, 60 How. Prac., 368; Weld _v._
Walker, 130 Mass., 422; Guthrie _v._ Weaver, 1 Mo. Apps., 136; Johnson
_v._ Marinus, 18 Abb. N. C., 72, and note.[493]

The law casts the duty of burial of the wife upon the husband, and
of the husband upon the wife. In Secord _v._ Secord (cited in note 1
above), the Court said: “There are cogent reasons connected with public
policy and the peace of families, where in the absence of testamentary
disposition the possession of a corpse and the right to determine its
burial should follow the administration of the estate.” Inasmuch as
the husband has the first right to administer upon the estate of the
wife, and the wife upon the estate of the husband, the law imposes the
correlative duty of burial upon the person having such right; and so
it has been held that the husband is liable for the necessary expense
of the decent interment of his wife from whom he has been separated,
whether the party incurring the expense is an undertaker or mere
volunteer.[494]

Where the deceased leaves a will appointing executors, the executors
have a right to the possession of the body, and the duty of burial
is imposed upon them, but it has been doubted whether at common law
a direction by will concerning the disposal of the body could be
enforced, and therefore the right to make such direction has been
conferred by statute in several States.[495]

And where a widow ordered a funeral of her husband, it was held that
she was liable for the expense, although she was an infant at the time,
the Court holding that the expense fell under the head of necessaries,
for which infants’ estates are liable.[496]

If there be no husband or wife of the deceased, the nearest of kin
in the order of right to administration is charged with the duty of
burial.[497]

Such acts as casting a dead human body into a river without the rites
of sepulture (Kanavans Case, 1 Me., 226); stealing a corpse (2 East,
PC., 652) or stealing for dissection a dead body of one executed when
the death sentence did not direct dissection (Rex _v._ Cundick, D. &
R., n. p., 13), were indictable offences at common law.[498]

In the works of the early dramatists, and by some writers of fiction,
it has been stated, or implied, that the body of a deceased person
could be seized and detained to compel the payment of his debts. This
was never the law. In Jones _v._ Ashburnham, 4 East, 460, it was held
that to seize a dead body on pretence of arresting for debt would be
_contra bonos mores_, and an extortion on the relatives, and that case
distinctly overrules any authority to be derived from the case of Quick
_v._ Coppleton, 1 Vent., 161, to the effect that forbearance to seize
or hold a body upon such a pretence would afford any consideration for
a promise to pay a debt. So, also, where a jailer refused to give up
a body of a person who had died while a prisoner in execution in his
custody, to the executors of the deceased, unless they would satisfy
certain claims against the deceased due the jailer, the Court issued
a peremptory mandamus in the first instance, commanding that the body
should be delivered up to the executors (Rex _v._ Fox, 2 Q. B., 247).
And in R. _v._ Scott, 2 Q. B., 248, it was said, that a jailer who
should attempt to do so would be guilty of misconduct in his public
character, for which he would be liable to prosecution.[499]

_How and by Whom the Dead Human Body may be Removed or Exhumed._—Where
the right of burial has been exercised, and the body interred in
its final resting-place, no person has any right to interfere
with it without the consent of the owner of the grave, or of the
properly constituted public authorities. In Foster _v._ Dodd, 8 D.
& E., 842-854, it was held, that a dead body belongs to no one, and
is, therefore, under the protection of the public. If it lies in
consecrated ground, ecclesiastical authorities will interpose for
its protection; but whether in ground consecrated or unconsecrated,
indignities offered to the remains or the act of indecently
disinterring them, are the ground of an indictment.[500]

Even the purchaser of land upon which is located a burial-ground may
be enjoined from removing bodies therefrom, if he attempts to do so
against the wishes of the relatives or next of kin of the deceased.
Every interment is a concession of the privilege which cannot afterward
be repudiated, and the purchaser’s title to the ground is fettered with
the right of burial.[501]

On the other hand, the right of the municipal or state authorities,
with the consent of the owner of the burial lot or in the execution of
the right of eminent domain, to remove dead bodies from cemeteries is
well settled.[502]

After the right of burial has once been exercised by the person charged
with the duty of burial, or where such person has consented to the
burial by another person, no right to the corpse remains except to
protect it from unlawful interference.[503]

On the other hand, where a husband did not freely consent to the burial
of his wife in a lot owned by another person, it was held that a court
of equity might permit him, after such burial, to remove her body,
coffin, and tombstones to his own lot, and restrain any person from
interfering with such removal.[504]

In Rhodes _v._ Brandt, 21 Hun, N. Y., 1, the defendant brought an
action against one Beelard to recover for services rendered by him, as
a physician, in treating a child of Beelard’s for a fracture of the
thigh-bone, in which action Beelard set up malpractice on the part of
the defendant as a defence. During the pendency of the action the child
died and was buried. Subsequently Beelard, the father, acting under the
advice of his counsel, directed and allowed the plaintiff, a physician,
to cause the body of the child to be exhumed, and a portion of the
thigh-bone to be removed, in order that it might be used in evidence on
the trial of the question of malpractice. After the bone was removed,
the body was returned to the grave. The defendant thereupon caused the
plaintiff to be arrested for unlawfully removing the body from the
grave contrary to the provisions of the statute, and the plaintiff
sued the defendant for malicious prosecution. The Court held that the
plaintiff had not removed the body from the grave “for the purpose of
dissection or from mere wantonness,” as these terms were used in the
statute (3 R. S., 6th ed., 965), for violation of which he had been
arrested, nor had he committed any offence against public decency or
the spirit of the statute.[505]

_Autopsies, by Whom Ordered; the Rights of Relatives and Accused
Persons._—As shown in a previous article in this volume, on the Powers
and Duties of Coroners and Medical Examiners, in cases of sudden or
suspicious death, it has been the law for nearly a thousand years
that an inquisition or inquest _super visum corporis_ must be held by
an officer known as a coroner, and that this office and its powers and
duties were inherited by this country as part of the English common-law
system in force at the time of the formation of the republic of the
United States. When a body has been buried, and the coroner believes
that an inquest is necessary, he has power to disinter the body and
hold an inquest, and he may direct a post-mortem examination to be
made, but after having done so he must cause the body to be reinterred.
It is now well settled that in holding such an inquest, and making such
an autopsy or post-mortem examination required by his official duty,
the coroner has authority to employ, and it is his duty to employ,
professional skill and aid, and his contract will bind the county to
pay a reasonable compensation for the same.[506]

As will be seen below from a synopsis of the statutes relating to
this matter, many of the States have enacted statutes defining and
prescribing the duties of the coroner and other public officers in such
cases. At an early period in England (see 2 and 3 Will. IV., chap. 75,
sec. 7) it was enacted by the English Parliament that any executor
or other person having lawful possession of the body of a deceased
person, and not being an undertaker or other party entrusted with the
body for the purpose only of interment, might lawfully permit the body
of such deceased person to undergo an anatomical examination, unless
to the knowledge of such executor or other party such person should
have expressed his desire during his life in writing, or verbally in
the presence of two or more witnesses during his illness whereof he
died, that his body after death might not undergo such examination, or
unless the surviving husband or wife or known relative of the deceased
shall require the body to be interred without such examination. By
another section of this statute (sec. 10), professors of anatomy and
other persons duly licensed were declared not liable to punishment for
having in their possession human bodies when having such possession
according to the provisions of the act.

Section 308 of the New York Penal Code, subdivision 3, as amended
by chapter 500, Laws 1889, enacts that whenever and so far as the
husband, wife, or next of kin of the deceased, being charged by law
with the duty of burial, may authorize dissection for the purpose
of ascertaining the cause of death and no further, the right exists
to dissect the dead human body. The same statute also provides that
whenever any district attorney of that State, in the discharge of
his official duties, shall deem it necessary, he may exhume, take
possession of, and remove the body of a deceased person, or any
portion thereof, and submit the same to a proper physical or chemical
examination or analysis, to ascertain the cause of death, which
examination or analysis will be made on the order of a justice of the
Supreme Court of the State, or the county judge of the county in which
the dead bodies shall be, granted on the application of the district
attorney, with or without notice to the relatives of the deceased
person, or to any person or corporation having the legal charge of
such body, as the court may direct. The district attorney shall also
have power to direct the sheriff, constable, or other peace officer,
and employ such person or persons as he may deem necessary to assist
him, in exhuming, removing, obtaining possession of, and examining
physically or chemically such dead body, or any portion thereof; the
expense thereof to be a county charge paid by the county treasurer on
the certificate of the district attorney.

The matter of ordering autopsies and dissections of dead bodies, or
exhuming the same for that purpose or other purposes, is a matter of so
much public importance that it has been regulated in nearly all of the
United States by statutory enactments, which together with the other
statutes relating to the subject-matter of this article are hereunto
appended.

The author of this article is greatly indebted for assistance in
preparing the same, and in compiling these statutes, to Mr. Amasa J.
Parker, Jr., of the Albany, N.Y., bar.



APPENDIX.


_Statutory Regulations Concerning Dead Bodies._

The coroner has power to hold inquest and direct autopsy,

  Ala., Code, sec. 4,801 _et seq._
  Ariz., Pen. Code, sec. 2,309 _et seq._
  Ark., R. S., sec. 692.
  Cal., Pen. Code; sec. 1,510.
  Col., Mill’s Stat., sec. 870.
  Conn., Gen. Stat., secs. 2,005, 2,008.
  Del., R. S., ch. 33.
  Fla., R. S., secs. 3,011, 3,019.
  Ga., Code, secs. 590, 591, 4,101 _et seq._
  Idaho, R. S., sec. 8,377.
  Ill., S. & C. Am. Stat., v. 1, 606.
  Ind., R. S., secs. 5,878, 5,879.
  Iowa, McCl. Am. Code, sec. 487.
  Kan., Gen. Stat., secs. 1,780, 1,784.
  Ky., Gen. Stat., ch. 25, secs. 3, 11.
  La., Voorh. Rev. L., sec. 653.
  Me., R. S., ch. 139, sec. 1.
  Md., Code, art. 22, secs. 3, 4.
  Minn., Gen. Stat., sec. 1,011 _et seq._
  Miss., Am. Code, sec. 816.
  Mo., R. L., sec. 2,438 _et seq._
  Mont., Crim. L., secs. 869, 883.
  Neb., Consol. Stat., sec. 3,144.
  N. H., Pub. Stat., ch. 262, sec. 1 _et seq._
  N. J., Rev. Stat., p. 170 _et seq._
  N. C., Code, sec. 657.
  N. Dak., Comp. Laws, sec. 664 _et seq._
  Ohio, R. L., sec. 1,221 _et seq._
  Oklahoma, Stat., sec. 1,745 _et seq._
  Ore., Crim. Code, sec. 453 _et seq._
  Pa., Bright Pen. Digest, 1536, sec. 37.
  R. I., Pub. Laws, 1884, ch. 420, sec. 17.
  S. C., R. S., secs. 711, 2,664 _et seq._
  Tenn., Code, sec. 6,139 _et seq._
  Va., Code, sec. 2,928 _et seq._
  Wash., Hill’s Am. Stat., v. 1, sec. 245 _et seq._
  W. Va., Code, ch. 154.
  Wis., S. & B. Am. Stat., ch. 200.
  Wyo., R. S., sec. 1,879 _et seq._

Medical examiner shall hold inquest and direct autopsy.

  Mass., Pub. Stat., ch. 26, secs. 10, 11.
  R. I., Pub. Laws, 1884, ch. 420.

Justice of the peace shall hold inquest and direct autopsy.

  Mich., How. Am. Stat., v. 2, sec. 9,583 _et seq._
  Nev., Gen. Stat., sec. 225 _et seq._
  N. M., Comp. L., sec. 443 _et seq._
  Texas, Code Crim. P., art. 988 _et seq._
  Vt., Rev. L., sec. 3,934 _et seq._
  Wis., S. & B. Am. Stat., ch. 200.

And may order a body to be disinterred for the purpose of holding such
inquisition.

  Ark., R. L., sec. 718.
  Cal., Pen. Code, sec. 1,510.
  Del., R. L., ch. 33.
  Ga., Code, secs. 590, 591, 410 _et seq._
  Idaho, R. L., sec. 8,377.
  S. C., R. S., sec. 2,687.
  Texas, Code Crim. P., art. 989.

And when not claimed by friends and relatives, to bury the body
decently, and when the property of deceased is not sufficient to defray
expenses, this may be done at public expense.

  Cal., Pen. Code, sec. 3,094.
  Col., Mill’s Stat., sec. 882.
  Conn., Gen. Stat., sec. 2,015.
  Idaho, R. L., sec. 2,081.
  Ill., S. & C. Am. Stat., v. 1, 606.
  Iowa, McCl. Am. Code, sec. 501.
  Kan., Gen. Stat., sec. 1,792.
  Ky., Gen. Stat., ch. 25, sec. 6.
  La., Voorh. Rev. L., sec. 660.
  Me., R. S., ch. 139, sec. 11.
  Md., Code, art. 22, sec. 7.
  Mass., Laws, 1887, ch. 310.
  Mich., How. Am. Stat., v. 3, sec. 9,593.
  Minn., Gen. Stat., sec. 1,021.
  Miss., Am. Code, secs. 3,145, 3,146.
  Mo., R. L., sec. 2,456.
  Mont., Gen. Laws, sec. 881.
  Neb., Consol. Stat., sec. 3,144.
  Nev., Gen. Stat., sec. 2,269.
  N. H., Pub. Stat., ch. 262, sec. 16.
  N. J., Rev. Stat., p. 170, sec. 5.
  N. M., Comp. Laws, sec. 447.
  N. Dak., Comp. Laws, sec. 676.
  Ohio, R. L., sec. 1,227.
  Oklahoma, Stat., sec. 1,759.
  Ore., Crim. Code, sec. 462.
  R. I., Pub. Laws, 1884, ch. 420, sec. 24.
  Tenn., Code, sec. 6,150.
  Va., Code, sec. 3,946.
  Wash., Hill’s Am. Stat., v. 1, sec. 257.
  W. Va., Code, ch. 154, sec. 8.
  Wis., S. & B. Am. Stat., ch. 200.
  Wyo., R. S., sec. 1,886.

Removal or disinterment of a dead body without authority of law or
consent of relatives, for the purpose of selling such body or for
dissection or for mere wantonness, is—

(_a_) A felony.

  Cal., Pen. Code, sec. 290.
  Ga., Laws, 1882, v. 2, p. 87.
  Ill., S. & C. Am. Stat., v. 1, p. 794.
  Ind., R. S., sec. 2,166.
  Mo., R. S., secs. 3,842, 3,845.
  Mont., Laws, 1889, p. 114.
  N. C., Laws, 1885, ch. 90.

(_b_) A misdemeanor.

  Ark., R. S., secs. 1,902, 1,903.
  Del., Laws, 1883, ch. 234.
  Kan., Gen. Stat., sec. 2,372 _et seq._
  Md., Code, art. 27, secs. 133, 134.
  Pa., Bright Pen. Digest, 229, sec. 11.
  Tenn., Code, secs. 5,659, 5,660.

(_c_) Is punishable by various sentences.

  Ala., Code, secs. 4,023, 4,028.
  Ariz., Pen. Code, sec. 491.
  Col., Mill’s Stat., sec. 1,367.
  Conn., Gen. Stat., sec. 1,880.
  Fla., R. L., sec. 2,625.
  Iowa, McCl. Am. Code, sec. 5,328.
  Ky., Gen. Stat., ch. 29, art. 17, sec. 16.
  Me., R. S., ch. 124, sec. 27.
  Mass., Pub. Stat., ch. 207, secs. 47, 48.
  Mich., How. Stat., v. 2, sec. 9,297.
  Miss., Am. Code, secs. 1,023, 1,024.
  Neb., Consol. Stat., sec. 5,847.
  N. H., Pub. Stat., ch. 266, sec. 7.
  N Dak., Comp. Laws, sec. 6,559.
  Ohio, R. L., sec. 7,034.
  Oklahoma, Stat., sec. 2,198.
  Ore., Crim. Code, sec. 656.
  Texas, Pen. Code, art. 345.
  Vt., Rev. L., secs. 4,194, 4,196.
  Va., Code, sec. 208.
  W. Va., Code, ch. 149, sec. 13.
  Wis., S. & B. Am. Stat., sec. 4,592.
  Wyo., R. L., sec. 1,029.

(_d_) A high misdemeanor.

  N. J., Rev. Stat., p. 249, sec. 122.

Bodies of criminals executed under sentence, and those dying in jail,
poor-house, etc., when to be delivered over for dissection.

  Ark., R. S., sec. 2,552.
  Cal., Pen. Code, sec. 3,094.
  Col., Mill’s Stat., secs. 1,547, 1,548, 1,204.
  Conn., Gen. Stat., secs. 1,729, 1,732.
  Ga., Laws, 1887, v. 2, p. 87.
  Ill., S. & C. Am. Stat., v. 1, 869.
  Ill., Crim. Code, sec. 503.
  Ill., S. & C. Am. Stat., v. 3, p. 867.
  Ind., R. L., sec. 4,258 _et seq._
  Iowa, McCl. Am Code, sec. 5,329.
  Kan., Gen. Stat., sec. 3,758.
  Me., R. S., ch. 13, sec. 2.
  Me., Laws, 1893, ch. 254.
  Mass., Laws, 1891, ch. 185.
  Mass., Pub. Stat., ch. 202, sec. 8.
  Mich., How. Stat., v. 3, sec. 2,284.
  Minn., Gen. Stat., sec. 678.
  Mo., R. S., sec. 6,883.
  Neb., Consol. Stat., secs. 3,299, 3,301, 5,848.
  N. H., Pub. Stat., ch. 136.
  N. J., Rev. Stat., p. 239, sec. 69.
  N. C., Laws, 1891, ch. 129.
  N. Dak., Laws, 1890, ch. 92.
  Ohio, R. S., sec. 3,763.
  Ore., Hill’s Am. Laws, sec. 3,730 _et seq._
  Pa., Bright Pen. Dig., p. 94, sec. 1 _et seq._
  Vt., Laws, 1884, ch. 85.
  Va., Code, ch. 80.
  Wash., Hill’s Am. Stat., v. 1, sec. 2,428 _et seq._
  Wash., S. & B. Am. Stat., sec. 1,437.

Duty of burial, etc.

  Ariz., Pen. Code, sec. 493.
  Cal., Pen. Code, sec. 292.
  Minn., Gen. Stat., sec. 6,221.
  N. Dak., Comp. Laws, secs. 6,550, 6,556.
  Oklahoma, Stat., sec. 2,189.

Concealing birth of child which, if born alive, would be a bastard, is
punishable.

  Col., Mill’s Stat., sec. 1,195.
  Fla., R. L., sec. 2,393.
  Mass., Pub. Stat., ch. 207, sec. 11.
  Mich., How. Am. Stat., sec. 9,284.
  Mont., Crim. L., sec. 41.
  Neb., Consol. Stat., sec. 5,582.
  Nev., Gen. Stat., sec. 4,597.
  N. H., Pub. Stat., ch. 278, sec. 14.
  N. Dak., Comp. L., sec. 6,947.
  Oklahoma, Stat., sec. 2,179.
  Ore., Crim. Code, sec. 649.
  Pa., Bright Pen. Digest, 431, sec. 158.
  R. I., Pub. Stat., ch. 244, sec. 8.
  Wis., S. & B. Am. Stat., sec. 4,585.

Is a misdemeanor.

  Minn., Gen. Stat., sec. 6,210.
  N. J., Rev. Stat., p. 241, sec. 83.

Is a felony.

  Mo., R. S., sec. 3,479 (whether born dead or alive)


ALABAMA.

Removal of body wantonly for dissection or sale, purchase of a
body unlawfully disinterred, violating grave with intent to steal
body, etc., or wantonly mutilating body, is punishable by fine or
imprisonment (Code, secs. 4,023, 4,028).

Coroner, or in his absence justice of the peace, to hold inquest and
direct examination of body by surgeon, etc. (Code, sec. 4,801 _et
seq._).


ARIZONA.

Mutilation, etc., of dead body is a felony (Pen. Code, sec. 491).

Removal of a part of body unlawfully is punishable (Pen. Code, sec.
492).

Duty of burying body is, if a married woman, on husband; if not
a married woman, on nearest of kin who is an adult possessed of
sufficient means. If deceased has no relatives, on coroner holding
inquest or overseers, etc., of poor (Pen. Code, sec. 493).

Refusal of one on whom duty of burial is imposed by law, is punishable
(Pen. Code, sec. 494).

Arrest or attachment of a dead body is a misdemeanor (Pen. Code, sec.
496 _et seq._).

Coroner to hold inquest and direct autopsy (Pen. Code, sec. 2,309 _et
seq._).

Person whose duty it is to bury is entitled to custody except where
coroner holds it until inquest is completed (Pen. Code, sec. 495).


ARKANSAS.

Bodies of persons dying in alms-house, prison, house of correction, or
jail shall be surrendered to a physician for dissection, etc., unless
the deceased request to be buried or the body is claimed by relatives,
or unless deceased died suddenly and unknown; and after such use for
dissection it shall be decently buried (R. S., sec. 2,552).

Removal of dead body for the purpose of dissection, or stealing, or
from wantonness, or receiving same knowing it to have been unlawfully
disinterred, is a misdemeanor (R. S., secs. 1,902, 1,903).

Dead body can be transported out of county in which death occurred on
permit of State board of health (R. S., sec. 480).

Coroner to hold inquest and direct autopsy, etc. (R. S., sec. 692).

And may order a body to be disinterred for inquisition (R. S., sec.
718).


CALIFORNIA.

Removal, mutilation, or disinterment of dead body without authority of
law is a felony (Pen. Code, sec. 290).

Removal of part of body for sale, dissection maliciously or wantonly is
punishable (Pen. Code, sec. 291).

_Duty of Burial._—Of married woman, on husband; not a married woman,
nearest of kin who is an adult with sufficient means; where no
relatives, on coroner who held the inquest or overseers, etc., of poor
(Pen. Code, sec. 292).

Refusal to bury by person on whom duty rests by law to bury, is a
misdemeanor and he is liable for treble the expenses (Pen. Code, sec.
293).

Custody of body is on him on whom duty to bury is imposed by law,
except where coroner detains remains for inquest (Pen. Code, sec. 294).

Arrest or attachment of dead body for any debt or demand is a
misdemeanor (Pen. Code, sec. 295).

One who disinters or exhumes a body without permit of board of health,
health officer, or mayor, or transports such exhumed remains through
streets of town, city, etc., except in a sealed coffin, guilty of a
misdemeanor (Laws, 1878, ch. 673).

A sheriff, coroner, or keeper of county poor-house, public hospital,
county jail, or State prison, etc., must surrender bodies of those who
are to be buried at public expense, to any physician or surgeon for
dissection, etc., unless deceased during his last sickness requested
to be buried or body is claimed by relatives, etc., or deceased was a
stranger or traveller, died suddenly (Pen. Code, sec. 3,094).

Coroner to bury body when no other person takes charge of same (Pen.
Code, sec. 4,286).

Coroner to hold inquest, direct autopsy, and may exhume (Pen. Code,
see. 1,510).


COLORADO.

Concealment of death of issue which, if born alive, would be a bastard,
is punishable (Mill’s Stat., sec. 1,195).

Body of criminal executed for capital offence shall be delivered to
a physician or surgeon unless claimed by relative or friend (Mill’s
Stat., sec. 1,204).

Board of health, mayor, etc., or officer, etc., having control of any
alms-house, prison, hospital, jail, etc., shall surrender bodies to be
buried at public expense to any physician or surgeon for dissection,
etc., unless deceased during last illness requested to be buried, or
body is claimed by relatives or friends, or deceased was a stranger or
traveller who died unknown (Mill’s Stat., secs. 1,547, 1,548).

Non-resident poor person to be decently buried (Mill’s Stat., sec.
3,391).

Coroner to hold inquest, etc., or, if none, bury it decently at expense
of county (Mill’s Stat., secs. 870-882).

Removal of body unlawfully for sale, dissection, etc., punishable
(Mill’s Stat., sec. 1,367).

Board of health may direct removal of dead bodies from cemetery within
a city (Laws, 1893, ch. 113, sec. 54).


CONNECTICUT.

No body shall be buried or disinterred or removed beyond limits of
any town unless a permit is obtained, and where deceased died of an
infectious disease body shall be in a hermetically sealed case (Gen.
Stat., secs. 106, 108, 113).

Custody of remains is in husband or wife or next of kin (Gen. Stat.,
sec. 536).

Coroner to hold inquest, etc. (Gen. Stat., secs. 2,005, 2,008). And
deliver body to friends or, if none, to town authorities for burial
(Gen. Stat., sec. 2,015).

Mayor, etc., may deliver bodies of those not buried within twenty-four
hours after death to medical college for dissection, etc., unless
relatives or friends do not consent, or deceased requested to be
buried, or was a stranger or traveller (Gen. Stat., sec. 1,729).

Bodies of convicts dying in State prison and not having any known
relatives, shall be delivered to medical institution of Yale College
(Gen. Stat., sec. 1,732).

Body of one dying in a hospital shall not be examined unless father,
etc., consent, or if none, within forty-eight hours after death (Gen.
Stat., sec. 1,735).

Removal of body from grave unlawfully, or receiving, secreting, or
dissecting same, is punishable (Gen. Stat., 1880).

Body of executed criminal shall be buried by sheriff (Gen. Stat., sec.
1,640).


DELAWARE.

Coroner to hold inquest, etc., or may cause body to be disinterred (R.
L., ch. 33).

Removal of body from grave unlawfully, a misdemeanor (Laws, 1883, ch.
204).


FLORIDA.

Buying, selling, or having possession for purpose of buying or selling,
a dead body is punishable (R. L., sec. 2,625).

Concealing birth of issue which, if born alive, would be a bastard, is
punishable (R. L., sec. 2,393).

Coroner to hold inquest, etc. (R. L., secs. 3,011, 3,019).


GEORGIA.

Coroner to hold inquest or to disinter same for inquisition (Code,
secs. 590, 591, 410 _et seq._).

Public officers and their assistants, and their deputies of every
county, city, town, or other municipality, or of every prison, chain
gang, penitentiary, county morgue, public hospital, having control
of dead body to be buried at public expense (not dying of infectious
disease) shall deliver same to medical college for dissection, etc.,
unless claimed by friends or relatives or such friends or relatives
request same to be buried, or unless deceased was a stranger or
traveller (Laws, 1887, vol. 2, p. 77).

Removal of body from grave, etc., unlawfully for dissection or sale is
felony, or receiving or purchasing it knowing it to have been so taken,
or trafficking in dead bodies, or having them conveyed without the
State for sale, etc., is a felony (Laws, 1882, vol. 2, p. 87).


IDAHO.

Coroner to hold inquest, etc., and may exhume it for that purpose (R.
L., sec. 8,377).

Coroner to bury body decently when not claimed by relatives, etc., and
if necessary, at expense of county (R. L., sec. 2,081).


ILLINOIS.

Removal of body unlawfully or aiding in such removal is punishable as a
felony—one to ten years (S. & C. Am. Stat., vol. 1, p. 794).

Coroner to hold inquest, etc. (S. & C. Am. Stat., vol. 1, p. 606).

And to deliver body to friends or bury decently if no friends claim it,
if necessary at county expense (S. & C. Am. Stat., vol. 1, p. 606).

Body of executed criminals may be delivered to any physician or surgeon
for dissection unless friends object (S. & C. Am. Stat., vol. 1, p.
869; Crim. Code, sec. 503).

In cities and counties where population exceeds one hundred thousand,
superintendents of penitentiaries, wardens of poor-houses, coroner,
city undertaker, having body required to be buried at public expense,
may deliver remains to medical college or any physician or surgeon for
dissection, unless claimed by relatives (S. & C. Am. Stat., vol. 3, p.
867).


INDIANA.

Removal of dead body or part of same unlawfully is a felony (R. L.,
sec. 2,165).

Concealment of body or part thereof, which has been unlawfully used for
dissection, is a felony (R. L., sec. 2,167).

Receiving or buying a body knowing it to have been unlawfully
disinterred is a felony (R. L., sec. 2,168).

Dead body of one dying in a State, city, or county prison or jail,
or county asylum or infirmary or public hospital, or dead body of an
executed criminal, or dead body of a vagrant, or one killed while
committing a felony or escaping from prison or officers, may be
delivered to the faculty of a medical college in State for dissection,
etc., unless deceased requested to be buried or body is claimed by next
of kin (R. L., sec. 4,258 _et seq._).

Dissecting or possessing body for dissection except as prescribed by
law is a felony (R. L., sec. 4,271).

Coroner to hold inquest, etc. (R. L, secs., 5,878, 5,879).


IOWA.

Coroner to hold inquest, etc. (McCl. Am. Code, sec. 487).

To bury body decently at expense of county, if necessary, or deliver it
to relatives (McCl. Am. Code, sec. 501).

Removal, etc., of dead body unlawfully, or aiding such removal or
knowingly receiving body so removed, etc., is punishable (McCl. Am.
Code, sec. 5,328).

Coroner, undertaker, superintendent of public asylum, hospital,
poor-house, or penitentiary, may deliver body to medical college or
physician for dissection, etc., unless relatives, etc., refuse or
deceased desired to be buried (McCl. Am. Code, sec. 5,329).

Bodies of those executed, or dying in hospitals or prisons under
sentence for crime, shall be delivered to medical college or
association or any physician or surgeon for dissection, etc., unless
relatives or friends do not consent, or body shall have been interred,
or is not claimed by relatives, or deceased expressed a wish to be
buried, and after such use the remains shall be interred (Gen. Stat.,
sec. 3,758).

State board of health shall issue permits for transportation of bodies
beyond county where death occurred (Gen. Stat., sec. 6,030).


KANSAS.

Coroner to hold inquest, etc. (Gen. Stat., secs. 1,780, 1,794).

To bury body if not claimed by friends, etc., and at public expense, if
necessary (Gen. Stat., sec. 1,792).

Removal of a body unlawfully for dissection or wantonly, or receiving
body knowing it to have been so removed, is a misdemeanor (Gen. Stat.,
sec. 2,372 _et seq._).


KENTUCKY.

Coroner to hold inquest, etc. (Gen. Stat., ch. 25, secs. 3, 11).

To bury the body or deliver to friends (Gen. Stat., ch. 25, sec. 6).

Body of one dying on a steamboat, or other craft, if not claimed by
friends, shall be buried by master or officer in command on shore, at
least four feet deep (Gen. Stat., ch. 29, art. 17, sec. 15).

Removal of body unlawfully from grave is punishable (Gen. Stat., ch.
29, art. 17, sec. 16).


LOUISIANA.

Coroner shall hold inquest, etc., and bury body when not claimed by
friends (Voorh. Rev. L., secs. 653, 660).


MAINE.

Coroner to hold inquest, etc. (R. L., ch. 139, sec. 1).

To bury the body at State or town expense (R. L., ch. 139, sec. 11).

Seizure of body on execution, punishable (R. L., ch. 124, sec. 26).

Removal, etc., of body unlawfully, or receiving it knowingly, or
exposing, etc., body, is punishable (R. L., ch. 124, sec. 27).

Bodies may be buried and the expense recovered from the town (R. L.,
ch. 24, sec. 34).

If any resident request or consent that his body be delivered to a
physician or surgeon for dissection, it may be so delivered, unless
kindred or family connection objects (R. L., ch. 13, sec. 1).

Body of criminal dying in State prison or jail, or who was executed,
may be delivered to medical college or physician, etc., for dissection,
unless deceased or kindred request to be buried (R. L., ch. 13, sec. 2).

Body of person dying in the State, which is not claimed by relatives,
notice having been given, shall be delivered to medical school unless
ten voters of the town object to such disposition in writing (Laws,
1893, ch. 254).


MARYLAND.

Coroner to hold inquest, etc. (Md. Code, art. 22, secs. 3, 4).

Shall bury the body when necessary at public expense (Md. Code, art.
22, sec. 7).

Removal, etc., from graveyard, etc. (except potter’s field), of a body
is a misdemeanor (Md. Code, art. 27, secs. 133, 134).


MASSACHUSETTS.

Medical examiners shall hold inquest, etc. (Pub. Stat., ch. 26, secs.
10, 11).

And shall deliver it to relatives or friends, or if no one claims it,
to overseer of poor etc., for burial (Laws, 1887, ch. 310).

Body shall not be buried in city or town or removed therefrom without a
permit (Laws, 1888, ch. 306).

Body of one dying of infectious disease shall not be transported
without permit, and only in a sealed case (Laws, 1883, ch. 124, sec. 2).

Body shall not be cremated without permit and inquest by medical
examiner, or within forty-eight hours after death, unless death was
occasioned by contagious disease (Laws, 1885, ch. 265, sec. 4).

Overseers of poor, mayor and alderman of city, or superintendent of
State alms-house, may deliver body of person required to be buried at
public expense, to any physician or surgeon or medical college unless
deceased requested to be buried, or relative request burial or claim
it, or deceased was a stranger or traveller (Laws, 1891, ch. 185).

Body of criminal executed shall be delivered for dissection to a
medical college if requested; if not, to friends or relatives, or, if
none, to any physician or surgeon (Pub. Stat., ch. 202, sec. 8).

Removal of body unlawfully from grave is punishable, or buying,
selling, or possessing for such purpose, is punishable (Pub. Stat., ch.
207, secs. 47, 48).

Concealing birth of child which, if born alive, would be a bastard, is
punishable (Pub. Stat., ch. 207, sec. 11).

Seizing dead body on execution is punishable (Pub. Stat., ch. 207, sec.
46).

Body of a prisoner shall be buried by sheriff at town expense if not
claimed by relatives or friends (Pub. Stat., ch. 220, sec. 31).


MICHIGAN.

Justice of the peace to hold inquest, etc. (How. Am. Stat., vol. 2,
sec. 9,583 _et seq._).

And shall bury the body at the State or town expense (How. Am. Stat.,
vol. 3, sec. 9,593).

Woman concealing death of issue which, if born alive, would be a
bastard, is punishable (How. Am. Stat., vol. 3, sec. 9,284).

Board of health, officers, sheriff, etc., of any prison, etc.,
poor-house, alms-house, having body required to be buried at public
expense, shall, if not claimed by relatives, or if it have died of any
infectious disease, deliver it to University of Michigan, etc., for
dissection, etc. (How. Am. Stat., vol. 3, sec. 2,284).

Body shall not be shipped out of State nor used in State for any
purpose but anatomical study (How. Am. Stat., vol. 3, sec. 2,286).

Removal of body unlawfully is punishable (How. Stat., vol. 2, sec.
9,297).


MINNESOTA.

Gen. Stat., secs. 6,220, 6,230, same as N. Y. P. C., secs. 305-315.

Concealing birth of child which died before or after birth is a
misdemeanor (Gen. Stat., sec. 6,210).

Coroner to hold inquest, etc. (Gen. Stat., sec. 1,011 _et seq._).

And cause body to be buried at expense of county (Gen. Stat., sec.
1,021).

Section 6,216, same as 303, N. Y. P. C.

Body must be buried within four days, and if death was from contagious
disease, within twenty-four hours and in a tightly sealed coffin which
must not be reopened (Gen. Stat., sec. 607).

Wardens, superintendents of poor, and other persons having control of
bodies shall deliver same to medical college committee, for dissection,
unless claimed by relatives or friends, or relatives or friends do
not consent, or one detained as a witness or on suspicion of having
committed a crime, or deceased requested to be buried (Gen. Stat., sec.
678).


MISSISSIPPI.

Body of paupers and strangers to be buried (Am. Code, secs. 3,145,
3,146).

Coroner to hold inquest, etc. (Am. Code, sec. 816).

Removal of body unlawfully and wantonly, for sale or receiving same, is
punishable (Am. Code, secs. 1,023, 1,024).


MISSOURI.

Coroner to hold inquest, etc. (R. L., sec. 2,438 _et seq._).

And shall bury the body, if not claimed by friends, at public expense
(R. L., sec. 2,456).

And may direct a chemical analysis and microscopical examination of
body (R. L., sec. 2,469).

Superintendents or wardens of penitentiary, houses of correction,
insane asylums, poor-houses, and coroners, sheriffs, city and county
undertakers, having charge of a body required to be buried at public
expense, shall deliver the same to medical college for dissection
unless claimed by relatives or friends, and trafficking in such bodies
is a misdemeanor (R. L., sec. 6,883 _et seq._).

Concealing birth of child, so that it may not be known whether it was
born alive or dead, is a felony (R. L., sec. 3,479).

Removal of dead body from grave without authority (except that of
criminal executed for crime), for purpose of sale, etc., or receiving
such body knowingly, is a felony (R. L., secs. 3,842, 3,845).


MONTANA.

Concealing birth of child which, if born alive, would be a bastard, is
punishable (Crim. Laws, sec. 41).

Coroner to hold inquest, etc. (Gen. Laws, secs. 869, 883).

And bury body at public expense if not claimed by relatives, etc. (Gen.
Laws, sec. 881).

Removal, etc., of dead body from grave without authority, and for the
purpose of sale or dissection, or from wantonness, is a felony (Laws,
1889, p. 114).


NEBRASKA.

Coroner to hold inquest, etc. (Consol. Stat., sec. 3,130 _et seq._).

To bury body if not claimed by friends (Consol. Stat., sec. 3,144).

Removal of body from grave without authority for sale, dissection,
etc., is punishable (Consol. Stat., sec. 5,847).

Fœticide is punishable (Consol. Stat., sec. 5,582).

Bodies of paupers or criminals unclaimed by friends or relatives may
be delivered to medical college or physician for dissection, etc., and
such body shall not be transported out of State (Consol. Stat., secs.
3,299, 3,301, 5,848).


NEVADA.

Justice of peace to hold inquest, etc. (Gen. Stat., sec. 2,256 _et
seq._).

And cause the body to be buried at public expense (Gen. Stat., sec.
2,269).

Body shall not be buried without certificate of physician or coroner
(Gen. Stat., sec. 4,872 _et seq._).

Body shall not be transported out of State without a permit (Gen.
Stat., secs. 4,870, 4,871).

Concealing birth of child which, if born alive, would be a bastard, is
punishable (Gen. Stat., sec. 4,597).

Non-resident, _et al._, to be buried at public expense (Gen. Stat.,
sec. 1,986).


NEW HAMPSHIRE.

Coroner to hold inquest, etc. (Pub. Stat., ch. 262, sec. 1 _et seq._).

And bury body if a stranger, at public expense (Pub. Stat., ch. 262,
sec. 16).

Concealing birth of child which, if born alive, would be a bastard, is
punishable (Pub. Stat., ch. 278, sec. 14).

Body of person dying in a county, city, or town, or State prison or
jail, required to be buried at public expense, shall be delivered to
any physician or medical college for dissection, etc., unless deceased
requested to be buried, or friends claimed it or request burial, or
deceased was a stranger or traveller who died suddenly (Pub. Stat., ch.
136).

Body not to be buried without permit or disinterred (Pub. Stat., ch.
173, sec. 6).

Removal of dead body without authority, or concealing it, knowing it to
have been so dug up, is punishable (Pub. Stat., ch. 266, sec. 7).


NEW JERSEY.

Coroner to hold inquest, etc. (Rev. Stat., p. 170 _et seq._).

And bury body if not claimed by friends (Rev. Stat., p. 170, sec. 5).

Concealing birth of child which, if born alive, would be a bastard, is
a misdemeanor (Rev. Stat., p. 241, sec. 83).

Body of executed criminal may be delivered to physician, etc., for
dissection unless claimed by relatives (Rev. Stat., p. 239, sec. 69).

Removal of a body without authority for sale, dissection, etc., is a
high misdemeanor (Rev. Stat., p. 249, sec. 122).

Exposing body of an executed murderer is a misdemeanor (Supp. Rev.
Stat., p. 194, sec. 19).

Body must not be buried without a permit; nor body brought into the
State without permit; nor taken out of State without permit (Laws,
1888, ch. 39, secs. 5-8).


NEW MEXICO.

Justice of the peace to hold inquest, etc. (Comp. Laws, sec. 443 _et
seq._).

And bury the body (Comp. Laws, sec. 447).

Body of one dying of a contagious disease shall not be carried in an
open coffin, or be exposed (Laws, 1889, ch. 79, sec. 8).

Body shall not be buried within fifty yards of running stream (Laws,
1891, ch. 93).


NEW YORK.

Duty of burial, etc. (Pen. Code, sec. 305 _et seq._).

Attempt at sexual intercourse with dead body is a crime against nature
(Pen. Code, sec. 303).

Transfer of body of one who died of a contagious or infectious disease
shall be in hermetically sealed casket (Laws, 1893, ch. 661, sec. 23).

Bodies of those dying in, or in custody of managers, etc., of any
prison, asylum, morgue, hospital, or in possession of undertakers,
shall be delivered to medical college of this State, etc., for purpose
of medical study, unless claimed by relatives or friends, or friends or
relatives do not assent to such disposal, or deceased requested during
last illness to be buried (Laws, 1893, ch. 661, sec. 207).

In certain cases bodies of convicts, unless claimed, shall be delivered
to certain medical colleges (R. S., pt. 4, ch. 3, secs. 132, 133).

District attorney may cause body to be exhumed, examined, etc. (Pen.
Code, sec. 308).


NORTH CAROLINA.

Coroner to hold inquest, etc. (Code, sec. 657).

Concealing birth of child, by burying dead body, is a misdemeanor.
Opening grave without authority for purpose of taking body is a felony
(Laws, 1885, ch. 90).

Coroner may order a chemical analysis of remains (Laws, 1887, ch. 269).

Dead body of convict, unclaimed by friends, shall be delivered to
medical college except such dying of contagious disease (Laws, 1891,
ch. 129).

Body of one dying of contagious disease must not be transported by
common carrier until disinfected, nor shall permit for removal be
issued until such disinfection (Laws, 1893, ch. 214, sec. 16).


NORTH DAKOTA.

Coroner to hold inquest, etc. (Comp. Laws, sec. 664 _et seq._).

And bury the body if not claimed by friends, etc. (Comp. Laws, sec.
676).

Concealing birth of child which, if born alive, would be a bastard, or
of child dying within two years after birth, is punishable (Comp. Laws,
sec. 6,947).

  COMP. LAWS.

  Sec. 6,549 same as 305 N. Y. P. C.
   ”   6,550    ”    306       ”
   ”   6,551    ”    307       ”
   ”   6,552    ”    308 (1-3) ”
   ”   6,553    ”    309       ”
   ”   6,554    ”    310       ”
   ”   6,559    ”    311       ”
   ”   6,560    ”    312       ”
   ”   6,563    ”    314       ”

Duty of burial of married woman, on husband. If not married woman, on
nearest of kin who is an adult or has means sufficient (Comp. Laws,
sec. 6,556).

Refusal to bury by one on whom duty is imposed by law, a misdemeanor
(Comp. Laws, sec. 6,557).

Custody of body pertains to one whose duty it is to bury (Comp. Laws,
sec. 6,558).

When cemetery is by law changed to other place, duty is on relative to
move body (Comp. Laws, sec. 6,562).

Body of executed criminal, and those dying in State penitentiary or
county jail under sentence, shall be delivered to medical college or
any physician for dissection, unless deceased requested to be buried,
or friends ask to have it buried, or deceased was a stranger or
traveller (Laws, 1890, ch. 92).


OHIO.

Coroner to hold inquest, etc. (R. L., sec. 1,221 _et seq._).

And bury body, etc. (R. L., sec. 1,227).

Body of pauper or unknown, not an inmate of any penal, charitable, or
reformatory institution, and not claimed by relative or delivered for
dissection according to law, shall be buried at public expense (Laws,
1890, p. 283).

Corpse shall not be conveyed to or from a city without a permit (R. L.,
sec. 2,119).

Bodies of those dying in city hospitals, city or county infirmaries,
work-houses, asylums, charitable institutions, penitentiaries, or
jails, which are required to be buried at public expense, shall be
delivered to medical college or society for study, etc., unless claimed
by relative, or deceased was a stranger or traveller (except tramps)
(R. L., sec. 3,763).

Removing body from grave without authority for dissection or receiving
such body is punishable (R. L., sec. 7,034).

Body of executed criminal, if not claimed by relative or friends, may
be delivered for dissection, etc. (R. L., sec. 7,343, 1).


OKLAHOMA.

Coroner to hold inquest, etc. (Stat., sec. 1,745 _et seq._).

And bury the body at public expense if not claimed by relatives (Stat.,
sec. 1,759).

Concealing birth of issue which, if born alive, etc., or dying within
two years after birth, is punishable (Stat., sec. 2,179).

  2,188-2,190 same as 305-307 N. Y. P. C.
  2,191          ”    308          ”      (except subd. 4)
  2,192-2,193    ”    309-310      ”
  2,198          ”    311          ”      (ex. punishment)
  2,199          ”    312          ”
  2,202          ”    314          ”

Custody is in him whose duty it is to bury (Stat., secs. 21, 97).

Duty of burial of married woman, on husband; if not married woman, on
nearest of kin who is an adult and has sufficient means (Stat., sec.
2,195).

Refusal to bury by one on whom duty rests, is a misdemeanor (Stat.,
sec. 2,196).


OREGON.

Coroner to hold inquest, etc. (Crim. Code, sec. 453 _et seq._).

And bury body if not claimed by friends (Crim. Code, sec. 462).

Unmarried woman concealing birth of child so that it may not be known
whether it was born alive or not, is punishable (Crim. Code, sec. 649).

Bodies of criminals executed, those dying in hospitals, insane asylums,
alms-houses, or penitentiaries, may be delivered to medical college or
physician for dissection, etc., unless they shall have been interred,
or claimed by relatives, or relatives and friends do not consent, or
deceased expressed a wish to be buried; and they shall be used for such
purpose only and in this State (Hill’s Am. Laws, sec. 3,730 _et seq._).

Removal of body without authority, etc., is punishable (Crim. Code,
sec. 656).


PENNSYLVANIA.

Coroner to hold inquest in Philadelphia County only in case of a
violent death (Bright Pen. Dig., 1536, sec. 37).

And may in Berks and Lancaster Counties order a post mortem (Bright
Pen. Dig., 1536, sec. 38).

Concealing death of child which, if born alive, would be a bastard, is
punishable (Bright Pen. Dig., 431, sec. 158).

Removal of body from grave without authority is a misdemeanor (Bright
Pen. Dig., 229, sec. 11).

Bodies of those dying in alms-house, hospital, prison, or public
institution, or those in morgue, which are required to be buried at
public expense, shall be delivered to medical college, physician, etc.,
to be used for scientific purposes only, unless claimed by relatives
or deceased was a traveller, and trafficking in such bodies is a
misdemeanor (Bright Pen. Dig., p. 9, sec. 1 _et seq._).


RHODE ISLAND.

Concealing death of child which, if born alive, would be a bastard, so
that it may not be known, etc., is punishable (Pub. Stat., ch. 244,
sec. 8).

Seizing dead body under execution is punishable (Pub. Stat., ch. 223,
sec. 2).

Bodies of those dying in jail shall, if not claimed by relatives, be
buried at public expense (Pub. Stat., ch. 201, sec. 30).

Medical examiner to make autopsy (Pub. Stat., 1884, ch. 420).

And bury body of stranger at State expense if necessary (Pub. Laws,
1884, ch. 420, sec. 24).

Coroner to hold inquest if, in opinion of medical examiner, death was
caused by act of some one other than deceased (Pub. Laws, 1884, ch.
420, sec. 17).


SOUTH CAROLINA.

Coroner to hold inquest, etc. (R. L., secs. 711, 2,664 _et seq._).

And may have body disinterred for inquisition (R. L., sec. 2,687).


TENNESSEE.

Coroner to hold inquest, etc. (Code, sec. 6,139 _et seq._).

And may order a chemical analysis of remains, etc. (Code, sec. 6,150).

Body to be buried, if not claimed by relatives, etc., at public expense
if necessary (Code, sec. 6,160).

Wilfully and improperly exposing or abandoning a dead body is a
misdemeanor (Code, sec. 5,658).

Removing or purchasing dead bodies without authority is a misdemeanor
(Code, secs. 5,659, 5,660).

Body of deceased convict to be buried unless claimed by friends (Code,
sec. 6,402).


TEXAS.

Justice of the peace to hold inquest, etc. (Code Crim. P., art. 988 _et
seq._).

And may disinter the body for such inquisition (Code Crim. P., art.
989).

Removal, etc., of dead body from grave without authority is punishable
(Code, art. 345).

Bodies of convicts to be buried (Rev. C. Stat., art. 3,561).


VERMONT.

Justice of the peace to hold inquest, etc. (Rev. Laws, sec. 3,934 _et
seq._).

Removal, etc., of dead body without authority, is punishable (Rev.
Laws, secs. 4,194, 4,196).

Bodies of those dying in poor-house or other public institution, which
are required to be buried at public expense, may be delivered to any
physician for dissection, etc., unless deceased requested to be buried,
or friends or relations request burial, or deceased was a stranger or
traveller. Such body shall not be removed from State, and shall be used
for scientific purposes only (Laws, 1884, ch. 85).


VIRGINIA.

Coroner to hold inquest, etc. (Code, sec. 3,938 _et seq._).

And to bury the body at public expense (Code, sec. 3,946).

Removal, etc., of dead body from grave without authority, is punishable
(Code, sec. 3,794).

Bodies of those dying on vessels in State, shall be buried by master on
the shore above high-water mark (Code, sec. 2,002).

Bodies of those dying in alms-house, prison, morgue, hospital, jail,
or other public institution, which are required to be buried at public
expense, and bodies of criminals executed for crime shall be delivered
to medical college, etc., and physician or surgeon for anatomical
study, unless (except criminals) relatives and friends claim the body
or deceased was a stranger or traveller; and such bodies shall not be
sent out of the State (Code, ch. 80).


WASHINGTON.

Coroner to hold inquest, etc. (Hill’s Am. Stat., vol. 1, sec. 245 _et
seq._).

And bury body, if not claimed by friends, at public expense (Hill’s Am.
Stat., vol. 1, sec. 257).

Bodies of those dying in poor-house, public hospital, county jail,
State prison, etc., which are required to be buried at public expense,
shall be delivered to medical college, physician, surgeon, etc., for
study, unless deceased requested to be buried, or it is claimed by
friends or relatives, or deceased was a stranger or traveller; and such
body shall be used only in the State (Hill’s Am. Stat., vol. 1, sec.
2,428 _et seq._).

Removal, etc., of body from the grave without authority is punishable
(Pen. Code, sec. 208).


WEST VIRGINIA.

Coroner to hold inquest, etc. (Code, ch. 154).

And bury the body at public expense, or if of a stranger, may forward
it to its destination or bury it (Code, ch. 154, sec. 8).

Removal, etc., of a body from grave is punishable (Code, ch. 149, sec.
13).


WISCONSIN.

Justice of the peace or coroner to hold inquest, etc. (S. & B. Am.
Stat., ch. 200).

And shall cause the body to be buried at public expense (S. & B. Am.
Stat., ch. 200, sec. 4,877).

Dead body of convict shall, if not claimed by relatives or friends, be
buried (S. & B. Am. Stat., sec. 4,926).

Removal, etc., of body from grave without authority is punishable (S. &
B. Am. Stat., sec. 4,592).

Concealing death of child which, if born alive, would be a bastard, is
punishable (S. & B. Am. Stat., sec. 4,585).

A public officer having in his charge a body required to be buried at
public expense, shall deliver same to member of State or county medical
society, etc., for anatomical study, unless claimed by relatives, or
they consent to such disposal, or deceased requested to be buried, or
was a stranger or traveller (S. & B. Am. Stat., sec. 1,437).



  THE POWERS AND DUTIES

  OF

  CORONERS AND MEDICAL EXAMINERS.

  BY

  AUGUST BECKER,
  _Of the Buffalo (N. Y.) Bar_.



  THE POWERS AND DUTIES

  OF

  CORONERS AND MEDICAL EXAMINERS.

  BY

  AUGUST BECKER,
  _Of the Buffalo (N. Y.) Bar_.



POWERS AND DUTIES OF CORONERS AND MEDICAL EXAMINERS.


I. THE CORONER AND HIS COURT.

_Coroner an Ancient Officer._—The office of coroner is one of the
most important and ancient known to the common law. A coroner, or
_coronator_, was so called because he had principally to do with
the pleas of the crown, or suit wherein the king was immediately
concerned.[507] The office is first mentioned in a charter granted in
the year 925 by King Athelstan, to the authorities of Beverley. The
office as at present constituted was not clearly established until
after the Norman conquest.

Under this head come the lord chief justice and puisne justices of the
King’s Bench, who are supreme and sovereign coroners respectively.[508]
The duties of the office of coroner involve questions of the greatest
interest to society, to government, and to the rights and privileges
of the individual citizen. The office has lost much of the honor and
respect which formerly appertained to it. Its character and importance
have been much diminished in latter times, making striking contrast
with the high estimation it was held in by our ancestors in days when
none but the gentry and knights of the shire were deemed eligible.

In fact so great was the dignity of this office in ancient times, that
it was never presumed that coroners would condescend to be paid for
their services.[509] They were chosen by all the freeholders of the
county court for life or good behavior, and were liable to be removed
for cause by the writ _de coronatore exonerando_. There were three
kinds of coroners at common law: _Virtute officii_; _virtute cartæ sive
commissionis_; and _virtute electionis_.[510] The office of coroner
was brought to America by the colonists along with the institutions of
the common law, and may be said to exist in the several States with all
the common-law incidents, except so far as they may have been modified
by statute. The present defined powers of coroners in Great Britain and
the United States, unless modified by British statutes and American
acts, are derived from the English Stat. de Officio Coronatoris, 4
Edward I., s. 2. Coroners _virtute officii_ and _virtute cartæ sive
commissionis_ are unknown to our institutions. Here the office of
coroner may be classed under the head of coroners _virtute electionis_.
Generally speaking the coroner is a county officer.


CORONER’S DUTIES BOTH JUDICIAL AND MINISTERIAL.

By the common law his powers and duties are both judicial and
ministerial. In his ministerial capacity he is merely a substitute for
the sheriff, as when the sheriff is a party.[511] His powers and duties
thereunder it is not the present purpose to state and define. His
judicial authority relates to inquiries into cases of sudden death, by
a jury of inquest, _super visum corporis_, or, as it is more commonly
defined, an inquisition, with the assistance of a jury, over the body
of any person who may have come to a sudden or violent death, or who
may have died in prison.[512] It is not necessary that the death should
be both violent and sudden, and that both these circumstances must
concur to give the coroner jurisdiction. It is sufficient to give the
coroner jurisdiction if the death occurs from any violence done to
a person by another, although such violence may not have terminated
the life of a party suddenly, and it is still the duty of the coroner
to hold an inquest.[513] Indeed the presumption is that he has acted
in good faith and on sufficient cause.[514] And so when several
persons have been suddenly killed by the same violent cause, under
circumstances proper to be inquired of by a coroner’s inquest, it is
proper and necessary for the coroner, acting in good faith, to hold a
separate inquest over each body.[515] A coroner’s inquest is a judicial
investigation. The coroner cannot delegate his authority to any one.
Neither can he appoint a deputy under the common law. He must act in
person as any other judicial officer; and it may safely be said that a
coroner has no power to appoint a deputy coroner, except where special
provision is made therefor by statute.[516] In England, a coroner’s
court is a court of record, and it has accordingly been held that
trespass cannot be maintained for turning a person out of a room where
the coroner is about to take an inquisition.[517] But in this country,
it may safely be said that a coroner’s court is not one of record,
but of inferior jurisdiction.[518] The performance of the functions
of a coroner are judicial in their character; so judicial that he is
protected under the principles which protect judicial officers from
responsibility in a civil action brought by a private person. His
proceedings amount to entries concerning matters of public interest,
made under the sanction of an official oath, and in compliance or
presumed compliance of the law.[519]

_Of his Authority to Hold an Inquest._—His authority to hold an
inquest is not confined to the body of a person who may have died
within his territorial jurisdiction, but extends to all bodies
brought within his jurisdiction, no matter where death may have taken
place.[520] So in any case where, after burial, an inquest becomes
necessary to determine the manner of the death of a person who, dying
in one, is buried in another county, the coroner of the latter county
is the proper officer to hold the inquest.[521] A coroner cannot hold
a second inquest while the first is existing. As we have seen, in
holding an inquest the coroner performs a judicial duty, and he is
_functus officio_ as soon as the verdict has been returned. He can hold
no second inquest in the same case unless the first has been quashed
by a court of competent jurisdiction, and a new inquiry ordered. He
cannot set aside or quash his own inquest. If he were allowed to hold
two inquests, not only might the greatest inconvenience arise from the
inconsistent findings of the respective juries, but such a practice
would be liable to great abuse, and as the object of the proceeding is
merely preliminary, the main purpose being to ascertain whether it is
probable that a crime has been committed, and to examine the facts and
circumstances and preserve the evidence, all the ends of this inquiry
are answered by one inquisition, _super visum corporis_. We believe no
reported case is to be found in this country where a second inquisition
has been held, the first remaining undischarged, nor is any such
practice known to or recognized by our laws.[522]


THE INQUEST MUST BE HELD UPON VIEW OF THE BODY.

The coroner can in no case hold an inquest except upon view of the
body. This is jurisdictional and cannot be waived by any one. He is
not bound to hold an inquest before burial of the body takes place.
When it has been buried, and he believes an inquest necessary, he
is vested with authority to have the body disinterred and hold his
inquest, and if necessary direct a post-mortem examination to be
made, but after having done so, he must cause it to be reburied.[523]
Deep interests are involved in the proper discharge of the duties of
coroners; the character, liberty, and perhaps the life of a citizen
accused of crime on the one hand, and on the other the aiding of public
justice in establishing the guilt and securing the punishment of the
actual criminal. Many of the questions which fall within the scope
of a coroner’s inquisition are of an intricate and most perplexing
character, a correct solution of which can only be arrived at by minds
the best instructed and habituated to their investigation. In many
cases some of these questions can be satisfactorily settled by the
evidence of persons having cognizance more or less direct of the facts;
in others, however, they can only be solved by the facts deduced from
pathological anatomy, and other circumstances connected with the dead
body, the cause of the extinction of life in which is the subject of
the inquest.

_In Massachusetts Office of Coroner Abolished._—Indeed, in
Massachusetts the office of coroner was abolished in 1877, and the
governor was invested with power, and it is his duty, to appoint, by
and with the advice and consent of the council, able and discreet men,
learned in the science of medicine, to be medical examiners, whose
duties are to make examinations as provided in the statute upon the
view of the dead bodies of such persons only as are supposed to have
come to their death by violence.[524]

_Coroner may Employ Professional Skill._—A thorough examination aided
by professional skill is in general absolutely necessary to the proper
administration of justice. It would no doubt be strange if a coroner
had no authority to pledge the responsibility of the county for the
compensation of all auxiliary services which are necessary to the
proper execution of his office, and which he can by no other means
command; for instance, when his duty requires him to disinter a body,
he cannot be expected to do it with his own hands, or by hands paid
for with his means. Indeed it has been said that, in this enlightened
age, a coroner who would consign to the grave the body over which he
had held an inquest, without availing himself of the lights which the
medical science has placed within his reach, would in most cases fall
short of what his official duty requires.[525] It is the generally
accepted view of the law now that it is the duty of a coroner holding
an inquest _super visum corporis_ to avail himself of professional
skill and aid, and his contract will bind the county to the payment of
a reasonable compensation for making a post-mortem examination.[526]


POST-MORTEM EXAMINATION.

Whether such examination should take place before the coroner has
empanelled a jury seems to be an open question. We would venture the
opinion that it should not, inasmuch as the jury ought to see and
view the body in the same condition, as near as may be, as it was
when found, and not after it has been mutilated, as it must need be
by a post-mortem examination. It is, however, settled that the post
mortem should not be in the presence of the jury, and that they are to
be instructed by the testimony of the physicians who are designated
by the coroner to make the examination.[527] The coroner’s right to
dissect the dead body of a human being does not extend to all cases.
Such a power could be wielded with the most injurious effects upon a
community. His power to dissect is confined to those cases where he is
authorized by law to hold an inquest upon the body. But a post-mortem
examination, conducted by surgeons employed by a coroner holding an
inquest, is not a part of the inquest in such a sense as that every
citizen has a right freely to attend it. At common law it was essential
to the validity of a coroner’s inquisition that the jury should view
the body. And so is our law. But it was never required that the body
should be dissected in any case. It is discretionary with the coroner
to cause a dissection to be made, and to select the surgeons. He has
also a discretion to determine whether any person, and what persons,
may be present besides the surgeons. Not even the jurors have a
right to witness the examination. They are to be informed of what it
discloses by the testimony of the surgeons. Indeed, no person has a
right to be present at the post-mortem examination upon the ground that
he is suspected of having caused the death. He loses no legal right by
being excluded. He has no right to dissect the body. If the coroner’s
jury pronounce him guilty, the inquest, like the indictment of a grand
jury, simply makes him liable to arrest.[528]


MASSACHUSETTS STATUTORY PROVISIONS.

The statute law of Massachusetts has already been referred to. It
has abolished the office of coroner and in its place put medical
examiners, so called, who are presumed to be learned in the science
of medicine. Their powers, however, are not co-extensive with those
of coroners. A medical examiner cannot hold an inquest. He cannot
hold an autopsy without being thereto authorized in writing by the
district attorney, mayor, or selectmen of the district, city, or town
where a dead body lies. He can only upon receiving notice that there
has been found, or is lying within the county, the dead body of a
person who is supposed to have come to his death by violence, repair
to the place where such body lies, view and take charge of the same.
If he deems a further examination necessary and is authorized so to
do, he must make an autopsy in the presence of two or more discreet
persons, whose attendance he may compel by subpœna if necessary, and
he must then carefully reduce or cause to be reduced to writing every
fact and circumstance tending to show the condition of the body and
the cause and manner of death, together with the names and addresses
of the witnesses. If he deems it necessary, he may employ a chemist
to aid in the examination of the body or of substances supposed to
have caused or contributed to the death,[529] the record of which
he must subscribe.[530] Such an autopsy does not, however, upon
the trial of an accused render other competent evidence, as to the
condition and appearance of the dead body at the time of the autopsy,
inadmissible.[531] The autopsy may be followed by an inquest held, not
by the examiner, but by a justice of the district, police, or municipal
court for the district or city in which the body lies, or a trial
justice. One of these functionaries must hold an inquest upon being
notified by a medical examiner that in his opinion a death was caused
by violence, and after hearing the testimony draw up and sign a report
and issue process for apprehension of a person charged by the report
with the commission of an offence, if he is not in custody.[532]
Even though a medical examiner reports that a death was not caused
by violence, and the district attorney or the attorney-general is
of a contrary opinion, either one may, notwithstanding such report,
direct an inquest to be held in accordance with the provisions of the
statute.[533]


NEW YORK’S STATUTORY PROVISIONS.

In New York the powers and duties of coroners are defined by statute.
Coroners in the city of New York are governed by a special act relating
to that city exclusively. For the State at large it is provided
that whenever a coroner is informed that a person has been killed
or dangerously wounded by another, or has suddenly died under such
circumstances as to afford a reasonable ground to suspect that his
death has been occasioned by the act of another by criminal means, or
has committed suicide, he must go to the place where the person is, and
forthwith inquire into the cause of the death or wounding, and summon
not less than nine nor more than fifteen persons, qualified by law to
serve as jurors, if such death or wounding be of a criminal nature, to
appear before him forthwith at a specified place, to inquire into the
cause of death or wound, and if it appears from the evidence taken or
during the inquisition, that any person or persons are chargeable with
the killing or wounding, or that there is probable cause to believe
that any person or persons are chargeable therewith, and if they are
not in custody the coroner must forthwith issue a warrant for the
arrest of the person or persons charged with such killing or wounding,
who must be arraigned before the coroner for examination, and the
coroner has power to commit the person or persons so arrested to await
the result of the inquisition. A coroner is disqualified from acting
as such in any case where the person killed or dangerously wounded is
a co-employee with the coroner of any person or persons, association
or corporation, or where it appears that the killing or wounding
has been occasioned, directly or indirectly, by the employer of the
coroner.[534] It is further provided that whenever a convict shall
die in any State prison, it shall be the duty of the inspector having
charge of the prison and of the warden, physician, and chaplain of the
prison, if they or either of them shall have reason to believe that
the death of the convict arose from any other than ordinary sickness,
to call upon the coroner having jurisdiction to hold an inquest upon
the body of such deceased convict.[535] The New York Criminal Code
further provides that when six or more of the jurors appear, they must
be sworn by the coroner to inquire who the person was, and when, where,
and by what means he came to his death or was wounded as the case may
be, and into the circumstances attending the death or wounding, and
to render a true verdict thereon according to the evidence offered to
them or arising from the inspection of the body.[536] The coroner may
issue subpœnas for and summon and examine as witnesses every person
who in his opinion, or that of any of the jury, has any knowledge of
the facts; and he must summon as a witness a surgeon or physician,
who must, in the presence of the jury, inspect the body, and give a
professional opinion as to the cause of the death or wounding.[537] The
jury, after inspecting the body and hearing the testimony, must render
their verdict, and certify it by an inquisition in writing, signed by
them, and setting forth who the person killed or wounded is, and when,
where, and by what means he came to his death or was wounded, and if
he were killed or wounded, or his death were occasioned by the act of
another by criminal means, who is guilty thereof, in so far as by such
inquisition they have been able to ascertain.[538] The testimony of the
witnesses examined before the coroner’s jury must be reduced to writing
by the coroner, or under his direction, and must be forthwith filed by
him, with the inquisition, in the office of the clerk of the court of
sessions of the county, or of a city court having power to inquire into
the offence by the intervention of a grand jury.[539]

If, however, the defendant be arrested before the inquisition can be
filed, the coroner must deliver it with the testimony to the magistrate
before whom the defendant is brought.[540] If the jury find that
the person was killed or wounded by another under circumstances not
excusable or justifiable by law, or that his death was occasioned by
the act of another by criminal means, and the party committing the act
be ascertained by the inquisition and is not in custody, the coroner
must issue a warrant signed by him with his name of office, for the
arrest of the person charged.[541] The coroner has power to compel
the attendance of a witness and testify, and he may punish a witness
for disobedience, as upon a subpœna issued by a magistrate.[542] The
coroner’s warrant may be served in any county; and the officer serving
it must proceed thereon, in all respects, as upon a warrant of arrest
on an information, except that when served in another county it need
not be indorsed by a magistrate of that county.[543] When the defendant
is brought before the coroner, he must proceed to examine the charge
contained in the inquisition or information, and hold the defendant to
answer, or discharge him therefrom, in all respects as upon a warrant
of arrest on an information.[544]


II. THE JURY AND INQUEST.

_Jurors Must be Sworn by Coroner._—The jurors summoned by a coroner to
attend an inquest must be from the county or jurisdiction wherein the
coroner is empowered to act. He cannot proceed with the inquest until
he has summoned and sworn the jury. The jurors are not challengeable,
and therefore they should be carefully selected and sworn by the
coroner himself. His duties are judicial and he can only take an
inquest _super visum corporis_, and an inquest in which the jury is not
sworn by himself is absolutely void and of no effect.[545]

_They Must Investigate and Determine the Facts._—After being sworn
by the coroner they must investigate and determine and are the sole
arbiters of the facts; the coroner’s duty being to instruct them in
the law. They must go, view, and examine the body together, and not
separately. It is essential to the validity of the inquest that the
jury should view the body.[546]

_Coroner may Compel Attendance of Witnesses._—When the coroner sits
to hold an inquest, he sits as a judicial officer, armed with all the
ordinary powers possessed by judicial officers. He may compel the
attendance of jurors whose qualifications are usually such as are
required of jurors in a court of record. It is his duty to present
before the jury all the material testimony within his power, touching
the death as to the manner whereof the jury are to certify, and that
which makes for as well as against the party accused. It is his duty
to summon before his inquest every person whom he has any reason to
believe possesses any knowledge relative to the death which he is
investigating. He is to summon such persons to attend before him for
examination. He has full authority to compel obedience to his subpœnas.
He has this power by the common law.[547] If a post-mortem examination
is made, the examining surgeons should testify before the jury as to
the matters disclosed by the examination.[548] The witnesses produced
must be sworn by the coroner, and their testimony reduced to writing by
him or under his direction.


RIGHTS OF ACCUSED PARTY.

The coroner is not required to take the testimony of the witnesses who
are examined before the jury in the presence of the party accused.
The accused has not the right to be represented by counsel, or to
cross-examine the witnesses.[549] He is not permitted to produce
witnesses before the coroner to show himself innocent of the crime. The
coroner is not required to examine any witnesses to establish the guilt
of such party when brought before him by virtue of process issued after
the finding of the inquisition.[550]

_Deliberation by Jury and Return of an Inquisition._—After the
evidence has been taken, and the jury instructed in the law by the
coroner, the jury should retire to deliberate upon their verdict.
During such deliberation and until they have arrived at their verdict
the coroner should not be present in the room where the jury is
deliberating. After they have agreed on their verdict it should be
reduced to writing, and the coroner is bound to accept it as final in
his court. The inquisition should then be signed by the coroner and
jury.[551] If the inquest is signed by the coroner and duly certified
by him, the jurors having signed by making their cross marks, and the
whole being certified by the coroner, his certificate of the signatures
of the jurors is sufficient and the inquisition is properly made.[552]
If several jurors on the inquest have the same christian and surname,
it is not necessary in the caption of the inquisition to distinguish
them by abode or otherwise.[553] The law requiring the coroner to make
a return of the testimony with the inquisition cannot be satisfied
short of some official certificate indicating that the witnesses named
were sworn before him, to the matter insisted on as evidence against a
prisoner. At least if there be no formal authentication, there should
be proof _aliunde_ that the memorandum presents the testimony of the
witness truly.[554]


III. THE EFFECT OF THE EVIDENCE AND VERDICT.

Under the common law formerly, a coroner’s inquisition was equivalent
to an indictment by a grand jury upon which the accused might be
tried. But in this country no person can be tried upon a coroner’s
inquisition, yet the inquisition of a coroner’s jury finding a person
guilty of murder has about the same force against him, until the
grand jury passes upon his case, that an indictment found by them has
thereafter, prior to his trial.

_Coroner has Power to Issue Process of Apprehension._—If a person is
charged with the crime in the inquisition, the coroner has power and
he issues his process for the apprehension of the accused when not in
custody solely upon the inquisition. The inquisition, though taken in
the absence of the prisoner, and upon the testimony of witnesses he
could not cross-examine, settles the question of his guilt until the
grand jury passes upon the case. It justifies the commitment of the
prisoner to jail, in the same manner that the testimony of witnesses
does taken before a justice of the peace. The coroner can only examine
the prisoner in the same manner as upon a warrant of arrest or on
information, and is not authorized to examine witnesses either against
the prisoner or for him, when he is apprehended by virtue of process
issued subsequent to the finding of the inquisition by the jury, or in
custody of the coroner without process at the time the same is found.

_Privilege of Prisoner upon Arrest._—The prisoner has the privilege
of telling his own story before the coroner, which is to be returned
with the inquisition, and that is all. He cannot be discharged on it,
however plausible it may be; and he has not the privilege of proving it
true before the coroner. He should, therefore, not be discharged, and
he cannot have the case investigated again before it is passed upon by
the grand jury.[555]

_Under the provisions of the New York Criminal Code_ the defendant
against whom an inquisition has been found by a coroner’s jury is
entitled to a hearing before a magistrate, whether he has been arrested
before the inquisition has been filed or is arrested after such filing.
Under the provisions of sec. 779, in the case of a defendant who has
been arrested before the inquisition can be filed, the prisoner is
entitled to be examined before the magistrate, before whom he may be
brought, as provided in sec. 781, and in the case of a prisoner who has
not been arrested until after the inquisition was filed, under secs.
781 and 783 the defendant is entitled to be heard before a magistrate
in all respects as upon a warrant of arrest on an information. The
magistrate must proceed to examine the charge contained in the
inquisition, and hold the defendant to answer or discharge him
therefrom.[556] The information is the allegation made to a magistrate
that a person has been guilty of some designated crime.[557]


 WHEN EVIDENCE TAKEN BEFORE CORONER OF A PARTY CHARGED WITH CRIME
 ADMISSIBLE IN EVIDENCE UPON HIS TRIAL SUBSEQUENTLY.

There is nothing which distinguishes between the proceedings of a
coroner’s inquest and any other official proceedings taken and
returned in the discharge of official duty as to their admissibility in
evidence. A witness, therefore, may be contradicted by the production
of a deposition thus given by him before a coroner.[558] But the line
is sharply drawn in what cases the testimony of a witness examined
before a coroner’s inquest can be used on his subsequent trial, and in
what cases it cannot. When a coroner’s inquest is held before it has
been ascertained that a crime has been committed, or before any person
has been arrested charged with the crime, and a witness is called and
sworn before the coroner’s jury, the testimony of that witness, should
he afterward be charged with the crime, may be used against him on his
trial, and the mere fact that at the time of his examination he was
aware that a crime was suspected, and that he was suspected of being
the criminal, will not prevent his being regarded as a mere witness,
whose testimony may be afterward given in evidence against himself.
If he desires to protect himself he must claim his privilege. But
if, at the time of his examination, it appears that a crime has been
committed, and that he is in custody as the supposed criminal, he
is not regarded merely as a witness, but as a party accused, called
before a tribunal vested with power to investigate preliminarily the
question of his guilt, and he is to be treated in the same manner as
if brought before a committing magistrate, and an examination not
taken in conformity with the statute cannot be used against him on his
trial for the offence.[559] So the doctrine as to silence being taken
as an implied admission of the truth of allegations spoken or uttered
in the presence of a person, does not apply to silence at a judicial
proceeding or hearing, and since the proceedings at a coroner’s inquest
are of a judicial character, what there transpired must be considered
as a part of the proceedings.[560] The leading cases which have been
before the New York Court of Appeals upon this important question,
and from which that court has finally deduced that rule, may be here
referred to.

 _Hendrickson Case._—In the first case the wife of the defendant
 died suddenly in the morning, and in the evening of the same day a
 coroner’s inquest was held. The defendant was called and sworn as a
 witness upon the inquest. At that time it did not appear that any
 crime had been committed, or that the defendant had been charged with
 any crime, or even suspected, except so far as the nature of some of
 the questions asked of him might indicate such a suspicion. On his
 subsequent trial on an indictment for the murder of his wife, the
 statements made by him at the coroner’s inquest were held admissible,
 on the ground that he was not examined as a party charged with the
 crime, that it had not appeared even that a crime had been committed,
 and that he had simply testified as a witness on the inquiry as to the
 cause of the death.[561]

 _McMahon Case._—Following this came the _McMahon Case_, in which
 it appeared that the defendant was arrested by a constable, without
 warrant, on a charge of having murdered his wife. The constable took
 him before the coroner, who was holding an inquest on the body, by
 whom he was sworn and examined as a witness. It was held that the
 evidence thus given was not admissible on the prisoner’s trial for the
 murder, and his conviction was reversed upon that ground.[562]

 _Teachout Case._—The doctrine of this case was more clearly defined
 and somewhat limited in a later case, the _Teachout Case_. In that
 case the defendant appeared at the coroner’s inquest in pursuance of
 a sub-pœna to testify, and voluntarily attended; he was not under
 arrest, but was informed by some one that it was charged that his wife
 had been poisoned and that he would be arrested for the crime. Before
 he was sworn he was informed by the coroner that there were rumors
 that his wife came to her death by foul means and that some of those
 rumors implicated him, and that he was not obliged to testify unless
 he chose. He said he had no objection to telling all he knew. The
 Court in delivering its opinion preludes it by a reference to these
 facts as showing that the statements made were voluntary in every
 legal sense, and held that a mere consciousness of being suspected
 of a crime did not so disqualify him that his testimony, in other
 respects freely and voluntarily given before the coroner, could not
 be used against him on his trial on a charge subsequently made of
 such crime. On that ground it held the evidence properly admitted,
 at the same time referring with approval to the _McMahon Case_,
 and distinctly limiting the rule of exclusion to cases within its
 bounds.[563]

 _Mondon Case._—Then followed the _Mondon Case_, where on the
 finding of the body of the deceased, the defendant was arrested
 without warrant as the suspected murderer. While he was thus in
 custody the coroner empanelled a jury and held an inquest, and the
 defendant was called as a witness before the inquest and was examined
 by the district attorney and by the coroner. The prisoner was an
 ignorant Italian laborer unfamiliar with the English language. He
 was unattended by counsel, and it did not appear that he was in any
 manner informed of his rights, or that he was not bound to answer
 questions tending to criminate him He was twice examined; on the first
 occasion the examination was taken by questions put either by the
 district attorney or by the coroner, and the result written down by
 the coroner, who then read the evidence over to him, line by line, and
 asked him if he understood it and if it was the truth, and he said it
 was, and the coroner then reswore him to the deposition. The coroner,
 after taking the defendant’s testimony on the first day, came to the
 conclusion that the defendant did not understand English well enough
 to be examined, and that it ought to be taken through an interpreter,
 which was done, in order that they might get it a little better and
 a little fuller. It was held that the defendant’s testimony was not
 admissible upon his trial on the indictment.[564] It will be seen that
 this latter case follows in direct line with the rule announced in the
 _McMahon Case_ and clearly distinguishes another case, the _McGloin
 Case_, upon the authority of which the trial court held the testimony
 of the prisoner in the _Mondon Case_ admissible.

 _McGloin Case._—The case of _McGloin_ was not that of the examination
 of a prisoner on oath before a magistrate before whom he was taken
 involuntarily, while in custody, and interrogated by the magistrate,
 who to all appearance had power to require him to answer, but while
 under arrest the prisoner said to the inspector of police who had him
 in charge that he would make a statement. The inspector then said
 that he would send for a coroner to take it. The coroner was then
 sent for and came to police headquarters and took down in writing the
 confession dictated by the prisoner, the coroner asking no questions
 and not acting in any official capacity, but as a mere amanuensis to
 take down the confession and prove the contents. It was held that the
 confession of the prisoner was admissible in evidence upon his trial
 for murder.[565]

_Rule in Pennsylvania._—The rule in Pennsylvania is substantially that
when the testimony given by the prisoner under oath before a coroner’s
inquest, previous to him being charged or suspected of the murder of
the individual upon whose body the inquest was sitting, may afterward
be given in evidence against him, on his trial for the murder of such
person.[566]

_Rule in Nebraska._—The statements of a prisoner to be competent
evidence must have been voluntarily made. In cases of declaration
made on an examination before a coroner’s inquest by a person under
arrest or charged with the crime and also under oath, they are not
admissible. But when the person, although he be subsequently charged
with the offence, appears voluntarily, and gives testimony, before any
accusation has been made against him, his statements are admissible in
evidence against him on the trial of an indictment for the crime.[567]



MEDICO-LEGAL AUTOPSIES.

BY

H. P. LOOMIS, A.M., M.D.,

_Professor of Pathology in the University of the City of New York;
Visiting Physician and Curator to Bellevue Hospital, New York;
Pathologist to the Board of Health, New York City; President New York
Pathological Society, etc., etc._



AUTOPSIES.


A MEDICAL examiner before proceeding with an autopsy, especially if
called before the body has been removed from the place where it was
found, should carefully note certain facts. These should be entered
by himself or an assistant with great care, in a note-book, as this
book can be introduced as evidence in any trial. A satisfactory way
is to dictate to the assistant as the examination proceeds, and at
the conclusion the assistant reads the notes taken, and the examiner
verifies them.


SURROUNDING OBJECTS—POSITION OF THE BODY.

These should be first noted. The character of the soil; the condition
of the ground, and whether it shows footprints; if so, their direction;
the evidence of any struggle; the presence of any weapon; and finally,
the exact position in which the body lies, especially the position of
the hands and feet. This is important, for the body may be found in a
position which the deceased could not have assumed on the supposition
of the wound or injury having been accidental or homicidal. If possible
a photograph should be taken of the body in the exact position in
which it is found. If it is absolutely necessary to remove the body,
it should be done with great care, keeping the body in as horizontal a
position as possible.

The character of the surrounding soil should be noted. This is of
special importance when the body to be examined has been exhumed: for
the question of preservation of the body and the ability to recognize
pathological changes may be brought up at a trial. This was an
important point raised in the Buchanan case (New York, 1893).

If a body be found in the water, examine the character of the water and
the temperature, and if found near the shore, the character of shore
and bottom.

=Blood.=—The situation of blood-stains, and their number and extent,
on clothing or surrounding objects should be noted. This will often
show whether a struggle has taken place after receiving the fatal
wound, and is also of medico-legal importance if made at the time the
body is found, for it may be so situated as to show that the body has
been interfered with after death.

Again, spots of blood found upon articles of clothing or upon
surrounding objects should be noted as to their form and direction, for
they may serve to furnish an indication of the position of the person
with respect to them when the wound was inflicted. For example, if the
spot was oval, the presumption is that the person was placed obliquely
with respect to the stain while the hemorrhage was occurring. The force
with which the blood was thrown out will in some measure be indicated
by the obliquity or length of the spot. The amount of blood will also
often indicate whether the person has died suddenly, the exact spot
where death occurred, whether a struggle took place, and will also
preclude the possibility of a person moving after receiving the fatal
injury. When we examine a body, especially when found in a room, care
must be taken not to be misled by the accidental diffusion of blood by
persons going in and out, or touching the body (see BLOOD-STAINS, Vol.
II.)

=Clothing.=—The examination of the clothing should be thorough. A
description of each article should be noted, and the order in which it
is removed; for often it is important to prove that the garments were
worn by or belonged to the deceased. If any blood is on the clothing,
note whether the blood is in large patches, or whether it is sprinkled
over the garment: the amount of the blood and what garments are stained
by it. Note and examine whether the blood has flowed down the front
of the clothing, whether it has soaked the inner garments, or again,
whether it has collected along the back; for these appearances will
sometimes demonstrate whether a wound was inflicted while the person
was sitting, standing, or lying down. For example, if the throat is
cut while the person is lying down, the blood will be found on each
side of the neck along the back and not down the front of the body.
Few suicides cut their throats in a recumbent position, and this
distribution of the blood may serve to distinguish a suicidal from a
homicidal wound.

The condition of the clothing may also serve to show whether there
has been any struggle, and the presence of dry spots or mud on it may
sometimes serve to connect an accused person with an act of murder.
This is well illustrated in the case of Reg. _v._ Snipe, reported in
Beck’s “Medical Jurisprudence,” where evidence was adduced to show
that some spots of mud on the boots and clothing of the prisoner, when
examined microscopically, contained infusoria, shells, and some rare
aquatic vegetables. The mud of the ditch close to where the body was
found, as also the mud on the clothing of the dead body, presented
the same microscopical appearances. The medical expert who gave this
evidence swore that in his opinion the mud spots on the body and on
the prisoner’s boots were derived from the same ditch, for the mud
of all the other ditches in the locality was found, on microscopical
examination, to be different. The well-known case which occurred in
New York a few years ago, known as the “Shakespeare case,” furnishes
an example of the importance of carefully examining all stains on the
clothing found on bodies.

If there are several stabs or cuts on the body involving the dress, it
should be noted whether they are blood-stained, and if so, whether the
stain is on the inside or outside of the garments, for sometimes in
simulated personal injury a stain of blood may be inadvertently applied
to the outside of the dress, as in wiping a weapon.

=Weapons.=—If a weapon is found, the character of the weapon and its
exact position should be noted. This is frequently of importance in
telling whether a person has died from an accidental or self-inflicted
wound. In a case where death occurs immediately or within a few
minutes, the weapon is found near the body, or often so tightly grasped
in the hand that it can be with difficulty removed. If the weapon
is found near the body it should be noted on which side and at what
distance, and it must be questioned whether it could have fallen on
the spot or been thrown there by the deceased. It is compatible with
suicide that the weapon should be found at some distance from the body.
An instance has been recorded where an individual was discovered in
bed with his throat cut, and the bloody razor was found closed and in
the pocket of the deceased. If a weapon cannot be discovered, or is
concealed, it is strong presumptive evidence of homicide; especially
when the wound is such as to produce speedy death.

Note whether the weapon is sharp or blunt, straight or curved. If a
knife, the handle and inner portion should be examined, for the blade
may have been washed.

If the wound has involved any large vessels, it is improbable that the
weapon can have been thrown any distance from the body, and when it is,
there are always fair grounds to expect interference with the original
position of the body. One circumstance which always strongly points to
suicide is the finding of the weapon firmly grasped in the hand of the
cadaver. The hand of a dead person cannot be made to grasp or retain
a weapon as does the hand which has grasped it at the last moments of
life. The amount of blood on the weapon should be noted, but it must be
remembered that a knife may have produced a fatal stab wound and still
no blood be found on it. This is explained by the fact that in a rapid
plunge the vessels were compressed, and only after the drawing of the
knife and relieving of the pressure blood began to flow, or possibly
the blood may have been wiped off the knife by the elasticity of the
skin.

When a person has died of a gunshot wound, especially at close range,
it is important to look for any wadding or paper found in the wound, as
in a number of instances the finding of such has led to the detection
of the criminal. For example, handwriting has been found on the paper,
or it has formed part of a printed page the rest of which has been
found in possession of the accused. When a gun is discharged near the
body, a portion of the wadding is almost always found in the irregular
wound produced.


POST-MORTEM EXAMINATION.

Having completed the examination of the surroundings, one next proceeds
with the post-mortem examination, which should be conducted according
to a well-defined plan, following which the results obtained will
always be satisfactory.

If possible the body should be removed to a large, well-ventilated, and
especially well-lighted room. No artificial light, if it can possibly
be avoided, should be used when performing the autopsy; artificial
light is especially bad on account of its yellowness and its power to
modify natural color. Many diseased conditions cannot be satisfactorily
determined by artificial light. The body should be placed on a high
table, and the facility with which the autopsy is made will often
depend on having the table high enough to render stooping unnecessary.
Never make an autopsy, if it can possibly be avoided, on a body while
in a coffin, as the examination is always unsatisfactory. The size and
surroundings of the room, and how it is lighted, should be entered in
the note-book.

=Instruments.=—If possible the following instruments should be at hand
before proceeding with an examination, although some of them may be
dispensed with:

(1) Large section knife; (2) scalpels; (3) enterotome (for opening
intestines and stomach); (4) costotome, or large bone forceps (for
cutting ribs); (5) scissors, large and small (one blade blunt); (6)
saw; (7) chisel; (8) dissecting forceps; (9) probe; (10) blowpipe; (11)
curved needles and strong twine; (12) measuring and graduated glass;
(13) small scales.

Besides the above instruments, some basins containing water; sponges,
bottle of flexible collodion, Lugol’s solution of iodine for the
amyloid test, will be needed.

=Post-Mortem Wounds.=—Various plans have been proposed to protect
the operator’s hands from the post-mortem wounds which are often so
dangerous, such as wearing rubber gloves, smearing the hands with
carbolized vaselin, both of which have their disadvantages: the gloves
being too clumsy, and the vaselin rendering it almost impossible to
hold the knife steady. Gloves should always be worn, however, where the
body has undergone much decomposition, or where the person may have
died from any septic disease. A method which I have found satisfactory
is to cover all cuts and hangnails with flexible collodion, and then
to have a basin of clean water at hand, and from time to time to rinse
one’s hands in the water. It is from bathing the hands in the cadaveric
fluids and not from cuts that most of the danger comes. If possible an
absolutely new board, large enough upon which to examine the organs,
should be at hand, for it may be claimed at a trial that the organs and
tissues, if placed and examined on surrounding objects, have become
contaminated.

=Toxicological.=—If a chemical analysis of the various organs and
tissues is to be made, and it is impossible to have the chemist
present, the medical examiner should obtain some new glass jars of
suitable size, with close-fitting glass covers. These jars should
be rinsed with distilled water, and in them the various organs are
to be placed; if possible with no preserving fluid on them. But if
it is found impossible to deliver the jars to the chemist at once,
alcohol may be poured over the organs in the jars, but it is specially
important that a sample of this alcohol should be retained, that a
chemist may at a future date test the same for any impurities. After
the organs and tissues have been placed in the jars, the mouths should
be closed and sealed, and the seal remain in the custody of the
examiner until the jars are delivered to the chemist.

=Parts to be Preserved for the Chemist.=—In cases of suspected
poisoning, it is not sufficient that the stomach and intestines alone
should be preserved for the chemist as has been indicated, each part
by itself; for it should be remembered that the portion of poison
remaining in the alimentary tract is but the residue of the dose
which had been sufficient to destroy life, and if the processes of
elimination have been rapid no trace of the poison will be found in the
alimentary canal but can readily be detected in other organs. Again,
the poison may not have been introduced by the mouth, in which case
none may be found in the digestive tract.

The chemist should receive, besides the stomach and entire intestinal
canal, the liver, one or both kidneys, the spleen, a piece of muscle
from the leg, the brain, and any urine found in the bladder.

When it is impossible for any reason to obtain the whole of any organ,
the part removed should be carefully weighed and its proportion to the
rest of the organ noted.

It is also of extreme importance to preserve in sealed and labelled
jars those parts of a body which may show the evidence of disease, or
on the appearance of which one’s evidence is founded.


ORDER OF AUTOPSY.

In making the autopsy, the operator should stand on the right side of
the body and make the incision by grasping the knife firmly in the
hand, and cutting with the whole of the blade and not with the point.
The knife should be swept along from the shoulder rather than from the
wrist, thus making a long, smooth, deep cut; never a jagged one.

The method of examining the human body after death will vary somewhat
according to the objects in view. These objects may be threefold: (1)
To ascertain whether a person has died from violence or poison; (2) to
establish the cause of death, especially if it has been sudden; and (3)
to ascertain the lesion of a disease, or to confirm a diagnosis.

The only difference between a medico-legal and pathological autopsy
is that in the former case everything which might subserve the ends
of justice should be carefully noted, and the changes found most
accurately described; especially any abnormalities found on the
external examination of the body. A photograph should be taken of the
body.

The head should be opened and the brain examined first, and not last,
as is often done in the ordinary autopsy.

Careful notes should be taken during each step of the examination, to
be reread, verified, and signed at the completion of the autopsy.

It must be remembered that most of the lesions of disease which are
found, indicate the disease rather than the cause of death; that often
the lesion found will seem hardly extensive enough to cause death, and
that from accidents and injuries apparently trivial, death may result.
It must often be acknowledged that no sufficient cause of death can be
found, but the more accurate and careful the examinations (especially
when a microscopical examination of the organs is made) the fewer will
be the number of such cases. If no apparent lesion is found, it must
not be forgotten that many poisons destroy life and leave no trace that
the pathologist can discover.

Care should always be exercised not to mistake the ordinary post-mortem
appearance which we find at autopsies for the lesions of disease.

The examination of the human body, whether it be made from a
medico-legal or pathological standpoint, is divided into two main
divisions:

(1) The external examination, and

(2) The internal examination.


EXTERNAL EXAMINATION.

Its minuteness will depend on the character of the case, as when the
person is unknown, or when suspected to have died from unnatural
causes. In such cases the external examination is very important.

The following are the steps to be followed:

(1) Give a =general description= of the body; apparent age, height, and
weight of the individual; color of the hair and eyes; condition of the
teeth; and the evidence of any personal peculiarities or abnormalities.

(2) Note the =color of the skin= and observe whether there are any
spots of CADAVERIC LIVIDITY, and if present where situated.

(3) =Contusions.=—Note whether there are any contusions, and, if
present, their character, situation, length, breadth, and depth should
be described, and whether they are accompanied by inflammation or by
the evidences of gangrene.

It is often important to determine whether a contusion has been
inflicted before or after death. This is to be done by cutting into
the ecchymoses and if the extravasated blood or the coloring matter
of the blood is found free in the tissues, one can be almost certain
that it is an ante-mortem injury. In post-mortem discolorations the
blood is found in the congested vessels. The situation of ante-mortem
contusions will not generally correspond to the discolorations produced
by decomposition; the latter being confined to the most dependent
parts. It should be remembered that the contusions produced by blows
on a body dead only a few hours cannot be distinguished from those
which were received during life; and also that putrefactive changes
make it well-nigh impossible to distinguish between ante-mortem and
post-mortem injuries. It should also be borne in mind that blows or
falls sufficient to fracture bones or rupture organs may leave no mark
on the skin (see WOUNDS, Vol. I., pp. 467, 474, _et seq._).

(4) =Wounds.=—The situation, depth, extent, and direction of any
wound should be recorded, as also the condition of its edges; the
changes in the surrounding tissues, and whether inflicted by a cutting,
pointed, or rounded instrument; or by a bullet. In the latter case the
course and direction of the ball should be ascertained by dissection
rather than by the use of the probe, and the character of foreign
bodies, if any are found in the wound, should be noted. What nerves
or blood-vessels, particularly arteries, have been injured, should be
ascertained. It is often important to determine whether a wound was
made before or after death. The following may serve as a differential
point: In all wounds made after death there is slight bleeding,
non-contraction of the edges, and absence of blood in the tissues. This
is the opposite of ante-mortem wounds. Again, wounds inflicted within
two hours after death cannot be differentiated from those made during
life (see GUNSHOT WOUNDS, Vol. I., p. 610 _et seq._; WOUNDS, Vol. I.,
p. 476 _et seq._).

(5) =Fractures.=—If there are any evidences of fractures, the
situation of the bones involved should be noted, and whether they
are accompanied by contusions of the soft parts. Fractures which are
inflicted during life are always accompanied by much more extravasation
of blood, more injury to the soft parts, and more evidences of reaction
than those occurring after death. It is a well-known fact that it is
much more difficult to produce a fracture in a dead than a living body
(see WOUNDS, Vol. II., p. 482 _et seq._).

(6) =The temperature= of the body should be taken.

(7) =The rigidity and flexibility= of the extremities should be
ascertained.

(8) =The state of the eyes= should be noticed, and the relative size of
the pupils.

(9) Attention should be paid to the condition of the cavities of the
mouth and nose. The neck should be specially examined for marks of
external injury, or signs of ecchymosis or compression.

(10) =Genitals.=—The external genitals should be very carefully
examined for evidence of injury, the presence of syphilitic lesions,
and in the female the condition of the vagina should be particularly
ascertained.

(11) =Œdema of the Feet.=—If there is evidence of œdema in any part of
the body, especially about the ankles, its situation and extent should
be noted.

(12) =Ulcers and Abscesses.=—The situation and extent of any ulcer
found on the body should be recorded, as also the presence and
situation of any abscess.

(13) =Burns.=—The extent of a burn, as also the state of the parts
involved, should be noted. For example, whether they are inflamed or
show blisters, etc. (see HEAT AND COLD, Vol. I., p. 647 _et seq._).

(14) =Hands.=—In medico-legal cases the hands of a dead person should
always be examined for the presence of cuts, excoriations, or foreign
substances found upon them; especially should the dorsal extremities
be examined. This examination will often indicate that there has been
a mortal struggle before death. The impression of a hand or of some
of the fingers is often found on the skin of a dead body. The exact
situation where found should be noted. This may be of importance, as
when it occurs where it would have been impossible or improbable for
the deceased to have caused it.

For appearances in death from lightning or electricity, see Vol. I., p.
701 _et seq._, and in death from hanging, strangulation, and garroting,
see Vol. I., pp. 713, 746, 781, _et seq._


INTERNAL EXAMINATION.

Having completed the examination of the external parts of the body, the
next proceeding is to open the body and make an internal examination.

This should be done by following a regular method, so as to examine the
relations of parts and not to injure one organ while removing another.

In opening the various organs an incision should be made which will
expose the greatest amount of surface at one cut. Never make a number
of small and always unsatisfactory incisions in an organ. In opening
certain organs like the brain and heart, the incisions are so planned
that the parts of the organ may be folded together, and, if necessary,
their relations to one another and the whole organ studied. Such organs
are opened as one would open a book to examine its pages.

It is important to remember that after death the blood leaves the
arteries and left side of the heart, and collects in the veins and the
right cavities of the heart. Especially does it collect in the vessels
of the most dependent portions of the body and of the various organs,
so that local congestions may often disappear after death; and again,
they may be found at an autopsy where they were not present during
life. Especially is this true of the mucous membranes such as those of
the trachea and bronchi, and also of the blood in the sinuses of the
dura mater.

In making autopsies it is a cardinal rule that _all_ the cavities
of the body should be examined, and not alone the one where one
might expect to find a lesion. At medico-legal autopsies, the great
cavities—the head, the thorax, and the abdomen—should be examined in
their successive order from above downward. The reason for beginning
with the head is that the amount of blood in the brain and its
membranes may be determined accurately; for, if the heart and great
vessels of the neck are opened first, the blood will drain away from
the brain and local congestions disappear. In pathological autopsies,
the opening of the head first is not so important, and often the
vertebral column need not be opened at all, for it is a complicated
process and takes time; but in medico-legal cases, especially where a
question as to the cause of death may arise, and has not satisfactorily
been determined, after all the other cavities are examined the
vertebral column should always be opened and the cord removed.


THE HEAD.

Make an incision across the vertex of the skull from ear to ear.
Dissect the anterior flap forward until within about three inches of
the bridge of the nose, and the posterior flap backward to the external
occipital protuberance. Examine the internal surface of the scalp for
ecchymosis and evidences of injury. A circular incision is then made
with a saw through the cranium as far backward and forward as the
flaps have been reflected. An incision through the temporal muscle is
necessary so that the teeth of the saw may not become clogged by the
muscle fibres. When the cranium has been sawed through, a stout hook is
inserted under its upper edge and it is removed with a quick jerk. If
the dura mater is very adherent to the calvaria, it may be necessary
to remove it with the bone, by cutting through it at the level of the
cranial incision. Examine the calvaria as also the other bones of the
skull after the brain has been removed and the dura stripped off, for
evidence of fracture.

Note the symmetry, thickness, and density of the cranial bone, and
remember that depressions along the sagittal suture are for the
Pacchionian bodies, and are not pathological.

=Dura Mater.=—The dura mater may be slightly adherent to the bone
of the cranium. This is especially seen in old people and does
not indicate disease. The Pacchionian bodies are seen along the
longitudinal sinus. Examine the internal surface of the dura mater
for the presence of clots, tumors, or inflammatory lesions. Open the
longitudinal sinus and examine for thrombi. Remove the dura mater by
an incision following the cranial incision, the falx cerebri between
the anterior lobes being drawn back and divided. Note whether the dura
mater is adherent to the pia mater, and the condition of its internal
surface.

=Pia Mater.=—The brain, covered by the pia mater, is now exposed.
Note the degree of congestion of the membrane, its adherence, and the
existence of pus, blood, or serum on its surface or in its meshes.
Remember that a considerable amount of serum may be present within
normal limits, especially in cachectic subjects, without indicating
disease, but when the serum is so extensive as to raise the pia mater
and to depress the convolutions, we have a pathological amount which
may be a simple dropsy due to some general cause, or the result of a
chronic meningitis. Enough serous effusion in the pia mater to produce
a condition which has been called by some writers “serous apoplexy,” I
believe never occurs as a primary condition.

Loss of transparency and thickening of the pia mater, especially along
the longitudinal fissure, is often seen in old people and does not
indicate disease.

=Brain.=—Remove the brain by raising the anterior lobes with the
fingers of the left hand and cutting through the nerves, vessels,
and the tentorium as they appear. The medulla is cut as low down as
possible, and the brain as it rolls out is caught in the left hand.

After being placed on a clean board or in a large clean dish, it
is minutely examined. The average weight of an adult male brain is
forty-nine and one-half ounces; of the female, forty-four ounces. Its
proportional weight to that of the rest of the body is as 1 to 45.

Lay the brain first upon its convex surface and examine the arteries
at the base for atheroma, thrombi, emboli, and aneurisms. Examine the
pia mater of the base, especially for the evidences of hemorrhage,
tumors, tubercles, and inflammatory lesions. Next turn the brain over
on its base, and proceed to open its various cavities and examine its
internal structure. Separate the two halves of the cerebrum, until the
corpus callosum is exposed. Make an incision downward and outward at
the junction of the corpus callosum with the cerebrum, and the roof of
the lateral ventricles will be cut through and their cavities exposed.
Prolong the incision forward and backward so as to expose the cornua.
The size and contents of the ventricles should be noted, as also the
condition of the ependyma. The floor of the lateral ventricles being
the most frequent spot of hemorrhage, if one is found its extent and
the parts involved by it should be noted; especially its relation to
the internal capsule.

Transverse incisions (about one-sixteenth of an inch apart) are made
through the ganglia seen on the floor of the lateral ventricles. Thus
any lesions in the substance of the ganglia will be disclosed. Three or
four longitudinal incisions are now made outward into the hemispheres
nearly to the pia mater. These will divide the hemispheres into long,
prism-shaped pieces held together by the pia mater and a little of the
cortex, thus enabling the brain afterward to be folded together, and
the relations of lesions to the brain as a whole studied. The third
ventricle is now examined by cutting through the fornix and corpus
callosum at the foramen of Monroe. Next, the fourth ventricle is opened
by a longitudinal incision through the lower portion of the vermiform
process; its contents, the condition of its vessels and ependyma
noted. Then the floor of the fourth ventricle is divided by transverse
incisions one-sixteenth of an inch apart, and careful examination made
for the presence of minute hemorrhages: for here is a place in the
body where almost a microscopical lesion (hemorrhage) may cause sudden
death. Each hemisphere of the cerebellum is now opened by a number
of incisions starting from the fourth ventricle and passing outward
into its substance. The presence of any tumors or hemorrhage in the
cerebellum will now be recognized.

In opening the brain, when clots, areas of softening, tumors, etc.,
are discovered, their exact location in relation to surrounding
parts should be noted and the blood-vessels examined for areas of
degeneration or aneurism. This examination can be facilitated by
allowing a stream of water to flow over the affected part. This will
wash out the affected area and allow the vessels to appear.

=Eye.=—In rare cases it may be necessary to remove the eye. This can
be done by breaking through the roof of the orbit with a saw or chisel
and dissecting away the muscles so as to expose the optic nerve and the
posterior portion of the organ.


THORAX AND ABDOMEN.

The body being placed on its back, and the operator standing on the
right side, an incision is made through the skin, fascia, and muscles
from the top of the sternum to the pubic bone, passing to the left
of the umbilicus and dividing everything down to the sternum and
the subperitoneal tissue. A small incision is now made through the
peritoneum below the ensiform cartilage. Into this opening two fingers
of the left hand are inserted, and by spreading the fingers and
holding the knife horizontally the peritoneum can be divided to the
pubes without injuring the intestines. The skin and muscles are now
dissected from the chest as far back as the false ribs. This dissection
may be facilitated by keeping the skin and muscles on the stretch and
cutting with the flat part of the knife. In order to better expose the
abdominal cavity, the recti muscles are divided beneath the skin at
their insertion in the pubic bone. Examine the cut surface of the chest
and abdominal muscles, and note their color, amount, and consistency.
Observe whether the chest muscles show the evidence of any parasitic
disease such as trichinosis. The mammary glands are now examined from
behind and opened if necessary.

=Superficial Examination of Abdominal Cavity.=—This should be done
before opening the chest cavity, because the position of organs
may become modified, and blood and other fluids are liable to find
their way from one cavity into another; and again, the blood in the
presenting portion of the abdominal organs will change its color after
exposure to the air.

NOTE THE FOLLOWING POINTS: (_a_) The _relative position_ and _general
condition_ of the abdominal organs.

(_b_) The _color_ and _amount of blood_ in the presenting parts.

(_c_) Whether there are any _signs_ of _inflammation_ or the evidence
of foreign bodies or tumors.

(_d_) Examine the _vermiform appendix_.

(_e_) _The amount of fluid in the abdominal cavity._ Normally a small
quantity of reddish serum will be found, particularly in warm weather,
at the most dependent portion of the abdominal cavity. If the quantity
is small it can only be ascertained by raising the intestines from the
pelvis. When the fluid is considerable, the exact amount should be
ascertained and its character noted.

(_f_) _Perforation_, _invagination_, and _hernia_ of the intestines
should be looked for.

(_g_) Determine the _height of the diaphragm_. Normally, on the right
side, it is at the junction of the fifth rib with the sternum, and on
the left it reaches as high as the sixth. A variety of pathological
conditions change its position. For instance, it may be raised when
the contents of the abdomen are greatly increased in volume, and in
new-born children who have never breathed. It may be depressed by
enlargement of the lungs, disease of the heart, or fluid in the pleural
or pericardial cavities. The presence of air or gas in the pleural
cavity can be determined either by filling the abdomen with water and
puncturing the diaphragm beneath the fluid so that the air will bubble
up, or a puncture may be made through the thorax between the ribs, and
the flame of a match will be deflected by the escaping air.


THORAX.

The thorax is opened by cutting the sterno-costal cartilages as close
to the end of the ribs as possible, the cut being made downward,
outward, and backward, and the knife held obliquely so as not to injure
the underlying parts. Quite often the cartilages will be found ossified
and it will be necessary to divide them by a costotome. Next, separate
the clavicles by a semi-lunar incision at their attachment to the
sternum.

Raise the sternum with the left hand and separate it from the
underlying parts. If there is any adherence of the sternum a slight
twist will be sufficient to remove it.

=Superficial Examination of Thorax.=—Observe the position, color,
and degree of distention of the _lungs_. It should be remembered that
healthy lungs, as soon as the chest is opened, owing to their inherent
elasticity, will collapse, and when this normal collapse is not seen
it is generally due to a loss of elasticity as occurs in emphysema,
to inflammatory diseases binding the lung to the chest wall, or to
the alveoli being filled with solid or fluid substances or pent-up
air. Most complete distention is seen when death is due to drowning or
suffocation.

The area of the _heart_ uncovered will vary according to the degree of
collapse of the lungs and to the abnormal size of the heart. Normally
the cardiac area exposed is quadrangular in shape, and about three and
a half inches in its longest diameter. Examine the _pleural cavities_
for the presence of adhesions, foreign bodies, or fluid. If fluid is
found it should be removed, measured, and its character noted. It
is to be remembered that in warm weather, or when putrefaction has
commenced, a moderate amount of reddish serum is found in the pleural
cavities which has no pathological significance. Lastly, examine the
_mediastinum_ as to the condition of the _thymus gland_ and _great
vessels_ outside the pericardium.

=Pericardium.=—Open the pericardium by an oblique incision along
the anterior wall, and prolong this incision downward and outward
toward the diaphragm and upward to its reflection from the great
vessels. Normally, about a drachm of clear serum, sometimes, however,
blood-stained from decomposition, will be found in the pericardial sac.
The amount is best ascertained by raising the heart. Note next the
contents of the pericardium and whether there is any serous, fibrous,
or purulent exudation. If an abnormal amount of fluid is present,
remove, measure, and note its character. Observe whether there are any
adhesions between the two surfaces of the pericardium. White patches
are often seen on the visceral surface of the pericardium, especially
over the ventricles. These have no pathological significance and are
due to slight thickenings of the pericardium.

=The Heart.=—Having passed the hand over the arch of the aorta and
noticed whether there is any evidence of aneurism or dilatation, we
grasp the heart firmly by the apex, raising and drawing it forward.
We remove it by cutting through the vessels at its base. Test the
sufficiency of the aortic and pulmonary valves by allowing a stream of
water to flow into these vessels, the heart being held in a horizontal
position and care being taken not to pull the valves open.

To apply the water test to the mitral and tricuspid valves, the
auricles are first opened so as to expose the upper surface of these
valves, and by allowing a stream of water to flow through the aortic
and pulmonary valves into the cavities of the ventricles, the degree of
sufficiency of these valves can readily be ascertained.

Another rough test is what is known as the “finger test.” The mitral
valve will normally allow two fingers, held flat and in contact,
to pass through its opening. The tricuspid in the same way allows,
normally, three fingers to pass; or if a more accurate test of the
degree of insufficiency is desired, the valvular orifices should be
measured. Normally, the aortic orifice is one inch across; the mitral,
one and eight-tenths inches; pulmonary, one and two-tenths inches; and
the tricuspid about two inches.

We open first the cavity of the right ventricle by making an incision
over its anterior border close to the septum. Prolonging the incision
downward to the apex and upward through the pulmonary artery, the
cavity of the ventricle will be fully exposed. The left ventricle is
similarly opened by an incision through its anterior wall which is
prolonged upward through the aortic valve. The cavities of the auricle
and ventricle, especially those of the right side, will often contain
blood-clots. These clots are _usually_ post-mortem clots formed during
the last hours of life or after death. It may sometimes be necessary to
distinguish these post-mortem clots from what are known as ante-mortem
clots. The latter are usually of firm consistency, dry, of a whitish
color, and closely entangled in the trabeculæ, while the former are
succulent, moist, of a reddish-yellow color, and are easily detached
from the walls of the heart cavities. Ante-mortem clots are rarely
seen, and the medical examiner should be careful not to attribute the
cause of death to the post-mortem clots which are so often seen. After
the heart is opened we can with more care and greater accuracy examine
the condition of the valves and recognize the extent of valvular
lesions.

The condition of the endocardium should now be examined and any
abnormality noted. Often it will be seen stained a deep red color.
This is not due to disease, but is caused by the absorption of the
coloring matter of the blood which has been set free by decomposition.
The size of the heart cavity and the thickness of the heart walls
should be noted, as also their consistency and color. It should be
remembered that the heart walls may appear unusually flabby as the
result of decomposition, or apparently thickened when death occurs in
extreme systole. The interior of the heart can be further examined by
passing the enterotome into each auricle, carrying the incision through
the mitral and tricuspid valves to join at the apex with the previous
incision, which has been prolonged through the ventricles to the apex.
Thus the auriculo-ventricular valves are completely exposed.

Having removed the blood from the heart it is next weighed. The average
normal weight of the human heart is about twelve ounces in the male,
and a little less in the female: its size roughly corresponding to the
closed hand of the individual. Normally, the thickness of the walls of
the left ventricle about its middle is five-eighths to two-thirds of an
inch, and of the right ventricle one-eighth to one-quarter of an inch.

Note the condition of the aorta above the heart, whether it is dilated,
atheromatous, or shows calcareous deposits. Examine the coronary
arteries by opening them with a blunt-pointed scissors. Disease of
these vessels with thrombosis is one of the causes of sudden death
which is often overlooked.

=The Lungs.=—The lungs are removed by lifting them from the pleural
cavity and cutting through the vessels and bronchi at their base. If
a lung is very adherent it is sometimes better to remove the organ
with the costal pleura attached so as not to tear the lung substance.
Examine the external surface of the lung as to its shape, color, and
consistency. Next open the large bronchi with a blunt-pointed scissors,
and prolong the incision into the pulmonary substance along the minute
bronchi. Observe the contents of the bronchial tubes, the appearance of
the mucous membrane, and their relative thickness. Remember that it is
very difficult to tell the condition in which the mucous membrane was
during life on account of the early post-mortem changes which affect
it, and also because the contents of the stomach may have been forced
after death up the œsophagus and down the bronchi, giving the tubes a
peculiar reddish and gangrenous appearance.

Having examined the bronchi, the lung is turned over and its base
grasped firmly in the left hand. An incision is made from apex to base,
which will expose at a single cut the greatest extent of pulmonary
surface. Note the color of the lung substance, and whether the alveoli
contain blood, serum, or inflammatory products. Blood and serum can
easily be forced from the lungs by pressure between the fingers, while
inflammatory exudations cannot. Examine carefully for the presence of
miliary tubercles.

If a question should arise whether a portion of a lung is consolidated,
this part can be removed, placed in water, and if the air cells are
consolidated the portion will sink; if there is only congestion it will
float. By squeezing the lung between the fingers an inflammation of the
smaller bronchi (bronchitis) can be recognized by the purulent fluid
which will exude at different points. It should be remembered that in
normal condition the lower lobes and posterior aspect of the lungs will
apparently be very much congested as a result of gravity.

=Neck, Larynx, and Œsophagus.=—Throw the head well backward, and
place a block beneath the neck. Make an incision from the chin to
the upper part of the sternum. Dissect the soft parts away on each
side from the larynx and thyroid body, then cut along the internal
surface of the lower jaw from the symphisis to its angle. Through this
incision introduce the fingers into the mouth, and grasp and draw
down the tongue. By dividing the posterior wall of the pharynx and
pulling downward these parts, the trachea and œsophagus can readily be
removed together, a ligature having been first placed around the lower
portion of the œsophagus. Open now the pharynx and œsophagus along
their posterior border. Examine the mucous membrane carefully for the
evidences of inflammation, caustic poison, tumors, foreign bodies,
or strictures. With an enterotome open the larynx and trachea along
their posterior wall. Observe if there is any evidence of œdema of
the glottis, and note the condition of the mucous membrane. Remember
that redness of the larynx is very commonly the result of post-mortem
changes and is also seen in bodies which have been kept cold. Dissect
off and examine the thyroid gland.


ABDOMEN.

Having completed the examination of the organs of the thorax, we next
proceed to examine those contained in the abdominal cavity. We first
raise and,dissect off the omentum, noting if it is abnormally adherent.

The first organs to be removed are:

=The Kidneys.=—Drawing the intestines aside we cut through the
peritoneum over the kidneys, and introducing our left hand we grasp
the organs with their suprarenal capsules attached. Raising first one
kidney and then the other, we easily divide the vessels and the ureters
as close to the bladder as possible. The kidneys are often found
imbedded in a mass of fat which must first be removed. Their surface is
sometimes of a greenish color owing to the beginning of putrefaction.
We note the size of the organ, its color and weight. A normal kidney
weighs from four and one-half to five ounces. Grasping the kidney
firmly in the left hand, we make an incision in its capsule along its
convex border, and with a forceps strip off the capsule and note its
degree of adherence and the condition of the surface of the organ;
whether it is smooth or granular. Prolonging our incision already
made through the cortex of the organ, inward toward the pelvis, we
divide the organ into two halves and now closely examine the internal
structure. The average thickness of the cortex, which should be about
one-third of an inch, is noted; as also its degree of congestion, and
whether the normal light (tubes) and reddish (vessels and tufts) lines
are seen running through it. If these alternate light and dark markings
are lost and the organ has not undergone decomposition, the presence
of some of the forms of Bright’s disease may be suspected. If the cut
surface of the organ presents a waxy appearance, the amyloid test
should be applied by first washing the cut surface of the organ and
dropping upon it a few drops of Lugol’s solution of iodine, when the
amyloid areas will appear as dark mahogany spots on a yellow background.

The pelvis of the kidneys should be examined for calculi and the
evidence of inflammatory lesions. The suprarenal capsules readily
decompose, but if the autopsy is not made too late hypertrophy,
tuberculosis, tumors, and degeneration in them may be recognized.

=The Spleen.=—This organ will be found in an oblique position at the
left side of the stomach. Grasping it firmly in the left hand and
drawing it forward, it can easily be detached. Normally in the adult
it is about five inches in length by three inches in breadth by one
inch in thickness, and weighs about seven ounces. The size, color,
and consistency of the organ should be noted, as well as abnormal
thickenings of its capsule and the presence of any tubercles or tumors
in its substance. The spleen softens very early as the result of
decomposition, and this decomposition should not be mistaken for a
pathological condition.

=The Intestines.=—In cases of suspected poisoning the greatest care
should be taken in the removal of the intestines and the stomach.
Double ligatures should be placed in the following situations so as
to preserve the contents of the organs intact: (1) at the end of the
duodenum; (2) at the end of the ilium; and (3) at the lower portion
of the rectum; and an incision should be made with a pair of scissors
between these ligatures. The jejunum and ilium should first be removed
together by seizing the gut with the left hand, keeping it on the
stretch, and cutting with a pair of scissors through the mesentery
close to its intestinal attachment. The cæcum, colon, and rectum should
then be removed in a similar manner.

The intestines being placed in large absolutely clean dishes, which
have previously been rinsed with distilled water, are opened; great
care being taken that none of the intestinal contents are lost. The
small intestines should be opened in one dish and the large intestine
in another. A portion of the intestines where morbid appearances are
most likely to be seen in cases of poisoning are the duodenum, the
lower part of the ilium, and the rectum. The comparative intensity of
the appearances of irritation should be especially noted. For example,
if the stomach appears normal and the intestines are found inflamed the
possibility of poison from an irritant may be denied.

The intestines are opened along their detached border by the
enterotome. Care should be taken to distinguish the post-mortem
discolorations which are usually seen along the intestines from those
produced by disease. The former are most marked in the dependent
portions. They are apt to occur in patches which can be readily
recognized by stretching the wall of the gut. The darkish brown or
purple discolorations which are sometimes seen as the result of
decomposition are due to the imbibition from the vessels of decomposed
hæmoglobin. Much care and experience are necessary to tell the amount
of congestion which is within normal limits and to recognize changes of
color produced by decomposition.

The pathological lesions ordinarily looked for in the examination
of the intestines are ulcers, perforation, hemorrhages, strictures,
tumors, and the evidences of various inflammations. To obtain an
accurate idea of the various portions of the mucous membrane of the
intestines, it is sometimes necessary to remove their contents. When
very adherent this should be done by allowing as small a portion
of distilled water as possible to flow over their surface. If any
abnormalities are noticed along the intestinal tract, an accurate
description should be given of their situation and extent; as also the
amount of congestion seen in different portions of the intestinal tract.

If possible the different portions of the intestines, as well as the
stomach, should be examined immediately after being exposed to view,
as under the influence of the air those parts which are pale may
become red, and slight redness may become very pronounced. In this way
only can we estimate the degree of vascularity of the various parts
after death. However, in cases of suspected poisoning, _when it is
impossible for the chemist to be present at the autopsy, the medical
examiner should not open the stomach and intestines_, but place them
in sealed jars. As soon as possible afterward, the chemist being
present, they should then be examined in the manner indicated. What
may be lost by waiting, in changes of color which have taken place,
will be more than counterbalanced by the data which the chemist will
obtain from observing the contents and mucous membrane of the stomach
and intestines when they are first exposed. The characteristic odors
of certain poisons are so evanescent that they quickly disappear after
opening of the stomach and intestines.

After a thorough examination of the intestines, they are to be put with
their contents into wide-mouthed vessels, each part by itself, and
the basins in which they were opened washed with distilled water and
the washings put into the same bottle. As soon as the intestines are
transferred to the jars they should be sealed.

=The Stomach.=—The stomach and duodenum are removed together. They
are opened by passing the enterotome into the duodenum and dividing
it along its convex border, the incision being continued along the
greater curvature of the stomach as far as the œsophageal opening. They
should be opened in a large glass dish which has been carefully washed
with distilled water. The chemist and medical examiner will carefully
note the quantity, odor, color, and reaction of the stomach contents;
also whether luminous or not in the dark; the presence or absence of
crystalline matter, foreign substances, undigested food or alcohol.

Portions of the contents should be placed in a small glass bottle and
sealed, so that at a future time they may be examined microscopically.
Only in this way can an absolute knowledge of the character of the
stomach contents be obtained. In certain medico-legal cases the ability
to decide the character of the stomach contents is of the utmost
importance. The mucous membranes of the stomach and duodenum must be
next carefully examined for evidences of hemorrhages, erosions, tumors,
and of acute or chronic inflammations. The appearance of the rugæ and
their interspaces, principally in the region of the greater curvature,
should be noted; because here traces of poison and its effects are
most frequently seen. If the stomach is inflamed, the seat of the
inflammation should be exactly specified, as also that of any unusual
coloration.

The condition of the blood-vessels are also noted. Vascularity or
redness of the stomach after death should not be confounded with the
effects of poison or the marks of disease. It may occur in every
variety of degree or character and still be within normal limits.
Vascularities which we might call normal are seen in the posterior part
of the greater end and in the lesser curvature, and may cover spaces
of various extent. Rigot and Trosseau have proven by experiment that
various kinds of pseudo-morbid redness may be formed which cannot be
distinguished from the varieties caused by inflammation; that these
appearances are produced after death and often not until five or eight
hours afterward, and that they may be made to shift their place and
appear where the organ was previously healthy, merely by altering the
position of the stomach. Ulcers, or perforations of the stomach as the
results of disease, as also the digestion of the stomach after death,
have been mistaken for the effects of _irritant poisons_.

When perforation of the stomach is the result of caustic poisons, the
edges of the opening are very irregular, and are of the same thickness
as the rest of the organ. The parts not perforated are more or less
inflamed, and traces of the action of the caustic are found in the
mouth, pharynx, and œsophagus. This is the opposite condition to that
seen in spontaneous perforation.

In considering perforation of the stomach the following points given by
Taylor are well to remember:

(1) A person may have died from perforation of the stomach and not from
poisoning.

(2) A person laboring under disease may be the subject of poison.

(3) A person laboring under disease may have received blows or
injuries on the abdomen, and it will be necessary to state whether the
perforation did or did not result from the violence.

(4) The perforation of the stomach from post-mortem changes may be
mistaken for perforations from poison.

_Corrosives_, if they do not produce perforation of stomach, will
generally cause intense inflammation accompanied by softening of the
inner coat, sometimes ending in gangrene. The inflammation varies as to
its extent and intensity, sometimes affecting principally the mouth and
œsophagus, but generally the changes are more pronounced in the stomach
and duodenum, while in rare cases the inflammatory process may extend
through the whole alimentary canal. The mucous membranes are sometimes
bright red with longitudinal or transverse patches of a blackish color,
formed by extravasated blood between the coats. _Carbolic acid_ often
produces in the stomach and œsophagus white patches—when these patches
are carefully examined, an ulcerated surface beneath them is generally
seen.

_Narcotic Poisons._—It is a common but mistaken idea that these
poisons produce some mark or characteristic effect upon the stomach
walls; that they induce a rapid tendency to putrefaction; that the
blood is in a fluid state; that hemorrhages are seen in various
parts; that the stomach and intestines show sloughing without any
inflammation. Some of these conditions may and probably do occur, but
they are far from being invariable in their appearance. Experiments
made by Orfila on animals with narcotic poisons prove the above
statement. In conclusion, I would emphasize the fact that the _narcotic
poisons produce no characteristic changes in the stomach that can be
detected_.

=The Liver.=—The liver should be removed from the body and no attempt
made to examine the organ _in situ_. After raising first one lobe and
then the other, the diaphragm should be cut on either side and the
suspensory and lateral ligaments divided, then the organ can easily
be removed. The weight of the organ is ascertained, as also the
measurements of its size recorded. The normal weight is from fifty to
sixty ounces. The organ is normally about twelve inches in length by
seven inches in depth by three and one-half inches in thickness.

The gall bladder is first examined to determine the character and
amount of the bile and the presence or absence of gall stones,
inflammatory lesions, and tumors.

At autopsies the surface of the liver, especially along the free
border, is generally seen to be of a greenish or dark-brown color.
This discoloration is due to the action of the gases developed
by decomposition on the coloring matter of the blood, and has no
pathological significance. The character of the surface of the liver
is now noted, whether smooth or rough. The organ is opened by deep
incisions in various directions, and the color, consistency, and blood
supply of the liver tissue carefully recorded. The presence of new
connective tissue, amyloid degeneration, abscesses, or tumors should
not be overlooked. It should be remembered that, of all the poisons,
phosphorus alone leaves characteristic appearances in the liver.

=The Pancreas.=—The pancreas is now easily removed, and its size and
weight recorded. Normally it should weigh three ounces and measure
eight inches in length by one and one-half inches in breadth by one
inch in thickness. The organ should be opened by a longitudinal cut and
examined for evidences of acute or chronic inflammation, fat-necrosis,
tumors, calculi, and amyloid degeneration.

=Genito-Urinary Organs.=—It is very important in medico-legal cases
that all the urine should be preserved and obtained uncontaminated;
therefore before the bladder is opened a catheter should be introduced
and the urine drawn off into a clean bottle which has previously been
rinsed with distilled water. If more convenient the bladder itself can
be punctured at its upper portion, a pipette introduced, and the urine
drawn off in this manner.

The genito-urinary organs are removed together. This is done in the
following manner. The body of the penis is pushed backward within the
skin and cut off just behind the glans penis; the remaining portion of
the rectum is raised. This with the prostate gland, bladder, and penis
attached is removed by carrying the knife around the pelvis close to
the bone and separating the pubic attachments. The organs are then laid
on a clean board and the urethra is opened on a grooved director passed
into the bladder, and the incision prolonged so that the internal
surface of the bladder itself will be completely exposed. Examine the
_urethra_ for strictures, inflammatory lesions, and ulcers. Examine
the _bladder_ for congestion, hemorrhages, inflammation, and ulcers
of its mucous surface, and note the thickness of its walls. Open the
_rectum_ and examine for ulcers, strictures, tumors, and the evidence
of hemorrhage. The _prostate_ gland is opened by a number of incisions
into its substance. Examine for hypertrophies, tumors, and inflammatory
lesions. Force the _testicles_ through the inguinal canal, and cut
them off. Weigh, open, and examine them for evidence of inflammation,
tuberculosis, and tumors.

=Female Organs.=—Before removing these organs, any abnormalities such
as adhesions, malpositions, and tumors should be noted. Dissect the
organs away from the pelvic bones by carrying the point of the knife
around the pelvis close to the bone. Cut through the vagina at its
lower third, and the rectum just above the anus. The organs can now
readily be removed. Examine the _vulva_ for ulcers, hypertrophies, and
tumors. Open and examine the _bladder_. Open the _vagina_ along its
anterior border and carefully examine its mucous surface for evidences
of inflammation.

THE UTERUS.—Before opening the uterus, its size and shape should be
recorded. The average normal weight of the organ is about one and
one-quarter ounces; its length three inches, breadth two inches, and
thickness one inch. Open the organ along its anterior surface by a
blunt-pointed scissors passed through the cervix, and the incision
carried as far as the fundus. Note the thickness of its walls and any
abnormalities of its mucous membrane. During menstruation, the mucous
membrane of the body is thickened, softened, and covered with blood
and detritus. Retention cysts are found in the mucous membrane of the
cervix and are not generally of pathological significance.

Remove, measure, and weigh the _ovaries_. Their normal weight is about
one drachm each; their size, one and one-half, by three-quarters, by
one-half inch. Open the organs by a single incision and examine for
the evidences of acute and chronic inflammations, tumors, and cysts.
The _corpora lutea_ in various stages can be easily recognized in the
substance of the organ. Open the _Fallopian tubes_ and examine their
contents and the condition of their membranes (see DISPUTED PREGNANCY
AND DELIVERY, Vol. II.).


THE SPINAL CORD.

To remove the cord, the body should be placed on its face with a block
beneath the thorax. An incision is made through the skin and muscles
along the entire length of the vertebral column and the soft parts
dissected away so as to expose the transverse process of the vertebræ.
The lamina are divided with a saw through the articulate process (a
double-bladed saw specially adapted for this work can be obtained).
After the lamina have been completely severed, these together with the
spinous process can now be readily torn away with a stout hook and the
cord exposed. A long chisel with a wooden mallet will often greatly
facilitate this work. Great care should be exercised not to injure
the cord. The roots of the spinal nerves are now severed, and the
cord removed within its membrane. It should be remembered that serous
fluid within the membranes of the cord, as also intense congestion,
especially along its posterior aspect, is often seen as the result of
post-mortem change. The cord is laid on a clean board and the dura
mater opened with a blunt-pointed scissors along its anterior aspect,
and an examination made for the presence of hemorrhage, inflammatory
lesions, and tumors. Softening of the cord can generally be detected by
the finger passed along it. This, however, is not a perfectly accurate
test, especially if the body has been dead some time. The cord is
now cut by transverse incisions about half an inch apart throughout
its entire length, and the cut surface examined for the evidences of
disease such as hemorrhages, softening, and inflammatory lesions.

After the cord has been removed, examine the vertebral column for the
evidences of fractures and displacements.


LATE AUTOPSIES.

Late autopsies are those performed after partial or complete
destruction of the soft parts of the body, through the natural
processes of decomposition, or the examination of bones exhumed long
after interment. The term may be employed also to mean the inspection
of an embalmed body, dead for some time.

The object of late autopsies is to determine identity, or to establish
the guilt or innocence of suspected persons. An examination of the
skeleton even many years after death may give important information as
to the manner in which the deceased came to his end. This cannot better
be illustrated than by the citation of one or two cases.

In the celebrated case of “Eugene Aram,” the bones of his victim were
discovered thirteen years after the crime had been committed. A man who
afterward proved to be Aram’s accomplice was arrested on suspicion. He
confessed the crime, and the opinion formed by the medical witnesses
was confirmed by his statements. The skull presented evidence of
fracture and indentation of a temporal bone. Aram argued the case in
his own behalf, but the testimony was too strong against him: he was
convicted and executed.

Taylor records the case of a man, Guerin, who was convicted of the
murder of his brother from evidence obtained from an examination of the
skeleton three years after interment. Here, again, blows upon the head
were the cause of death, and the fractures were plainly perceptible
upon the exhumed skull.

An autopsy upon a body before the soft parts have been entirely
destroyed, or upon an embalmed body, should be conducted in much
the same manner as ordinary autopsies. In these cases the method of
burial should be noted. If it be a case of murder, and the body has
been hurriedly put into the ground, it is not likely that the custom
of Christian nations has been observed—that of laying the body full
length, with the head to the west.

In the case of partially destroyed bodies, the remaining soft parts
will give little evidence of the mode of death unless the violence has
been very extensive, and even then it may be impossible to determine
whether a wound was inflicted prior to or after death. Recourse must
be had to the skeleton, and the only evidence it can furnish is of
fractures, unless, as happened in one case, a rope be found about the
cervical vertebræ.

When the skeleton only is found, Taylor lays stress upon the following
points:

(1) Whether the bones belong to a human being or one of the lower
animals.

(2) If a human being, whether male or female.

(3) The length of time they have probably remained in the ground.

(4) The probable age of the individual to whom they belonged. If the
maxillary bones be found, much information may be obtained from an
examination of the teeth.

(5) The probable stature of the individual during life.

(6) The race to which he belonged. The conformation of the skull and
thickness of the bones will give important information on this point.

(7) It should be determined whether solitary bones belong to the right
or left side, and whether they form parts of one or more than one
skeleton.

(8) Whether they have been fractured, and if so, whether it occurred
during life, or by accident at the time of the exhumation. If it
occurred during life, whether it be recent or of long standing.

(9) The presence or absence of personal deformities, of supernumerary
fingers or toes, of curvature of the spine, of ankylosis of one or more
joints.

(10) Whether they have been calcined, as murderers sometimes try to
make away with the bodies of their victims by burning. Especially is
this the case in infanticides (see IDENTITY, Vol. I., p. 408 _et seq._;
TIME OF DEATH, Vol. I., p. 452 _et seq._).


AUTOPSIES OF FRAGMENTS.

These cases are usually cases of murder in the perpetration of which
the criminal has mutilated the body with a view to destroying all
traces of identity.

The importance which attaches to autopsies of fragments rests upon
the fact that parts of a body may be found widely separated, and that
one portion may be found before the others. In such cases it will be
necessary to determine if they belong to one and the same body. The
examination is conducted chiefly with a view to establishing this.

The examiner must note the manner in which the fragment has been
separated; whether it is clean cut, as by one who understood something
of anatomy, or, whether it has been separated roughly and by one
ignorant of the body structure. The determination of this point will
be one link in the chain of evidence which may lead to the detection
of the criminal, or the acquittal of one accused. An anatomist or
a butcher would be likely to cut through at a joint, and to do it
neatly. The exact point at which the severance has taken place should
be noted. The place of finding, the circumstances under which found,
the condition and general appearance of the fragment should all be
carefully recorded. The color of the skin will indicate with some
accuracy the race to which the individual belonged. The probable
sex may be determined by the presence or absence of hair, and the
general conformation. This, however, will not apply in the case of
children. The probable age may be fixed upon from the size and degree
of development of the fragment. The cut surface should be carefully
described, and if possible a drawing should be made of it.

There are special considerations which apply to certain parts of the
body.

=The Head.=—The exact point of severance should be recorded. The
number of vertebræ which remain attached to the head should be counted,
and if the section pass through a vertebra, its number and the amount
of it missing should be stated. The sex will be apparent in all
instances; the race may be determined both by the color of the skin
and by the shape of the head; the age may be approximated, though care
must be had in expressing an opinion, for the manner of living is well
known to affect the appearance of age. Evidence of violence prior
to death should be noted, and the presence or absence of fractures
ascertained; also observe the color of the hair and whether it be thin
or abundant; the presence or absence of beard or mustache, and if
present the color; and the color of the eyes.

=The Arm.=—The following points should be determined: the color of the
skin as indication of race; the probable sex from its shape and general
conformation; the probable age from its size and degree of development;
marks of any kind, such as tattooing; and deformities, such as signs of
old or recent fracture, or dislocation; and supernumerary fingers.

=The Leg.=—The examination of the leg should be conducted in much the
same manner as that of the arm.

=The Trunk.=—An examination of the trunk will reveal the race, sex,
and probable age, and may give evidence as regards the manner in which
the deceased came to his or her death. Any marks or deformities should
be recorded, and in all cases the viscera should be examined.


MEDICO-LEGAL REPORTS.[568]

After making a medico-legal autopsy, it will be necessary for the
medical examiner to draw up a report of his findings, and the
conclusions based thereon. The report should be clear and concise, and
the language such as a coroner’s jury can understand. Technical terms
should be avoided, and when their employment is necessary they should
be explained in the margin or in parentheses.

The report should be drawn up in somewhat the following manner:

1. When and under what circumstances the body was first seen; stating
hour of day, day of week and month.

2. When deceased was last seen living, or known to be alive.

3. Any circumstances that would lead to a suspicion of suicide or
murder.

4. Time after death at which the examination was made, if it can be
ascertained.

5. The external appearance of the body: whether the surface is livid or
pallid.

6. State of countenance.

7. Any marks of violence on the person, disarrangement of the dress,
blood-stains, etc.

8. Presence or absence of warmth in the legs, abdomen, arms, armpits,
or mouth.

9. Presence or absence of rigor mortis.

To give any value to this point it is necessary for the witness to
observe the nature of the substance upon which the body is lying;
whether the body be clothed or naked, young or old, fat or emaciated.
These conditions materially influence the rapidity of cooling and the
onset of rigor mortis.

10. Upon first opening the body the color of the muscles should be
noted. Carbon monoxide poisoning causes them to be of a cherry-red
color.

11. The condition of the blood and its color.

12. The state of the abdominal viscera, describing each one in
the order in which it is removed (see p. 370). If the stomach and
intestines are inflamed the seat of the inflammation should be exactly
specified; also all evidences of softening, ulceration, effusion of
blood, corrosion, or perforation. The presence of hardened fæces in the
rectum will bear evidence that no purging occurred immediately before
death.

13. The state of the heart and lungs. (For special consideration of the
lungs in cases of suspected infanticide, see Vol. II.; and of persons
drowned, see Vol. I., p. 805 _et seq._).

14. The state of the brain and spinal cord.

After a thorough consideration of the results of the examination,
conclusions must be drawn from this examination; never from the
statements of others. The conclusions commonly relate to whether
death was due to natural or unnatural causes; if to unnatural causes,
what are the facts which lead the examiner to this opinion. As the
conclusions are intended to form a summary of the whole report, they
must be brief and tersely stated.



  PERSONAL IDENTITY,

  INCLUDING

  THE METHODS USED FOR ITS DETERMINATION IN THE
  DEAD AND LIVING.

  BY

  IRVING C. ROSSE, A.M., M.D., F.R.G.S. (ENG.),

  _Professor of Nervous Diseases, Georgetown University; Membre du
  Congrès International d’Anthropologie Criminelle, etc._



PERSONAL IDENTITY.


GENERAL CONSIDERATIONS.

Identity is the determination of the individuality of a person. In
jurisprudence the term is applied to the recognition of a person who is
the object of a judicial action. The establishment of the individuality
of a person is known as _absolute_ identity; while the relations of a
person with some particular act is known as _relative_ identity.

The great number and variety of facts concerned in the investigation
of questions of identity are of considerable gravity and importance in
their juridical bearing, and at the same time they are among the most
interesting and most useful of the applications of modern medicine to
the purposes of the law.[569]

Among the varied researches of legal medicine looking to an
interpretation of facts, no other question occurs in which the solution
depends more upon morphological and anatomical knowledge, and none is
more dependent upon purely objective, visible, tangible facts.

Personal identity often constitutes the entire subject-matter of
dispute in a civil case. Upon it may depend the question of absence or
of marriage, of kinship or of filiation involving the possession of
an estate, in which case the court often requires the most subtle of
scientific evidence to assist in its decision. Many anthropological
and medical facts, now appropriated by criminology and penal science,
are useful in proving not only the present but in attesting future
identity, thereby preventing in great measure the dissimulation of
prisoners, deserters, false claimants to life insurance, fraudulent
pensioners, and the like.

Such matters are of daily occurrence. The special agents of the U. S.
Pension Office detect and cause the punishment of many fraudulent
claimants. Stratagems and conspiracies to defraud life-insurance
companies go much further than mere substitution. Instead of a
“fraudulent” a positive death may come up for investigation, and in
order to defraud an insurance company of a large amount, a body may
even be procured by homicide to consummate the deception, as was done
in the Goss-Udderzook tragedy near Baltimore in 1872.

A celebrated case now before the Supreme Court of the United States and
involving the question of personal identity is that of the Mutual Life
Insurance Company of New York, the New York Life Insurance Company, and
the Connecticut Mutual Life Insurance Company of Hartford, Connecticut
(Consolidated), plaintiffs in error, vs. Sallie E. Hillmon.

It is pre-eminently in criminal trials that the personal identity of
the victim often constitutes an essential connecting link. Before it
can move, the law requires, at the outset, proof of the individuality
of both the author of a crime and of the victim. I shall, therefore,
not touch upon such elusive individuals as Charlie Ross and Jack
the Ripper, but limit my remarks to a synthetical exposition of the
best-known facts regarding identification of the dead body and the
interpretation of its organic remains.

The identity of a living person, or even our own identity, is often a
difficult point to establish. It may also require medical evidence,
oftentimes of a most involved character, to establish the fact of
death. Hence the medico-legal process of connecting a dead body, or
the remains or traces of the same, with a human being once known to
have lived and moved on earth, is beset with difficulties that may give
rise to still greater antagonisms of evidence. The question of personal
identity is one of the hardest that could possibly come before a court.
Celebrated cases and judicial errors have given it great notoriety.
There are consequently few questions in forensic medicine that require
more attention and sagacity, and none upon which the medical legist
should pronounce with more reserve and circumspection. Medical men are
absolutely the _only_ persons qualified to assist in resolving the
really delicate question of personal identity; yet the physician and
the lawyer pursue the same line of logic and of inquiry. As the former
must have a subject to dissect or to operate upon, so must the lawyer
in pursuing a criminal investigation first prove a visible material
substance known in legal phraseology as the _corpus delicti_, which he
must connect with some personality, with some human being once known
to have lived. In this important process the physician’s testimony
being the indispensable guide of the court’s inference, he should limit
himself to purely anatomical and material knowledge. The medical expert
has absolutely nothing to do with guilt or innocence, as that is a
question for the jury. He should, above all things, be absolutely free
from prejudice, suspicion, or undue suggestion, and should remember
that in thus sinking his personality his sole function as a skilled
witness in cases of identity is to furnish testimony which, when taken
in connection with other evidence in the case, may establish such a
_corpus delicti_ as would justify the inference of a crime.

A nice point may arise as to dispensing with the proof from the body
itself, when the substantial general fact of a homicide is proved
_aliunde_, as in the case of a criminal causing the disappearance
of his victim’s body by means of its decomposition in lime or other
chemical menstrua, or by submerging it in an unfathomable spot in the
sea. Under circumstances such as the following: a person is seen to
enter a building and is not seen to leave it, although all means of
egress therefrom are watched; another person is seen to ignite the
building, which thereupon burns down, and the charred remains of a
human body are found in the ruins; the proof of identity from the body
itself might be dispensed with in view of the substantial general fact
of a homicide having been committed. In a delicate case where the man
of art hesitates and finds no _corpus delicti_, the investigation of
imprints and stains may give a clew of great value to the expert. Yet
it is only upon absolute evidence, and in the strongest possible case,
that the fundamental principle of the _corpus delicti_ is disregarded.

In the case of Ruloff, the child’s body was not produced and no trace
of it could be alleged to have been found; nevertheless the prisoner
was found guilty of murder. This case was speedily overruled (18 N. Y.,
179), on the ground that a dangerous precedent had been pronounced.

So indispensable is the showing of the _corpus delicti_ in cases
of recognition that lawyers have come to regard even the judicial
confession of an accused as often the flimsiest and most unsatisfactory
kind of evidence. Numerous cases of demonstrated fallibility of
confessions are cited in the books, where the statement was utterly
lacking in anything except motive or hallucination. In the Proceedings
of the New York Medico-Legal Society, December 6th, 1876, Mr. James
Appleton Morgan mentions the case of a German servant-girl who
assured her mistress, whose little boy, a child of seven, had just
died and been buried, that she (the servant) had poisoned the boy.
The servant swore to her crime and was taken into custody, and it was
only when no poison was discovered upon exhuming the child’s body and
examining its stomach that against her own protest she was acquitted
of the possibility of the crime. Another case of the kind that has
had medico-legal notoriety was tried a few years ago before a court
in Brittany. The accused declared that he had killed his servant and
thrown the body in a pond. His guilt seemed certain, when the alleged
victim put in an appearance, thus reducing the evidence to the strange
hallucination that had prompted the confession.

But the most wonderful of these is the celebrated case of Boorn, in
which medico-legal evidence took no part. In view of the seeming
hopelessness of his case, the accused confessed to murder in
expectation of mercy from the court, but was finally acquitted on the
alleged victim walking into court and confronting the man who had sworn
to having killed him.

Although wisdom and experience point to the necessity of showing
something corporal and material in cases involving questions of life
and death, yet very small traces or minute remains of a human body may,
in certain circumstances, constitute a _corpus delicti_ that may lead
to trial if not to conviction. In 1868 the Lambert case, for murder on
the high seas, was tried before Judge Benedict in the United States
Court, the only _corpus delicti_ alleged being a large pool of blood
and brains found on the forecastle of a ship at sea, out of sight of
land or other vessel. Circumstances, acts, and words pointed strongly
to the murder of one of the crew, who was believed to have been brained
with an axe and thrown overboard. Notwithstanding the fact that
animosity was known to exist between the accused and the missing man,
it further appeared that the accused, in a state of great excitement,
had followed the missing man forward and returned alone with a hatchet
in his hand, yet the jury in this instance were not satisfied as to
the establishment of a _corpus delicti_ beyond a reasonable doubt and
accordingly failed to convict.

Two classical cases, that of Gardelle and of Dr. Webster, mentioned
in many of the books, stand forth as instances of conviction where
fragments of the human body were recognized after attempts to destroy
them by intense heat. The conviction of Dr. Webster rested almost
entirely upon medico-legal evidence; but it is probable that upon the
same circumstantial evidence the increased industry of counsel would
have so rung the changes in regard to its uncertain and unsafe nature,
and would have so used the knowledge gained from advanced discoveries
in the regions of the probabilities of science, as to have secured the
acquittal of the prisoner had the trial taken place at the present time.

A similar affair of great medico-legal interest is the Goss-Udderzook
tragedy, already referred to, an account of which is given by Drs.
Lewis and Bombaugh among the “Remarkable Stratagems and Conspiracies
for Defrauding Life Insurance Companies,” New York and London, 1878.


IDENTITY OF BURNT REMAINS.

The medical jurist will no doubt find cremation a formidable barrier in
elucidating the question of identity, although the entire destruction
of a dead body is a matter of extreme difficulty.

In the case of calcination chemical analysis of the ash would detect
the phosphate of lime, but this would throw no light upon the
subject, since the ash of human bones and that of the lower animals
is identical. If the burnt bone is entire, the state of the epiphyses
may enlighten the question of the determination of age. The following
two cases, in which fragments or portions of bone had been submitted
to the action of fire, show how medical training and some knowledge of
comparative anatomy may contribute to the establishment of guilt or may
attest innocence.

In the case of The Queen _vs._ John Henry Wilson, for murder, the
accused burnt his step-father in a lime-kiln for over a week, and on
strewing ashes from the kiln fine fragments of bone picked up were
afterward identified as human. At the trial identity rested on the fact
of finding two buttons and a buckle, which were recognized as part of
the deceased’s wearing apparel when last seen.

In the second case, that of a young woman supposed to be in the family
way who should not have been, it was thought that she had been confined
and made away with the infant. Under this supposition the premises
where she lived were searched by the chief constable, who found in
the stove some bones and fragments of bones that had been burnt. On
examination by a qualified medical man, the fragments turned out to be
not human bones, but those of some other animal, presumably those of a
pig and of a chicken, which the family, who lived in a tenement-house
without a back yard, had put in the stove to get rid of the refuse.[570]


IDENTIFICATION OF HUMAN BONES.

In deciding whether certain bones are human or not, the medical jurist
should exercise great caution in venturing an opinion as to the precise
animal of which he may believe they formed a part. There is no great
difficulty in detecting the smallest fragments of bone by means of
the microscope, but we cannot say with safety whether the fragments
belonged to a mouse, a man, or an elephant. A real difficulty occurs in
recognizing the nature and origin of the bony remains when only a small
fragment or a single bone is submitted for report. If a sufficient
portion of the skeleton be submitted it can be easily recognized as
human, as in the imbedded remains of the troglodyte found in the
limestone deposit of Luray Cave, Virginia, and only in the exceptional
case of the bones of one of the manlike apes could a difficulty of
distinction arise. The characteristic signs that distinguish a gorilla
skeleton, for instance, are the smaller thumb; notable length of tibia
and of radius, although this relative length of extremities has been
remarked in negroes; small facial angle, 30° to 40° in the monkey, 70°
to 80° in man; very inferior cranial capacity, the maximum in a gorilla
being 550 cubic centimetres, while the minimum in the human species is
from 970 with a maximum of 1,500 to 1,900 centimetres; a low index of
the foramen magnum; convexity of the squamo-parietal suture, and larger
and more salient canines and incisors. The volume of the endocranium
in the female gorilla, like that of the human species, is smaller
than that of the male; this difference being almost 80 c.c. for the
anthropoid female.

In studying the osseous system it should be remembered that certain
modifying elements, as artificial compression, pathological
deformities, posthumous distortions, and hygrometric conditions, may
affect particularly the skull, and if due allowance be not made for
these the study may lead to glaring absurdities. Not longer ago than
1725 there was found in a quarry at Œningen the skull of a fossil
batrachian compressed into rude resemblance to the human cranium, which
was announced to the world as Scheuchzer’s “_Homo diluvii testis et
theoscopos_,” and as the remains of one of the sinful antediluvians who
perished in the Noachic deluge.


ARE THE BONES OLD OR RECENT?

An important point may arise in questions of identification of bones as
to the oldness: whether they are old or recent. The first indication
is furnished by the presence or by the absence of the soft parts.
The existence of the periosteum and of the spinal marrow is the most
persistent proof of a recent state; but these alone with the soft parts
are usually destroyed in two or three years. In ordinary circumstances
a body becomes skeletonized in about ten years, although in exceptional
cases the cadaver may resist decomposition after many years.[571]

This summer in transferring an old cemetery in Georgetown, D. C., the
remains of the grandmother of one of the writer’s patients were found
in such a state of preservation as to be easily recognized after fifty
years of burial. More recently, in unearthing the remains of an old
graveyard in East Washington, a striking peculiarity was noticed in the
fact that many bodies of young people buried in recent years when taken
up consisted of a few blackened bones and shreds of grave-clothes.
while the remains of many older people buried long before the Civil War
were found in an excellent state of preservation. One of these was a
Mr. Fullin, who died from the effects of a sunstroke forty years ago
and was buried in a metallic case. An old lady who attended his funeral
was present when his remains were unearthed and said they looked as
natural as when he was laid away in 1852. The features were well
preserved and even the white linen of the shroud was unsoiled.

Alterations in the texture of the bone, such as that caused by
dryness and by diminution in the proportion of organic matter, may be
ascertained by histological examination, and one of the characters of
age may be furnished by taking into consideration the specific weight.
Placing the skull at an average density of 1,649, that of an infant
would be 1,515, an adult 1,726, and that of old age 1,636.

Ascertaining the proportion of organic and inorganic matter, the
phosphates and carbonates, by chemical means may furnish an additional
help in the interpretation of the remains.

With all these diagnostic methods it may still be impossible to
establish identity either absolute or relative, even where a whole
skeleton is in question. The evidence may, however, be of great
juridical use to the accused, as in the case of Van Solen, tried for
the murder of Dr. Henry Harcourt, where the collective facts pointed to
the identification of a body dead two years. The jury, however, after a
second trial, were instructed to acquit unless they were certain that
the remains were Harcourt’s. They acquitted, as no _one_ decided and
apparent feature was known to have existed by which the remains could
be identified beyond a doubt.[572]


IDENTITY IN CASE OF ENTIRE SKELETON OR IN CASE OF ISOLATED BONES.

Where an entire human skeleton has been discovered, the objects of
inquiry here, as in the case of fragments or remains, are to establish
the identity of the victim and that of the author of the act, and to
collect all available information relative to the nature of the death
and to the diverse circumstances attending the commission of the deed.

In gathering evidence from the examination of the skeleton or of
isolated bones, with a view to find out the probable cause of death
of the person of whom they form a part, a great variety of questions
will arise for consideration, such as those relating to race, stature,
age, sex, and trade or occupation; the exterior signs furnished by
dentition; the traces of congenital peculiarity or of injury, and the
signs of disease either hereditary or acquired.


DETERMINATION OF RACE.

The question of race in connection with the subject of identification
is of more than usual importance in the United States, owing to our
motley population, composed as it is of aboriginal Americans, Chinamen,
negroes, and of Europeans and their descendants. I well remember the
first human bones that I saw exhumed. They were discovered in digging
the foundation of a building near a kitchen-midden on one of the
tributaries of the Chesapeake Bay. The apparent oldness of the bones
and the finding of stone arrow-heads, tomahawks, and fragments of
aboriginal pottery in the immediate vicinity were additional accessory
facts that strengthened the presumption of the bones being those of a
Choptank Indian.

Roughly speaking, there is not much trouble in recognizing the
platycnemic tibiæ of the mound-builder, the skull of a Flathead Indian,
an Inca skull, a negro skull, or even the skull peculiar to the lower
order of Irish.

In many very old skulls a considerable portion of hair is often found
attached. This of course may lend assistance in the matter of race
identity. A few years since I undertook at the Smithsonian Institution
a series of micro-photographs of the structure and arrangement of hair,
with a view to race classification as suggested by Professor Huxley.
Various specimens of hair from the yellow races were compared with
that of fair and of blue-eyed persons, with the hair of negroes, with
reindeer hair, and with the hair-like appendage found on the fringy
extremity of the baleen plates in the mouth of a “bowhead” whale. The
experiments, though far from satisfactory, were sufficiently conclusive
to enable one to recognize approximately the horse-like hair of some of
the yellow races, that of the negro, and that of a blond Caucasian.

Beyond the forementioned characteristics, the task of race recognition
from observation of the skull is one of great difficulty and perplexity
with illusory results. A considerable experience of several years with
the large collection of skulls in the Army Medical Museum enables me to
speak advisedly on this point.[573]

Although the technical procedures of craniometry require special
measurements and employ an arsenal of special instruments, the results
are far from conclusive as regards the determination of human types.
Time and space do not permit the mention even in epitome of the
various methods most relied upon by trained craniologists. Among the
oldest operations of cephalometry, as well as the most incomplete,
is the measurement of the so-called facial angle, which is employed
to distinguish the skull of a lower order of animal from that of the
negro and the white man. This angle, acute in the skulls of the lower
animals, approaches a right angle as we ascend the zoological scale;
being from 30° to 65° in the various apes; 75° in the Mongolian; about
70° in the negro, and between 80° and 90° for whites. The prognathous
(projecting) jaws of the negro cranium are distinctive, as well as
the shape of the nasal opening, which in the black is an equilateral
triangle, while it is isosceles in the white. The books usually speak
of the Eskimo skull as pyramidal, which in point of fact is not true.
Inspection and examination of a large collection of Eskimo crania
has changed and greatly modified some of the previous notions of the
conventional Eskimo skull. From more than one hundred, collected in the
vicinity of Bering Strait,[574] I find that the skulls present very
considerable variations among themselves; some being brachycephalic,
others dolichocephalic. In many the facial angle is 80°, and in
one instance 84°, which exceeds that observed by me in many German
skulls. Nor is the prominence of the zygomatic arches such a constant
difference in the configuration as to justify one in speaking of the
skull as pyramidal. On the contrary, in many of the specimens lines
drawn from the most projecting part of the zygomatic arch and touching
the sides of the frontal bone, instead of forming a triangle on being
elongated, might, like the asymptotes of a parabola, be extended to
infinity and never meet. The index of the foramen magnum in these
skulls is about the same as that of European crania. The internal
capacity shows marked difference, the cubic contents of the endocranium
averaging that of the French or Germans.

As some modern writers lay great stress on the measurement of the
cranial capacity, not only as an aid to race identification, but as an
adjunct in the study of the criminal and insane classes, it may not be
amiss to give the salient facts relative thereto.

It is admitted that the cranial capacity may vary with the intellectual
state, hydrocephalic skulls, of course, being excluded. Microcephalic
adults give a figure inferior to that of gorillas, some being as low
as 419 c.c. Andaman Islanders and autochthonous Australians appear, in
respect to cranial capacity, to be most badly off. The capacity of an
Andaman has been found as low as 1,094 c.c.; while that of Australians
(autochthonous) and of some American tribes show an average capacity
of 1,224 c.c. in the normal as well as in their deformed crania. The
cranial capacity increases in the yellow races and attains its maximum
in the white races. In the middle European race 1,500 c.c. may be
accepted as the average; 1,750 c.c. is the maximum, and anything above
is macrocephalic; while the minimum is 1,206 c.c., which is rather too
low than too high. According to Topinard’s nomenclature of the cranial
capacity, macrocephalic in the adult European male are those having
a capacity of 1,950 c.c. and above; a large skull is one of 1,950 to
1,650 c.c.; average or ordinary, 1,650 to 1,450 c.c.; small, 1,450 to
1,150 c.c.; microcephalic 1,150 c.c. and below. It would seem that the
skulls of the insane are below the type, a measurement of sixteen male
skulls giving an average of only 1,449 c.c. Scotchmen head the list
with the most voluminous skulls, and according to a tabular statement
made up from Welcker, Aitken, Broca, and Meigs, the English come next,
with a capacity of 1,572 c.c. Then follow Eskimo, 1,483 c.c.; Germans,
1,448 c.c.; French, 1,403 to 1,461 c.c.; South African negroes, 1,372
c.c.; Ancient Peruvians, 1,361 c.c.; Malay, 1,328 c.c.; Mexican, 1,290
c.c.; Hottentot and Polynesian, each 1,230 c.c.; Australians, 1,364
c.c.; and Nubians, 1,313 c.c. The cranial capacity in man, like that
of the anthropoid apes, varies according to sex, the difference being
so great that it is necessary to measure separately.

In the troglodyte skulls of prehistoric times the variation is not
more than 99.5 c.c.; but in the contemporaneous races the difference
varies from 143 to 220 c.c. French craniologists usually speak of the
Auvernats as possessing the highest cerebral capacity (1,523 c.c.), and
mention the skull of a Parisian of 1,900 c.c. as the highest known.
Some Eskimo skulls, however, measure from 1,650 to 1,715 c.c., and
two eurycephalic Indian skulls in the anatomical section of the Army
Medical Museum measure respectively 1,785 and 1,920 c.c.

Mr. Havelock Ellis, speaking of the psychic characteristics of
criminals, says that the lower human races present a far larger
proportion of anatomical abnormities than the ordinary European
population; and Sir William Turner writes of the skulls collected
during the _Challenger_ expedition that although their number is
certainly too limited to base any broad generalization on, as to the
relative frequency of occurrence of particular variations in the
different races, there is obviously a larger proportion of important
variations than would occur in a corresponding number of skulls of
the white races. Thus, for example, the squamo-frontal articulation
is found in less than two per cent of European skulls, while it is
found in twenty per cent of negroes, according to Ecker, and 16.9 in
Australian skulls, according to Virchow. Again, the spheno-pterygoid
foramen is found in 4.8 per cent of European skulls and in 20 per cent
of American Indians; 30 per cent in Africans; 32 per cent in Asiatics,
and 50 per cent in Australians. The wormian bones are also more common
among the lower races; as a rule, the cranial sutures coalesce much
earlier and the teeth are more precocious.

PHOTOGRAPHY, though of undoubted service in craniometry, has been
applied as a crucial test in the matter of identity and found wanting.
It is objected to on the ground that it has no character of precision,
and that photographs of the skull have the common defect of being
central, not orthogonal projections, such as anthropometry requires.
Besides, the lenses of cameras are not uniformly perfect. Anatomists
know, moreover, that salient differences in any collection of crania
prevent methodical enumeration and constitute the stumbling-block of
ethnic craniology. Cephalometry shows, further, that dolichocephalic,
mesaticephalic, and brachycephalic skulls do not belong exclusively to
the white, the yellow, or the black race, but exist among the three as
a result of evolution.

On this subject Professor Lombroso, among the foremost contemporaneous
medico-legal writers, cites the cranial asymmetry of Pericles, of
Romagnosi, of Bichat, of Kant, of Chenevix, and of Dante, who presented
an abnormal development of the left parietal bone and two osteomata
on the frontal bone. Besides, there is the Neanderthaloid skull of
Robert Bruce and the ultra-dolichocephaly noticeable in the skull of
O’Connell, which contrasts with the mesocephaly of the Irish. The
median occipital fossa is noticeable in the skull of Scarpa, while
Volta’s skull shows several characteristics which anthropologists
consider to belong to the lower races, such as prominence of the
styloid apophyses, simplicity of the coronal suture, traces of the
median frontal suture, obtuse facial angle (73°), and moreover the
remarkable cranial sclerosis, which at places attains a thickness
of 16 mm. (five-eighths of an inch). Further mention is made of the
submicrocephaly in Descartes, Tissot, Hoffman, Schumann, and others.

De Quatrefages noted the greatest degree of macrocephaly in a lunatic,
the next in a man of genius. Cranial capacity in men of genius is
usually above the average, having been found as high as 1,660 c.c. in
Thackeray, 1,830 c.c. in Cuvier, and 2,012 c.c. in Tourgueneff. The
capacity is often found above the average in insanity, but numerous
exceptions occur in which it drops below the ordinary average, as in
the submicrocephalic skulls of Liebig, Döllinger, Hausmann, Gambetta,
Dante, and Shelley.

From what has just been said, it follows that skull measurements for
medico-legal purposes have no more significance than the fact that some
men are taller and some shorter than others. The medical jurist should,
therefore, not be too dogmatic in drawing conclusions as to race from
the skull alone. To complete the diagnosis in the matter of skeletal
race peculiarity, the splay foot of the negro with the unusual backward
projection of the heel-bone, as well as the greater relative length of
the tibia and of the radius, may be taken into consideration. There
are other characteristics of the lower jaw and of the facial bones
generally, the study of which leads up to the realm of transcendental
anatomy; so their further consideration would hardly appeal to the
“dispassionate, sympathetic, contemplative jury” of our enlightened
countrymen.


DETERMINATION OF HEIGHT OR STATURE.

When we have the entire skeleton to deal with, the height or stature
may be determined with a reasonable degree of certainty by allowing
from one to two inches for the soft parts. Most of the proportions
given in works on artistic anatomy approach mathematical exactness. For
instance, if both upper and lower extremities are extended after the
manner of spokes in a wheel, and a point corresponding to the umbilicus
be taken as a centre, the circumference of a circle described therefrom
should touch the bottom of the feet and the tips of the middle
fingers. When the arms are extended horizontally the line included in
the middle-finger tips equals the height in the generality of men,
although in exceptional cases it may vary. The negro giant, Nelson
Pickett, is reported to have been eight feet four inches high, while
his outstretched arms measured nine feet from tip to tip. Ordinarily
the upper part of the symphysis pubis is the centre of the body. Some
anatomists contend that this important point is really below the
symphysis in the average man. The length of the foot about equals that
of the head. According to Quetelet, its length is just one-ninth of the
body in women, a little more than one-ninth in men. The conventional
representation of the human foot with a second longer toe is, according
to Professor Flower (see “Fashion in Deformity”), of negro origin and
does not represent what is most usual in our race and time. Statistics
of measurements made in England by several observers on hundreds of
barefooted children fail to show one instance in which _the second toe
is the longer_.[575]

Taken singly the bones may enable an approximate estimate of the height
of the person when alive; but it should be remembered in connection
with this subject that the height is not a fixed quantity, since it
differs according to upright or recumbent position, also before and
after a night’s rest. Moreover, the alleged height of the deceased may
have been taken in boots and is probably incorrect.

Many tables of measurements have been constructed for the purpose
of determining the height from the dimensions of the bones; but the
relation that exists between the total height and the dimensions of
different bones varies according to age, sex, asymmetry, and individual
peculiarities, hence the tables will not bear the critical examination
that warrants their use with assured correctness, even in a majority
of cases. The femur is the bone that gives the best results in these
measurements. Isolated fragments have been included in the enumeration;
the nose and the middle finger multiplied by 32 and by 19 or 20 giving
the approximate height. While the foregoing calculations will not bear
scientific scrutiny, they are of sufficient importance to be taken in
connection with other facts in determining the probable length of the
skeleton. Among the most trustworthy of these tables are those of Dr.
Dwight, of Harvard University.


DETERMINATION OF AGE.

The age is a still more difficult matter to state precisely. Even
during life one may be as much as ten years out in guessing the age of
an adult, while the error may be from fifteen to twenty years in the
case of a corpse. Dr. Tourdes mentions a case where the age was guessed
as sixty and sixty-five in a deceased person aged eighty-five.

The state of the osseous system and the condition and number of the
teeth, which strictly speaking are not bone, are among the surest
guides in the determination of age. The signs furnished thereby may
vary according to the periods of increase, maturity, and decline.

During fœtal life and even at the epoch of birth the bone centres are
few. The distal end of the femur, the proximal end of the tibia, and
the astragalus are ossified at birth. Points of ossification appear
in successive order of development. The exact period at which the
bones begin to ossify and the progress of bony union being detailed
in standard works on anatomy, it would be superfluous to repeat them
here. These changes are, however, not absolutely certain as to time
and order, as the tip of the acromion process of the scapula sometimes
remains ununited throughout life; the ossification of the sternum and
of the costal cartilages is very uncertain, while the teeth, like
certain railway trains, are only due when they arrive.

From the character of the progress of consolidation of the skeleton
the age may be estimated with a reasonable approach to accuracy up to
twenty-five or thirty years, which is the stationary period as regards
alteration in the osseous system. Above this period it is difficult
to arrive at the age. About forty the cranial sutures[576] begin to
disappear, although the time of the closure of the sutures varies
within large limits; the coccyx becomes consolidated; ossification
begins in the thyroid cartilage and in that of the first rib (although
this state of the rib is regarded by many as pathological); the
lower jaw, which in the fœtus and in infancy formed an obtuse angle,
now assumes nearly a right angle. As senility progresses toward
decrepitude, the bones become lighter and more brittle, owing to
fatty atrophy, and their medullary canal larger; the jaw returns to
its infantile shape from loss of teeth and atrophy of the alveolar
processes; the bodies of the vertebræ (according to some authorities)
bevel off in front; osteophytes are formed, and the neck of the femur
approaches the horizontal. (See Abortion and Infanticide.)


DETERMINATION OF SEX.

In the matter of sex there should be no difficulty, after noting the
proof furnished by the aggregate characteristics of both male and
female skeletons. The points of contrast between the two skeletons
are not so striking before the age of puberty. Generally speaking the
cranial capacity of an adult woman is less, although it is contended
that since the great majority of males of the human species are taller,
heavier, and larger than the females, it follows that if due allowance
be made for these variations, it will appear that the brain capacity
of woman is relatively very little, if at all, inferior to that of
man. The mastoid processes of the female skull are smaller; the lower
jaw-bone is relatively smaller and lighter; the ribs are lighter and
compressed; the spine is relatively longer; the collar and shoulder
bones and the sternum[577] are smaller and lighter; there is a less
pronounced angle in the femur, the neck of which approaches a right
angle, while smallness of the patella in front and narrowness of the
articulating surfaces of the tibia and femur, which in man form the
lateral prominences, are said to make the knee-joint in women a sexual
characteristic. But it is the striking contrast in the pelvis that
furnishes a sexual significance that is of greater value than all the
rest of the skeleton together. From a glance at the text-book account
of the pelvis, it does not appear that much anatomical knowledge is
necessary to identify the important points that give shape to the
female pelvis. Its greater diameter (except the vertical), larger and
more curved sacrum and coccyx, and great spread of the arch of the
pubes are well-nigh incontestible signs. The differences as detailed
in the books can be objected to only on the possibility of a so-called
hermaphrodite pelvis in one of the other sex. We sometimes see a very
large pelvis in a subject who by a teratological freak became a man.
Masculine characteristics are, however, oftener found in women than
feminine characteristics in men; hence the conclusion that the presence
of feminine characteristics leaves but little doubt as to the sex, but
that certain masculine indications, while giving a great probability
for the male sex, are not absolutely decisive. (See Hermaphroditism.)

The finding of fœtal bones around or about the supposed female skeleton
is suggestive. It could not be inferred from this fact alone that the
woman was or was not pregnant at the time of death, since the absence
of fœtal remains on the one hand might imply their entire decomposition
in advance of those of the adult; on the other hand, the indiscriminate
habit of undertakers, who often bury still-borns with adults, may
account for their presence.


ACCIDENTAL SIGNS AND EVOLUTION OF THE TEETH.

The trade or occupation leaves but few marks on the bones that are
useful in the matter of identification. It is in the recent and
well-preserved cadaver, or, better still, in the living subject, that
the _professional signs_ are of importance. As a rule, the relatively
larger scapulæ point to the fact of a day-laborer; necrosis of the
lower jaw suggests a worker in phosphorus; worn and discolored teeth
a user of tobacco, and aurification of the teeth might suggest the
previous social condition. Gold crowns and fillings and dental
prosthesis generally are among the most common and, at the same time,
among the most useful signs of identification. By this means the bones
of persons killed by Indians on the Western plains have been recognized
years afterward. The traveller Powell, massacred in Abyssinia, was
recognized in this way. From the presence of artificial teeth and the
mechanical appliances for fixing them, dentists may recognize their
own work beyond a doubt. One of the most common-hackneyed of these
cases is that of Professor Webster.[578] Later cases, in which this
kind of proof established convincing and conclusive identification,
are those of Dr. Cronin, assassinated in Chicago in 1889, and of the
bomb-thrower, Norcross. Every now and then accounts appear in the daily
press of corpses having been recognized by inspection of the teeth.
In Washington, only a short time since, the remains of an unknown
man were exhumed from the Potter’s Field for judicial reasons. The
unrecognized body had been found in the Potomac in an advanced stage
of decomposition. From the signs furnished by the teeth the remains
were identified as those of a person who had disappeared mysteriously
and under circumstances that pointed to his having been murdered
at a Virginian gambling den, and his body thrown into the river.
In connection with this subject the Goss-Udderzook tragedy is of
instructive interest.

In every important case a cast of the mouth should be taken, in order
to set at rest any question that may subsequently arise as to the
condition of the jaw, the absence of teeth, their irregularity or
other dental peculiarities. A cast of the mouth of the deceased in the
Hillmon case showed all the teeth to be regular and perfect, while
it is alleged that Hillmon’s teeth were just the opposite. External
signs furnished by dentition may assist greatly in fixing both age and
identity. The evolution of the human dental system has been so well
studied from intra-uterine life to old age that we may approximately
tell the age, especially of children, from the teeth alone. This sign,
so valuable in childhood, loses its value as the dentition progresses.
Elaborate tables and dental formulæ to be found elsewhere deal with
the two periods of dentition, the relative position and number of the
teeth, and the like.

At birth the jaws show points of ossification only; but children are
sometimes born with central incisors, as the writer has, in common
with others, noted in several instances. The _first dentition_ takes
place from the seventh to the thirtieth month; the _second_ between
four and five years. In rachitic children these periods are later;
but a syphilitic taint may hasten their development. The twenty-eight
teeth characterize early youth. Wisdom teeth appear between eighteen
and twenty-five, sometimes as late as thirty years. The presence of
thirty-two teeth indicates maturity. This number is sometimes exceeded.
Dr. Tidy, in his work on “Legal Medicine,” reports having seen several
children between six and seven years with forty-eight teeth. Instances
are recorded of cutting the teeth at advanced age, seventy and one
hundred and eighteen years; of adults who have never had teeth; of
supernumerary teeth, and of a third dentition. What purported to be a
third dentition came under my notice some years ago, in the person of
an old negro “voodoo doctor.” A more recent case, said to have occurred
in an old man of seventy-four, at Seymour, Ind., is reported in the
_Weekly Medical Review_, St. Louis, Mo., April 16th, 1892, p. 314.

The pathological signs furnished by the teeth should, of course, be
looked upon as a personal characteristic that may lend additional light
in the question of identity.


CONGENITAL PECULIARITIES, DEFORMITIES, AND INJURIES.

But congenital peculiarities or injuries of other parts of the skeleton
are studied to greater advantage in determining proof or disproof of
identity. We may recognize cranial asymmetry; the peculiar conformation
of the idiot skull; the prognathous skull of the negro; the pyramidal
skull of some of the yellow races, and the oval head of the white
man; besides the ethnic artificial deformities already touched upon
in considering the question of race. A metopic cranium, a cleft
palate, a deformed spine or pelvis, a larger left scapula—indicative
of left-handedness; a shortened extremity; bowed legs, club foot, the
presence of extra fingers or toes, and the relative length of the
fingers are each and all valuable facts in judiciary anthropology. In
women of Spanish extraction the fifth finger is almost as long as the
fourth—a fact so well known that glove-makers take advantage of it in
sending gloves to Mexico, the Antilles, or to South America.

An estimate of the length of the hand seems to be a matter of
difficulty, notwithstanding the extensive observation of high
authority. In the majority of cases the ring-finger is longer than the
index.

Important evidence is furnished from the existence of _injuries_ such
as fractures, whether old or recent; the marks of gunshot wounds, of
trephining, amputation, excision, or other surgical operation on the
bones. The remains of an old, ununited fracture in his left humerus
enabled Sir William Fergusson to verify and settle all doubt as to
the identity of the body of the great missionary and explorer, Dr.
Livingston.[579] The existence of an injury may constitute evidence of
great importance to the accused, as happened in the case of an English
gentleman charged with murder, where the trial turned on the deposit of
callus in a broken rib, the only bone produced in court. From the state
of this callus there could be no doubt that the fracture must have
been produced about eight or ten days before death, and could not have
belonged to the deceased. There was, therefore, complete failure of the
identity, and the accused was discharged.[580]

On the other hand, circumstances may arise in which the existence or
not of an injury is a fact of great importance to the prosecution.
Among other specimens in the Army Medical Museum at Washington, the
bones of the forearm of Wirtz, executed for inhuman treatment of
prisoners during the Civil War, show no remains or trace of fracture;
yet it was claimed in defence at the trial that he could not have been
guilty of the atrocities attributed to him, for the reason that this
arm was disabled from a fracture.

_Disease of the bones_, whether hereditary or acquired, is an
essential descriptive element in reconstituting individuality.
Caries and necrosis, rickets, spinal disease, ankylosis, and other
external manifestations of bone lesion may furnish pointers of such
value as often to be incontestible. They are so evident as not to
require detailed mention; but much care in such cases is necessary to
distinguish between disease, decay, and violence, and artefacta. The
last may have resulted from the axe or spade of the grave-digger or
from post-mortem lesions made at the necropsy, as in the remains of
the notorious Beau Hickman of Washington, whose body on being exhumed
showed that sundry amputations and reamputations had been made on the
principal limbs. Having died in a public hospital, the cadaver had been
utilized in rehearsal of these operations previous to its burial in the
Potter’s Field.

Injuries of the phalanges, known as “baseball fingers,” are valuable
indications. This was one of the facts of identification in the
celebrated Cronin case.


DURATION OF BURIAL.

The condition of the exhumed bones may throw some light on the question
as to the probable length of time they have been under ground, as well
as the probable cause of death. If the bones were entirely denuded of
soft parts we should hardly expect them to be those of a corpse buried
only three or four months previously. The noting of such an injury as
a fracture inflicted by some sharp instrument on a skull found in a
cesspool was sufficient, with other evidence of a general character, to
convict a prisoner tried at the Derby Lent Assizes in 1847.

In all cases of the kind under consideration, special attention should
be paid to the surroundings, every little detail of which should be
noted with the utmost accuracy; for such articles as clothes, jewelry,
buttons, and in fact anything that may furnish an inference,[581] may
not only throw light on the identity of the person, but otherwise
assist justice. Cases are recorded in which the identity has been
established principally by the clothing found with the skeleton.
In Taylor’s “Medical Jurisprudence” a case is mentioned where the
skeleton, portions of clothes, buttons, and boots of a Cornish miner
were identified after twenty-six years’ submersion in water. Somewhat
similar circumstances, a few years ago, enabled the arctic explorer,
Lieutenant Schwatka, and others to identify the remains of Lieutenant
Irving, of the ill-fated Franklin party.

In exceptional circumstances, as that of great cold, for instance,
organic remains may be preserved indefinitely. Visitors to the Junior
United Service Club in London may remember the mammoth bones discovered
in digging the foundation of the club-house. Accounts of remarkable
preservation of bodies discovered a long time after the occurrence of
Alpine accidents, and the finding of well-preserved mammoth remains in
the Siberian ice, are matters of common knowledge. A few years since,
in assisting to take the remains of a mammoth from an ice cliff in
Escholtz Bay, Alaska, I came across the skull of a musk-ox and the
rib of a reindeer which showed the deformity and callus of a united
fracture, yet there are geological reasons for believing that thousands
of years must have elapsed since these remains were entombed in the ice.

A precaution to be taken in judicial investigation of bones is to
ascertain whether they belong to more than one body, as they may have
been put together with a view to deceive. Each bone should be examined
separately, to ascertain whether it is a right or left bone or belongs
to the same skeleton. They should be put together with intelligence
and care, and if incomplete parts of a skeleton they may be laid in
sand or putty and photographed, or the medical man may go further and,
Agassiz-like, reconstruct the skeleton from the fragments. In the case
of a fracture the bones should be sawn longitudinally in order to study
the callus.


THE HAIR AND NAILS.

Since the hair and nails resist decomposition an unusually long
time, and are even believed to grow after somatic death, they may be
considered as accessories of such value in the question that occupies
us as to make it possible to verify certain characteristics regarding
the remains of the cadaver even after years of inhumation. For
instance, hypertrophy of the great toe-nail, the length and color of
the hair, baldness, or a long beard might furnish evidence of the best
kind. Both hair and nails may, however, change after death. A case is
mentioned[582] in which the hair changed from a dark brown to red after
twenty years of burial. Accredited cases of the growth of hair after
death are also on record. Dr. Caldwell, of Iowa, states that he was
present in 1862 at the exhumation of a body which had been buried for
four years. He found that the coffin had given at the joints and that
the hair protruded through the openings. He had evidence to show that
the deceased was shaved before burial, nevertheless the hair of the
head measured eighteen inches, the whiskers eight inches, and the hair
of the breast four to six inches.[583] Quite recently in unearthing the
remains of an old cemetery in Washington, D. C., a number of persons
noticed that when the body of a young girl, supposed to be about twelve
or thirteen years of age, was taken up it was found that her hair
had grown until it extended from her crown to her feet. Many careful
observations seem to prove the molecular life of the hair and nails
after somatic death. It suffices to quote the well-known case mentioned
in Ogston’s “Medical Jurisprudence,” of several medical students who
were brought to trial for having in custody the dead body of an idiot
boy. When found on the dissecting-table the body was so disfigured
that there was only one means left of proving its identity. The boy
had a whim during life of permitting his nails to grow, and had not
allowed them to be cut for many years previous to his death. They had
completely curled round the tips of his fingers and toes till they had
thus come to extend along the palmar and plantar surfaces in a strange
way. The counsel for the prosecution availed himself of the knowledge
of this fact, and his proof seemed to be complete, when a medical
man came forward and gave in evidence that it was not an unusual
circumstance for the nails to grow for several inches after death. This
astounding statement so nonplussed the judge that the case was allowed
to drop as not proven.

In exceptional cases the hair may be _green_. I saw a case some years
since, for which no cause could be assigned, and only a few days ago
I saw another in a man who worked in a brass-foundry. At the Cronin
trial a barber, who had counted the victim among his customers,
recognized the shape of the head and texture of the hair. Subsequent
evidence of medical experts was conclusive as to the identity of hair
found clinging to a trunk, the hair cut from the head of the murdered
man, and that of a single hair discovered on a cake of soap. This
single strand, being lighter in color in some portions than in others,
seemed to indicate that it could not have come from the head of the
deceased, whose hair was brown. But it was shown that hair placed on
soap or other alkaline substances becomes bleached in a manner similar
to the color of a single thread. This evidence of vital importance
linked the hair found in the trunk with that cut from Dr. Cronin’s
head, and went far toward proving that one of the murderers had washed
his hands with the soap after the deed had been done.

Reviewing the signs furnished by the osseous system, it will be seen
that the study of the skeleton alone is beyond contradiction more
satisfactory and more important in establishing identity than that
of all the other organs. Consequently a correct interpretation of
the facts observed and judicious application of the rules deducible
therefrom may in the matter of a human skeleton put its identity
beyond a reasonable doubt. But the expert should remember that as no
two cases are just alike, unexpected questions and unforeseen features
may present themselves, giving to each case merits of its own. At best
the medical man’s conclusions will be probabilities, not certainties;
therefore his expressions of opinion should be the more guarded, as
upon it may hang the life of an innocent man.


IDENTIFICATION OF MUTILATED REMAINS.

Many of the foregoing remarks on the identity of the skeleton apply
in cases where mutilated remains or a portion only of the body has
been recovered. Circumstances often occur in which bodies may require
identification after having been drowned and partly eaten by fishes
or crabs, or after having been partly eaten by buzzards, or torn into
fragments by animals, as has happened in the remains of a dead infant
partly devoured by a dog, and in the case of a farmer who died in the
woods and was subsequently eaten by his own hogs. After accidents
and fires where many persons perish; after a railway disaster where
bodies have been mangled, drowned, burnt, and frozen, all in the same
accident; or after an explosion from steam or gas or in a mine, or
from gunpowder, dynamite, or other substance, the human remains are
generally in such a state as to defy all attempts at recognition.

To dispose of a dead body in order to avoid detection, criminals will
mutilate, disfigure, and chop into fragments the remains, which they
afterward place in a trunk, a wardrobe, or throw into a sewer or other
hiding-place. Scarcely a year passes that judiciary medicine is not
concerned with cases of the kind. The frequency of such crimes has been
attributed by some to the so-called contagion of murder; others offer
the simple law of the series in explanation; others still believe that
imitation is the principal cause. While there is no doubt a grain of
truth in each of these, less philosophic minds will look upon such a
beastly proceeding as a mark of the complete satisfaction sought by the
destructive instinct.

Why such things should be is of less concern than the fact that
criminal mutilation of the dead body is not confined to any age or
country. Though more frequent in the last fifteen years, it takes up
quite a space in the history of human cruelty. The violent passion,
wrath, and vengeance that caused the prophet Isaiah to be sawn in two
at the age of one hundred years by order of Manasses and Agag cut into
pieces by Samuel have not materially changed in the days of Jack the
Ripper; and we find such crimes in antipodal parts of the world, among
varied sociological conditions, no matter whether it be the North
American Indian, who scalps and mutilates his enemy and places the
severed penis in the mouth, or the civilized European, who cuts up the
body of his victim and serves it in a curry at a feast of assembled
friends.[584]

This new point of judiciary medicine has lately been elaborated by
European writers under the title of _Dépeçage Criminel_, a term which
applies to the operation resorted to by an assassin having for its end
the getting rid of the body of the victim and to render more difficult
the establishment of its identity.

The cleverness of experts scarcely keeps pace nowadays with the more
complicated proceedings adopted by criminals. In fact, at a trial of
this kind truth and science are often the under dogs in a fight, than
which none in forensic medicine is longer and more embarrassing. To
cause a rapid disappearance of the proofs of a homicide, with a view
to escape the investigations of justice, murderers have been known
literally to make hash of the victim which was subsequently eaten by
themselves and others. Gruner relates the case of a man who, having
killed and cut into pieces his victim, boiled and roasted the fragments
and ate them with his wife. Such examples, however, suggest morbid
rather than passional phenomena, which manifestly call for rigid
scrutiny into the mental state of the culprit, who may be more of a
lunatic than a malefactor.

In cases of infanticide new-born children are sometimes cut into pieces
and the fragments burnt in order to facilitate the disappearance of the
cadaver. There does not appear to be, however, any well-authenticated
instance of the operation having been done on a living child. Generally
the dismemberment is done in order to cause more ready disappearance of
the remains.

The medico-legal problem to be solved in cases of criminal mutilation
is to establish the identity of the victim and that of the author of
the crime.

Many apparently trivial circumstances may assist in the formation of an
opinion as to the identity of the culprit. If the victim be an adult,
a man is the author of the deed; if an infant, a woman, the mother, is
almost always the guilty one. The London _Lancet_ (May 30th, 1863, p.
617) reports a case in which the body of a child, of apparently four to
six months, was found in the sewage of a water-closet, minus an arm cut
off below the shoulder, presumably that a vaccination-mark might not be
adduced as evidence. A young woman was suspected. Several women deposed
having seen a dusky-brown mother’s mark near the child’s navel. After
steeping in pure water a portion of the skin said to include the mark,
and after washing, the mark gradually reappeared at the end of three
days, perfectly distinct. It was recognized by witnesses and produced
at the trial as corroborative evidence. The accused was found guilty.

In a case of infanticide at Tarare, in 1884, the upper extremity of a
fœtus was found to have been disarticulated after the manner of carving
the wing of a fowl. This having suggested to Dr. Lacassagne a cook as
the author of the crime, she was speedily discovered and convicted. A
few years later an analogous case occurred in Florence and was reported
by Dr. A. Montalti.

The instrument used for mutilating the body may furnish a suggestion
of identity, to be dispelled or affirmed upon further investigation.
The mode of section observed in various instances has led to the
recognition of a butcher as the culprit. An expert would have but
little trouble in distinguishing the hacking and mangling of a body
from the careful cutting and preservation of muscles and blood-vessels
in dissections made by medical students, whom the public, by the way,
invariably suspect in cases of mutilation. If it can be ascertained
that the instrument used was operated either by a left-handed person or
by an ambidexter, such a fact may prove of importance. Sometimes the
fragments are tied or sewn up in a package. The manner in which the
knot is tied may indicate the occupation of the culprit. In one case
the regularity of the sewing revealed that it was the work of a woman.
Examination of the remains of clothing and of neighboring objects where
the crime was committed may result in the identification of the victim
or of the murderer. Indeed, it is the careful noting of trivial facts
and their combination that is so valuable in all investigations of
this class. A compound fact made up of minor facts, which considered
severally would possess but little value, may sometimes solve the
puzzle in a case where no single fact of conclusive value is obtainable.

Having collected as much of the mutilated remains as possible, the
first step toward identification is to replace the pieces in anatomical
order, to note carefully their correspondence or otherwise, and to
ascertain whether the fragments belong to the same body or to two or
several individuals. This is often a delicate and difficult matter,
especially where decomposition is advanced or where the horror has been
pushed to its utmost limits, as in the case of a fratricide committed
in France by several persons, who fragmented the cadaver with a saw and
hatchet; boiled the remains and fed them to hogs; and, after crushing
the bones with a hammer, threw the fragments into a deep gorge.
Again, the body may be divided into numerous pieces, a hundred or
more, and disposed of in widely different localities, as in a pond, a
manure-heap, a river, or a cesspool. The chopped-up remains of infants
have been boiled in lye and afterward thrown into a privy or put in a
barrel of vinegar. A mother has also been known to cook with cabbage
the dismembered remains of her six-months’ child and serve it at a meal
of which both she and her husband partook.

Numerous counterparts of such cases happening in late years could
be cited where the object was to favor the disappearance of the
cadaver, and in which the establishment of the identity turned on
the examination of some small part of the organism; the uterus, the
spermatic cord, the lobe of the ear, the hair, or the teeth furnishing
a positive demonstration that led to judiciary results.

PUTREFACTION goes on very fast in a corpse that has been mutilated; but
it is slower in parts which, on being separated just after death, have
become bloodless in consequence of the hemorrhage. After submersion
the outward signs of putrefaction put a notable obstacle in the
way of identification, and after drowning the body becomes rapidly
unrecognizable.

Supposing it impossible to reconstitute the cadaver in all its
essential parts, it is always possible, by following the instructions
already given for examining the skeleton, to infer from one or
several parts of the cadaver the sex, age, height, and sometimes
pathological peculiarities of the victim. Examination of the skeleton
and teeth is of capital importance in an investigation of this class.
The indications furnished thereby having already been touched upon,
and being about all that we are justified in saying, it is only
necessary to repeat that many of the details relative to these special
indications are so confusing as to suggest caution in using the
statistical tables of even high authority, as the observations they
rest on are not of sufficient extent to deserve confidence.

A survey of the head, limbs, trunk, and genital parts will give the
most useful indications. The HEAD, in fact, is the surest index
for justice, and one that lends promptness in the discovery of the
assassin. Typical illustrations of this occur in the Goss-Udderzook
case and in the recent example of the bomb-thrower, Norcross. In the
case of a woman murdered by her husband at Antwerp in 1877 and cut
into one hundred and fifty-three pieces and her remains thrown into
a privy, the color of the hair, the lobule of a torn ear, and the
uterus of a woman having had children furnished special signs that
led to identity and condemnation. Examination of the _brain_ and its
membranes, though furnishing no very notable characteristics in the
matter of identification, may nevertheless be regarded as a natural
corollary to that of the skull. Brain weight, which is greatest
between thirty and forty years, 1,200 to 1,450 grams in man, 1,100 to
1,500 in woman, diminishes toward the sixtieth year. It is said that
the diminution takes place a few years sooner in the opposite sex.
The estimated loss of weight in a person of eighty years is admitted
to be from 90 to 150 grams. Another sign of age is the tendency to
degeneration found in the pineal gland, the cortical substance, the
optic and striate thalami, and in the brain capillaries.

The state of the eyes, if not too decomposed, may still become a sign
of identity. For instance, the color of the iris, an arcus senilis,
a pterygium, a cataract or an operation for the same, an iridectomy,
etc., are signs that occasion may utilize.

The TRUNK may show, as it has in several instances, incised wounds
that caused death before the mutilation. Besides, the organs therein
contained may by their weight, dimension, and tissue alteration
indicate the progress of age and of degeneration. Modifications of the
circulatory and respiratory apparatus are obviously characteristic. As
age advances the only organ whose weight increases with the number of
years, the heart, may become hypertrophied or dilated; its coronary
arteries may undergo an alteration; the pericardium thickens, and in
fact arterial atheroma and degeneration generally may begin between
thirty-five and forty years. It should, however, be borne in mind that
these signs of senility may come much later or even not at all. In a
man of eighty-four years Tourdes found no notable tissue lesion; in
another of one hundred and four Lobstein found no trace of ossification
of the arteries of the trunk and upper extremities, and in Thomas
Parr, aged one hundred and fifty-two years, Harvey found absolutely no
lesion of this kind. Although toward eighty years the heart increases
in weight in both sexes, the opposite has been observed in exceptional
cases. Placing the average weight of this organ in the adult at 266
grams for men, 220 for women, it will be found that progress in weight
gives toward the eightieth year an increase of 90 grams for men and
60 for women. Yet a case of cardiac atrophy is reported in a woman of
eighty whose heart weighed but 170 grams.

Diminished weight of the lungs becomes accentuated with years.
Especially is this the case after pseudo-melanosis and senile
emphysema. The state of the lungs of stone-cutters and miners and
various thoracic and abdominal diseases may likewise become signs of
identity. A cirrhosed liver, an enlarged spleen, a senile kidney, and
the like, are sufficiently obvious in their bearings on this question.

Like the trunk, the ARMS AND LEGS, in cases of the class under
consideration, show but few traces of disfigurement other than the
fact of their having been disjointed. The manner in which the sections
were made and the proceedings employed for the disarticulation would
equally affirm an experienced hand or the reverse. Such facts have of
late years assisted in the discovery and condemnation both of a farmer
and of a medical student, and also in the case of the cook already
mentioned, who cut off her child’s arm after the manner of carving the
wing of a fowl. The existence of deformity, injury, and disease in the
limbs should, of course, claim attention, but their relativity in an
investigation of the kind is too apparent to require further comment.

Mutilation of the GENITAL ORGANS is not so common. Persons familiar
with border warfare have observed the savage custom of cutting off
the victim’s penis and placing it in his mouth. In more civilized
communities the culprits are generally women in whom hatred and
ferocity prompt an act that marks the evident satisfaction sought by
the destructive instinct. Sometimes, however, the genital organs have
been cut from the cadaver of a woman, presumably for the purpose of
concealing traces of rape that may have preceded the murder. The signs
furnished by the female genital organs as to virginity, maternity,
and the menopause are so easily demonstrated at the necropsy as to
become positive proofs of identity. The uterus loses both in size
and weight with age. This along with hard, atrophied, and germless
ovaries attests the stoppage of menstruation. The question of identity
may turn on the age at which menstruation ceases, as happened in an
action of ejectment in the case of Doe on the demise of Clark _vs._
Tatom. The period known as change of life, when the uterus and ovaries
lose their function, though placed at forty-five and fifty years, is
quite uncertain. In spite of _averages_, menstruation is occasionally
continued to seventy and upward.[585]

The signs furnished by the genital organs of the male are of less
importance. Atrophy and diminished weight of the testicles and rarity
or absence of the spermatozoids are indications of senility; although
spermatozoids have been observed at ninety-four years. The structure
of the spermatic cord at different periods of life from the last
of intra-uterine to the first of extra-uterine life, in puberty,
and in old age, is accompanied by characteristic modifications of
development and regression, which are of interest on the question of
medico-forensic diagnosis of identity, as shown by Dr. Pellacani.[586]

Congenital deformity of the genital parts, as epispadias or
hypospadias; marks of circumcision, useful in India to identify
Mussulmans above eleven years; traces of disease that may have left
extensive cicatrices, as phagadenic chancre, suppurating buboes, etc.,
may also furnish characteristics of evidential value.


ENTIRE CADAVER DEAD BUT A SHORT TIME.

In the case of a body that has been dead a short time only, recognition
from the features, even by the nearest relatives, is often a matter
of the greatest difficulty. The change produced in the color and form
of the body, especially after drowning, is a formidable obstacle to
identification by likeness and general type of face. Pages could be
filled with the mere mention of the multiplied instances of mistaken
identity of the living, many of whom have been punished because they
had the misfortune to resemble some one else. How much more careful,
then, should be the medical examination of the remains in the progress
of decay, with the distortion and discoloration of the features, and
the consequent change or destruction of the peculiar expression of
the countenance by which human features are usually distinguished and
identified.

Among the innumerable instances of mistaken personal identity and cases
of resemblance mentioned in history and fable, from the time of Ulysses
down to the days of Rip Van Winkle’s dog Schneider, it appears that
this animal is credited with more sagacity than man in the matter of
recognizing his master even after years of absence. Indeed, recognition
by animals may be considered a proof of identity. Many persons can
recall instances of the kind, though perhaps not so dramatic as the one
of the dog in the Odyssey, who recognized his master after twenty years
of absence and died immediately thereafter.

As a matter of fact, time and circumstances will so alter resemblance
as to account for some of these most striking proofs of the fallibility
of human testimony that we see illustrated in chapters on mistaken
identity. We easily forget the true image of persons and things,
and time promptly modifies them. The evidence of the senses may be
so little trusted in this regard that father, mother, husband, and
nurse may attest a false identity in the case of their own children.
A nurse has been known to testify to the identity of the severed head
of a woman whom thirteen other persons were sure they recognized from
characteristic signs, when the supposed victim put in an appearance and
thus attested her own existence. The head of the unrecognized victim of
this strange controversy is preserved in the museum of the Strassburg
Faculty.

In another case of historical notoriety in France, forty witnesses on
each side swore to the personality; while in the celebrated Tichbourne
trial no less than eighty-five witnesses maintained positively, under
the most rigid and scrutinizing cross-examination, that a certain
person was Sir Roger Charles Doughty Tichbourne, a baronet; at the same
time a corresponding number were equally unshaken in their conviction
that he was a Wapping butcher, Arthur Orton.

Resemblances often bring about remarkable coincidences. A case is said
to have occurred in Covington, Ky., where two men met, each the double
of the other in form, stature, and feature, each having lost a right
leg, amputated at the knee, and each being blind in the left eye from
accident.

Puzzle and perplexity are not confined to remarkable cases and judicial
errors; for so many people are unskilled in correct observation that
it is a matter of common occurrence for two individuals to be mistaken
the one for the other. The writer for some years has frequently been
mistaken for a certain naval officer he is said to resemble, while the
officer in question has become so accustomed to being called “Doctor”
that he answers to the title without protest.

A case that has of late been much quoted in the journals is that of
Tiggs. What was supposed to be his mangled body was identified by
his wife, and further identification was forthcoming from one of his
children and the employer of the deceased. The coroner had granted
a certificate for burial, and as the hearse neared the door, to the
surprise of all parties the real Tiggs entered the house and gave a
satisfactory account of his absence.

Most mistakes of this kind are the result of existing imperfections
in the average human mind or in its use. So few people are skilled in
minute observation that Lord Mansfield’s dictum regarding the “likeness
as an argument of a child being the son of a parent” should be received
with a certain degree of reserve, especially in the question of
identity from likeness after death. In Ogston’s “Medical Jurisprudence”
a case is related of a father who could not recognize the body of his
son drowned at sea ten days previously. The mother, however, identified
her boy from the existence of two pimple-looking projections on the
front of the chest, which proved to be supplementary mammæ.

As a rule, the changes in the face and countenance two weeks after
death are such that it is well-nigh impossible to establish identity
from the features alone. Yet in exceptional cases the external results
of putrefactive decomposition have been so delayed or modified as
to produce very small changes in the features even after many years
of burial. Bodies have been known to retain a remarkable state of
preservation for long periods in such circumstances as burial in a
peat bog, in the sand of the desert, and in the frozen ground of cold
countries.

Even _photography_ in the matter of identity is not to be trusted.
Though an important accessory to other evidence, it is often, and very
properly, objected to by lawyers on the ground of being incompetent,
irrelevant, and immaterial. The picture presented for comparison may
not be an original one or it may have been taken years previously. The
difficulty in recognizing one’s own most intimate friends from pictures
taken only a few years back is a matter of common knowledge. Besides,
the negative from which the picture was taken may have been retouched
or altered, consequently it would not be the same as produced by the
camera, and is, therefore, valueless as evidence. It is held to be
incompetent to prove a photograph by merely asking a witness whether or
not he recognizes the picture in question as that of a certain person.

In all cases where photographic pictures are required in a court of
law the authorities are that the artist who took the picture must be
produced and show that he took the picture, and that it is a correct
representation of the original of which it claims to be a picture. If
possible the negatives themselves should be called for and reproduced.
Dr. Tidy states that he has known a volume of smoke appear in a print
as issuing from a chimney, and used as evidence of the existence of a
nuisance, when no smoke existed in the original negative. Only slight
familiarity with the method of taking photographic pictures and the
chemistry involved in the process suffices to show that many little
details of sensitizing, exposing, developing, and printing greatly
change the general appearance of the face. Some of the tricks that may
be played with photography, illustrating its comparative incompetency
as evidence in the matter of personal identification, I have seen in a
series of pictures at the Department of Justice in Washington. All were
photographs of the same person taken in such varying circumstances that
no two are alike or recognizable as the same person, until scrutiny
is brought to bear on the profile of the nose.[587] In considering
photography in its bearing on this branch of medicine, it must also be
borne in mind that a certain degree of imperfection arises from want
of uniformity in the lenses of cameras. I have already mentioned the
want of precision in photographing the skull, the common defect being
central not orthogonal projection such as anthropometry requires.


SURFACE SIGNS OF IDENTITY.

Examination of the surface of the skin and of its appendages may in
certain cases take decisive importance. Valuable medical proof is often
furnished by scars, nævi, growths on the skin, pock-marks, traces of
skin disease or of scrofula, and by the so-called professional stigmata
which would suggest the trade, character of work, or occupation of
the deceased. Thus cigarette-stains on the fingers of smokers, or
silver-stains on the hands of photographers, the horny palm of the
laborer, or the soft, delicate hand of one not accustomed to work,
would be indicative. The alterations in the hand make it, so to
speak, the seat of election; for in the majority of trades that may
be mentioned it is the hand alone that bears the principal marks of
daily work that indicate the calling. A case is recorded of a person
who previously to his assassination was lame and walked with a crutch.
Although the body was cut into fragments, an examination revealed in
the palm of the hands characteristic callosities, showing prolonged use
of support of this kind. In another instance of criminal mutilation a
tattoo-mark found on the arm proved an overwhelming charge against the
assassin and drew forth his confession. An accused was also convicted
of murder after establishing the only missing link, the question of
identity, which turned on the finding of cupping-marks and a tattoo
on the body of the murdered man. Personal identity of the bodies of
infants has, moreover, been proved by means of a small blister; by a
patch of downy hair; by the similarity existing between two pieces
of thread used to tie the umbilical cord; and by the severed end of
that part of the funis attached to the infant fitting precisely to the
corresponding portion attached to the after-birth. In addition to these
a methodical examination may put in evidence other facts that may be
derived from diverse influences that leave characteristic traces.


SIGNS FURNISHED BY MARKS, SCARS, STAINS, ETC., ON THE SKIN.

But of all the surface signs, whether congenital or acquired, that
may throw light on the antecedents of the decedent, birth-marks,
freckles, cicatrices, tattooes, and the professional signs furnish the
best indications. Birth-marks (_nævi materni_), from their supposed
indelibility, have given rise to discussion at many celebrated
trials. As a rule, these marks are permanent and seldom lose their
distinctness, though in exceptional cases they may undergo atrophy
in the first years of life. Hence testimony as to the existence of
birth-marks may often be uncertain when it has reference to a period a
long way back. In a recorded case of supposed recognition of a person
having a mark of this kind on her face, the alleged victim turned up
and established her identity as well as the fact that she did not have
the birth-mark attributed to her.

Before the introduction of the electrolytic method it was customary
to resort to cauterization, excision, vaccination, and tattooing the
pigmentary spot in order to modify or remove these congenital marks.
Such proceedings usually left more or less of an indelible scar which
occasion might utilize in the matter of medico-legal diagnosis. The
traces of nævi may, however, be entirely removed by electrolysis. I
have recently seen a nævus of large dimension on the face of a young
woman so completely destroyed as to leave no trace of the operation.

The _possibility of the disappearance of a scar_ in such circumstances
depends here, as it does in other instances, on the depth of the wound.
A cicatrix being the result of a solution of continuity in the derma,
the question arises whether a wound that has divided the derma without
loss of substance and healed by first intention leaves any perceptible
scar. Some are of the opinion that a cicatricial line persists, but
grows fainter with time. Histological examination in a question of
this kind might prove conclusive by showing the structure of the
fibrocellular tissue that constitutes the cicatrix. In the case of very
superficial burns or wounds, the scar may completely disappear if the
epidermis alone or the superficial part of the derma is attacked; on
the other hand, if there has been long suppuration or loss of substance
from ulcers, chancres, or buboes, especially on the neck, groins,
legs, or genital parts, traces of their lesion will be found. It may,
therefore, be asserted as a general rule that all scars resulting from
wounds and from skin diseases which involve any loss of substance are
_indelible_. A scar on the face is one of the points at issue in the
celebrated Hillmon case already mentioned.

As the matter of cicatrices is treated in the section on WOUNDS,
further mention here would be superfluous.


TATTOOING.

Of all the scars that speak, none in judiciary medicine affords better
signs of identity by their permanency and durable character and the
difficulty of causing their disappearance than those furnished by
tattoo-marks.

The custom of tattooing having existed from the earliest historical
epochs is of interest not only from an ethnological but from a medical
and pathological point of view, while it is of great importance in
its relation to medical jurisprudence in cases of contested personal
identification which may be either established or refuted by this
sign. So trustworthy is it in many instances as to become a veritable
ideograph that may indicate the personal antecedents, vocation, social
state, certain events of one’s life, and even their date.

Without going into the history of a subject mentioned by Hippocrates,
Plato, Cæsar, and Cicero, it may be pertinent to say that tattooing is
prohibited by the Bible (Leviticus xix., 28) and is condemned by the
Fathers of the Church, Tertullian among others, who gives the following
rather singular reason for interdicting its use among women: “_Certum
sumus Spiritum Sanctum magis masculis tale aliquid subscribere potuisse
si feminis subscripsisset._” (_De Virginibus_ velandis. Lutetiæ
Parisorum, 1675, fº, p. 178.)

In addition to much that has been written by French, German,[588] and
Italian authors, who have put tattooing in an important place in legal
medicine, the matter of tattoo-marks a few years since claimed the
attention of the law courts of England, the Chief Justice, Cockburn, in
the Tichbourne case, having described this species of evidence as of
“vital importance,” and in itself final and conclusive. This celebrated
trial has brought to light about all the knowledge that can be used in
the investigation of this sign as a mark of identity. Absence of the
tattoo-marks in this case justified the jury in their finding that the
defendant was not and could not be Roger Tichbourne, whereupon the
alleged claimant was proved to be an impostor, found guilty of perjury,
and sentenced to penal servitude.[589]

The practice of tattooing is found pretty much over the world, notably
in the Polynesian Islands and in some parts of Japan. It is, however,
not found in Russia, being contrary to the superstitions of the people,
who regard a mark of this kind as an alliance or contract with evil
spirits. Its use appears to be penal only, and is limited to Siberian
convicts. The degrading habit, confined to a low order of development,
exists at the present time as a survival of a superstitious practice of
paganism, probably owing to perversion of the sexual instinct, and is
still common among school-boys, sailors, soldiers, criminals, and the
lowest order of prostitutes living in so-called civilized communities.
Indeed, unanimity of opinion among medical and anthropological writers
assigns erotic passion as the most frequent cause of tattooing, and
shows the constant connection between tattoo-marks and crime. Penal
statistics show the greater number of tattooed criminals among the
lowest order, as those who have committed crimes against the person;
while the fewest are found among swindlers and forgers, the most
intelligent class of criminals. Even amid intellectual advancement
and æsthetic sensibility far in advance of the primitive man, such as
exists in London and New York, for instance, are to be found persons
who make good incomes by catering to this depraved taste for savage
ornamentation. Persons who have been to Jerusalem may remember the
tattooers, who try to induce travellers to have a cross tattooed on the
arm as a souvenir of the pilgrimage. If a writer in the _Revue des Deux
Mondes_, 15th June, 1881, is to be believed, it appears that the Prince
of Wales on his journey to the Holy Land had a Jerusalem Cross tattooed
on his arm, April 2d, 1862. The “Cruise of the _Bacchante_” also tells
how the Duke of York was tattooed while in Japan.

The process is now rapidly done, an Edison electric pen being utilized
for the purpose, and some of the wretched martyrs have the hardihood
to be tattooed from head to foot with grotesque designs in several
colors. I know of several instances: one of a man in Providence, R.
I.; another of a Portuguese barber, who has striped poles, razors,
brushes, and other emblems of his calling over the entire body. Another
man has likenesses of Abe Lincoln and of Kaiser Wilhelm of Germany on
his respective shins. A Nova Scotian, tattooed from head to foot, has
among other designs that of “St. George and the Dragon” on his back;
while a Texas ranchman, six feet two inches tall, underwent the torture
of eight weeks’ profanation of his body in order to appear in blue,
brown, and red, with an irreverent image on his back of the Immaculate
Conception and thirty-one angels.[590]

A singular mixture of erotic and religious emblems is often found among
the varied and fantastic signs used in tattooing. I recall the case
of a man who had represented on his back a fox-hunt, in which riders
followed the hounds in full pursuit of a fox about to take cover in
the anus. In another case of a man accused of criminal attempt on two
little girls, examination of the sexual organs revealed a tattoo on the
back of the penis representing the devil with horns and red cheeks and
lips. When the little girls were asked if the accused had shown them
his virile member, they answered, “This man unbuttoned himself and said
to us: ‘I am going to make you see the devil.’” In the face of such
affirmations, the accused confessed his crime and was condemned. Other
tattoo signs of the grossest emblems of unnatural passion have been
found among low prostitutes, pederasts, and tribades.

Statistics founded on numerous facts show many cases of tattooing
of the penis and even of the labia majora in the lowest order of
prostitutes, but these unclean images and revelations of lustful
instinct do not occur in the same order of frequency as those noted
on the forearm, the deltoid, or the inferior extremities. So valuable
are these marks in their bearing on the class, vocation, character,
and tastes of a person that the finding of anchors and ships would
indicate a sailor; while flags, sabres, cannon, and other warlike signs
would indicate a soldier, etc. It is also noticeable that in the
tattooing practised by lunatics the image relates in some way to the
nature of the peculiar form of mental disease from which they suffer,
and it is chiefly among the more severe and incurable cases of mental
degeneration that these signs are found. (See Dr. Riva’s article, “Il
tatuaggio nel Manicomio d’Ancona,” _Cronica del Manicomio d’Ancona_,
November, 1888.)

Almost always the motive that prompts these disfigurements of the
skin is the result of impulse, of thoughtlessness, or of orgy, and
almost all the tattooed come to repent of their folly. The subject
of _détatouage_ has of late taken a polemic turn in some of the
Continental journals. There are besides many cases on record of
severe accidents and complications following the operation, such as
severe inflammation, erysipelas, abscess, and gangrene. Dr. Beuchon
gives statistics of forty-seven cases, in which four were followed
by mutilation and eight by death either directly or in consequence
of an amputation. A certain proportion of what is known as _syphilis
insontium_ is to be found among the reported statistics of tattooing.
Dr. Bispham, of Philadelphia, informs me that while at Blockley
Hospital he saw thirty cases of syphilis that had been communicated by
the same tattooer.

Tattooing may sometimes be _accidental_. I have seen a departmental
clerk with an elongated tattoo on the back of his hand caused by
accidental wounding with an inked pen. A bursting shell during a
naval engagement has caused a characteristic tattoo on the face of a
well-known officer to be seen any day in Washington. Two cases of the
bluish-black discoloration of the skin from taking nitrate of silver
have also come under my observation. Both occurred in medical men,
one of whom lives in Florida, the other in the District of Columbia.
Silver discolorations of this kind are indelible, but I learn from
one of these gentlemen that large doses of iodide of potassium cause
temporary fading of the discoloration, which returns on stopping the
medicine.[591]

The _indelibility of tattoo-marks_ is such that their traces may be
easily recognized in the cadaver, though in a somewhat advanced
stage of putrefaction. They have even been recognized on a gangrenous
limb. Sometimes, however, it is impossible to recognize at first
sight whether there has or has not been a tattoo. A strong light and
a magnifying glass and a microscopic examination of the neighboring
ganglia to detect the presence of coloring matter may assist in
removing doubt. It has been found on the bodies of tattooed cadavers
that the ganglia are filled with grains of coloring matter of the
same nature as that employed in making the tattoo. Attempts to remove
tattoo-marks generally leave a vicious scar that is equally indelible.
An efficacious method is to tattoo the mark with a solution of
tannin, which is followed by brushing over with nitrate of silver.
A red cicatrix follows, and when the epidermis separates the tattoo
disappears. A better method, however, is by means of the electric
needle already mentioned in speaking of the electrolysis of nævi.

That _a tattoo-mark may disappear_ by the effects of time and leave no
trace is a matter that Cooper reports after examining the mutilated
remains of a cadaver, and the statistics of Caspar, Tardieu, and
Hutin place it as high as nine in the hundred. An officer of the
United States Revenue Marine lately called my attention to several
superficial tattooes on the back of his hand which had disappeared. The
deeper ones, however, remained. The _spontaneous disappearance of a
tattoo_ seems to be possible when the operation has been done in such
a superficial way as not to have passed the rete Malpighii, or when
the tattooing has been done with some substance not very tenacious,
as vermilion, which appears to be easily eliminated. But when the
particles of coloring matter penetrate into the fibro-elastic tissue of
the derma, the disappearance of the tattoo is rare.

In seventy-eight individuals tattooed with vermilion alone, Hutin
found eleven upon whom the tattoo had disappeared. Out of one hundred
and four tattooes made with a single color, India-ink, writing ink,
blue or back, not a single one had completely disappeared. The results
are identical if the tattooes are made with two colors. Thus in 153
tattooes with vermilion and India-ink, one instance showed a fading of
the black, in another it had completely disappeared, the red being well
marked; twenty times the red was partly effaced, the black being well
marked; and in sixteen cases the red had completely disappeared, the
black remaining visible.[592]

A tattoo-mark may sometimes be altered, in which case it proves
deceptive as an index. A workman changing his trade seeks to transform
the insignia of his first calling into those of the second, or a
criminal in order to avoid identity will make a change. In the former
instance the transformation is not difficult to detect, but in the
latter so much care is required to recognize the change that penal
science has relegated the sign to a secondary place.

As to the length of time since a tattoo-mark has been executed,
authorities are that it is impossible to tell after two or three weeks.
Whether a tattoo-mark is real or feigned is easily settled by simply
washing the part. This question, as well as that of the judicial
consequences of such marks, is hardly pertinent to the matter in hand.


VALUE OF PROFESSIONAL STIGMATA.

The so-called professional signs are of undoubted value in the surface
examination for establishing identity, but it does not seem that
their importance warrants the extreme prolixity given to them by some
Continental writers, and even by one in the city of Mexico, Dr. Jose
Ramos.[593] For instance, it is pretended that cataract is more common
among jewellers because of the fineness of their work; yet out of 952
cataracts, of which a record has been kept, only two cases occurred in
jewellers. Besides, there is not one special sign or physical trace
left on the body by which a prostitute may be known, notwithstanding
the fact that in life the collective appearance would seldom deceive an
experienced man.

Only in the case of sodomy, where anal coitus has been frequent, would
characteristic signs be found. On anal examination of 446 prostitutes,
Dr. Coutagne[594] found the signs of post-perineal coitus in 180.
He cites the case of a young prostitute presenting the astonishing
contrast of a gaping anus surrounded by characteristic rhagades, with
the genital parts of an extreme freshness, a very narrow vagina, and
non-retracted hymen, constituting by their reunion a still firm ring.
A fact yet more curious is shown by a specimen in the collection of
the museum of the laboratory of legal medicine at Lyons. The genital
organs of the cadaver of a woman of twenty-eight or thirty years showed
a hymen intact and firm, but on examining the anal region it was
surprising to find an infundibuliform deformity with all the signs of
sodomitical habits, which of course rectified the opinion that had been
made regarding the chastity of this woman.

Many of the signs enumerated as peculiar to different callings have
no special anatomical characteristic that is easy to distinguish with
precision, consequently they do not present a degree of certainty or
constancy sufficient to be invoked as strong medico-legal proof of
identity. Moreover, the effects of time or treatment may have caused
alteration or disappearance of many of the signs in question, which
would at best be of negative rather than of absolute value.

To arrive at an impartial appreciation of the relative value of the
professional stigmata as signs of identity, a certain number of the
signs should be thrown aside as illusory. Others, on the contrary, are
durable, special, and constant, and assist in establishing the identity
accordingly as the lesions or alterations are complete or evident; but
it should be borne in mind that the physical alterations and chemical
modifications resulting from the exercise of certain trades are not in
our country so important from a medico-legal point of view as they are
in Europe, where class distinctions are more defined.


VALUE OF STAINS AND DIFFERENT IMPRINTS.

In the same manner that a very small portion or fragment of the human
body may suffice to establish the _corpus delicti_, so will minute
remains or traces, as finger-marks, footprints, and other material
surroundings, even smells or traces of perfume, be of great assistance
to justice in determining the identity of both culprit and victim, and
at the same time throw light on the attendant circumstances of the
deed. The traces of a bloody hand or foot, smears of tar or paint,
the various spots or stains found on fabrics, instruments, etc., may
involve questions of great nicety the relativity of which is apparent,
especially in criminal trials. Newspapers have familiarized the public
with many cases of the kind, in which medical experts have demonstrated
blood and other stains with sufficient accuracy and positiveness to
satisfy a jury. The Cronin case is a notable instance.

IMPRINTS MADE BY FINGER-TIPS are known to be singularly persistent.
In four specimens of inked digit marks of Sir William Herschel, made
in the years 1860, 1874, 1885, and 1888 respectively, though there
was a difference of twenty-eight years between the first and last, no
difference could be perceived between the impressions. The forms of
the spirals remained the same, not only in general character, but in
minute and measurable details, as in the distances from the centre
of the spiral and in the direction at which each new ridge took its
rise. Sir William Herschel has made great use of digit-marks for
the purposes of legal attestation among natives of India.[595] The
extraordinary persistence of the papillary ridges on the inner surface
of the hands throughout life has been a theme of discussion by the
Royal Society,[596] and Mr. Galton has devised a method of indexing
finger-marks.[597]

The IMPRESS OF A NAKED FOOT covered with blood may serve to direct the
investigations of justice. In a criminal affair in France, where eight
individuals were implicated, comparative experiments upon the identity
of the foot, made with a view to determine to which of the individuals
ought to be attributed the bloody footprints found near a wardrobe,
it was shown that a degree of recognition could be established on
reproducing the footprints with defibrinated blood. From the eight
imprints of the left foot of each individual, impregnated with blood,
measures and comparisons could be made, thus helping to establish the
difference or the resemblance with those found near the wardrobe.

Imprints thus obtained may be looked upon as a kind of documentary
evidence, but too much importance should not be attached to them as
articles tending to prove criminality. The futility of such evidence
is shown in the varying sizes of different impressions of the foot of
the same person—first in rapid progression, secondly by standing,
and third by slow advance. The results appear less sure in the case of
footprints made in mud, sand, dust, or snow. Nevertheless many facts
relating thereto may be noted with great certainty. The question has
been mooted as to whether or not the impress left upon the soil gives
always the exact dimensions of the foot that has made them. One side
has contended that the footprints _are a little smaller_, while the
other refutes this opinion and thinks that they are _a little larger_.
The consistency of the soil, which does not seem to have entered into
the discussion, doubtless accounts for the small differences that have
given rise to this discrepancy of opinion. The outline of the sole of
the foot and the relative position of the toes are more or less neatly
designed as the ground is more or less wet or soft. The means employed
for taking impressions of foot or other tracks in mud, etc., show
considerable ingenuity on the part of those who have elaborated the
subject. To discover foot-marks in mud, powdered stearic acid is spread
over the imprint and a heat of at least 212° is applied from above. By
this means a solid mould may be taken of the imprint. These researches
have been extended to the exact reproduction of imprints left upon snow
by pouring melted gelatine upon the imprint previously sprinkled with a
little common table salt, which rapidly lowers the temperature of the
snow about fifteen degrees and permits the mould to be taken without
too much hurry. The study has been extended to the configuration of the
plantar imprints in tabetics, but it does not appear so far to be of
much medico-legal value.

The question may arise as to the length of time since the imprints
were made. This would, of course, depend upon many circumstances, as
weather, temperature, and the like. It is a fact that in Greenland
footsteps in snow have been recognized many months after they were
made. A few summers ago, on an arctic expedition, I climbed Cape
Lisbourne, Alaska, in company with another person. The ground being
thawed in many places, our feet left very decided imprints in the mud.
A year afterward I visited the same spot, and on again making the
ascent was astonished to recognize the footsteps made the year before.

Circumstances sometimes direct expert attention to vestiges of other
animals. The tracks of a dog or of a horse may become the object of a
medico-legal inquest. The books record a case in which it was necessary
to ascertain whether a bite had been made by a large or a small dog.
This question was settled by producing the dogs and comparing their
teeth with the scars. Persons familiar with border life know the
importance of trails and the minute observation that is brought to bear
on them by the experienced frontiersman. In following cattle-thieves
and murderers, while with the Fourth United States Cavalry on the Rio
Grande frontier, I have known the peculiarity of a horse’s footprint in
the prairie to tell a tale of great significance.

Observation in this respect may extend to such apparently trivial
objects as the tracks of wheels, as those of a wagon, a wheelbarrow,
or a bicycle, or to the singular imprints left by crutches or a
walking-stick. The imprint left in the ground by a cane usually occurs
in the remarkable order of every two and a half or every four and a
half steps. Investigation of such circumstances may result in material
facts that may be of great assistance in establishing the relation of
one or several persons with some particular act.


DEFORMITIES AND PATHOLOGICAL PECULIARITIES.

The existence of deformities or injuries is so apparent in serving to
establish identity that it seems almost superfluous to mention them,
except for the purpose of deciding whether the wounds were made during
life or after death. In the matter of gunshot wounds on persons who
took part in the late Civil War, many of whom unfortunately belong to
the vagrant class and are often found dead, their wounds sometimes
afford excellent means of identification. In many instances the
multiple character of these wounds is almost incredible. When on duty
at the Army Medical Museum, in connection with the preparation of the
“Medical and Surgical History of the War of the Rebellion,” I saw a man
who was literally wounded from the crown of his head to the sole of his
foot, the scars being fifty-two in number.

WOUNDS MADE DURING LIFE might show the suggillation peculiar to
bruises or traces of inflammation. Besides, the gaping nature of the
lips of the wound, the fact of hemorrhage having taken place and the
coagulation of the blood, the infiltration of blood into the cellular
tissue, etc., are surgical facts that would leave but little doubt as
to the infliction of the wounds during life.

The _cause of death_ is often a difficult matter to determine, as
it may have been accidental, suicidal, or the result of homicide.
The causes relating thereto are, moreover, so many and varied that
space and time compel a reference to other headings of this work. In
forming an opinion as to _the probable date of death_ the extent of
putrefaction is the chief guide. If death is quite recent, we may be
guided by the post-mortem rigidity or the extent to which the body has
cooled. The march of putrefactive decomposition would, of course, be
regulated by circumstances. It takes place very rapidly in persons who
have succumbed to excessive fatigue or to any disassimilative excesses
or derangement resulting in ante-mortem change of the tissues, such
as those occurring in virulent or infectious diseases. The body of
an infant decays more rapidly that that of an adult. The course of
putrefactive phenomena is also influenced by the seasons, the extent
of the exposure to air, and to other mesological causes. There is a
manifest difference in the special putrefactive change accordingly as
a body is buried in the earth, submerged in a fluid, thrown into a
cesspool, or buried in a dung-heap.

In certain cases, especially where the body has been much mutilated, it
may be desirable to know whether there was _one or several murderers_.
While no definite rule can be laid down on this point, we are justified
in supposing that there were two or more assassins when the body of the
victim shows both gunshot and knife wounds, or that two persons were
concerned in the dismemberment and mutilation of a body which shows the
simultaneous presence of parts skilfully cut, while others show evident
awkwardness.

Where there is _more than one mortal wound_ on the same dead body,
a question of medico-legal significance may arise. This occurred in
the Burton murder case at Newport, R. I., in 1885, which gave rise to
discussion of the following abstract question: “Whether it is possible
for an individual, with suicidal intent, and in quick succession,
to inflict a perforating shot of the head and another of the chest
implicating the heart. Or, reversing the proposition, is it incredible
that a person bent on self-destruction can, with his own hand, shoot
himself in the heart and in the head?”

After consideration of the case referred to and reversal of the
previous decision of the coroner, the supposed suicide proved to be
a homicide. Yet if the abstract question of possibilities is alone
regarded, there is no doubt of the fact that a suicide could shoot
himself in such manner, both in the head and the heart, or, changing
the order, of shots in the heart and in the head. The number of
cases recorded establishes beyond a doubt the feasibility of the
self-infliction of two such wounds, and make it clear that the theory
of suicide may be maintained in such circumstances.[598]


JUDICIAL ANTHROPOMETRY.

Of late years the subject of anthropometric identification has taken
such a place before justice that it cannot be ignored by the medical
legist. The facts of scientific anthropology have here been applied in
such a way as to establish with great certainty both the present and
future identity of individuals who attempt dissimulation of their name
and antecedents. The method used principally in the identification
of criminals and deserters from the army has been adopted in the
public service[599] and by most municipalities, with the exception of
New York, where the subsequent identification of persons connected
with municipal affairs has been and may be a source of no little
embarrassment.

The system is based on three recognitory elements: photography,
anthropometric measurements, and personal markings, from which a
descriptive list is made that gives absolute certainty as to individual
identity.

Owing to the illusory nature of photography and the difficulty
in finding the portrait of any given individual in the large and
constantly increasing collection of a “rogues’ gallery,” the matter
has been simplified and facilitated by grouping the photographic
collection according to the six anthropological coefficients of sex,
stature, age, and color of the eyes. Each of these primordial groups is
again subdivided in such a way as to reduce the last group to a small
number, when the portrait is easily found and verified on comparing the
measurements of the head, of the extended arms, the length of the left
foot, and that of the left middle finger.

The photographic proof for each individual consists of two portraits
side by side, one of which is taken full face, the other in profile of
the _right_ side. On the back of the photographic card is recorded with
rigorous precision all personal markings or peculiarities.

The measurements, which can be made by any person of average
intelligence in three or four minutes, are extremely simple. The
_right_ ear is always measured, for the reason that this organ is
always reproduced in the traditional photograph which represents the
right face. Other special measurements are taken on the left side. The
height sitting, dimensions and character of the nose, color of eyes,
etc., are also noted.

It is contended that by these measurements alone the identity of an
individual whose face is not even known may be established in another
country by telegraph. The application of the system has proved of great
service in the apprehension of deserters from the United States army
(when the authorities have been able to find the card), while it is
claimed to have caused the disappearance of numerous dissimulators of
identity in the prisons of Paris. The police authorities of that city
report that out of more than five hundred annual recognitions by the
foregoing means, not one mistake has yet occurred.[600]

To avoid a _possible source of error_ mensuration of the organs and the
ascertainment of their form may be resorted to in the case of a cadaver
that is much decayed, or in one that has been purposely mutilated or
burned by the assassin in order to prevent recognition. A sufficient
number of cases may be cited in which the measurement of a limb or a
bone of a deceased person known to have been lame or deformed during
life has resulted in the establishment of identity or the reverse.

A mistake may be prevented in the case of supposed mutilation of a
drowned body, which may have been caused by the screw of a passing
steamer. Other errors may result from carelessness, incorrect
observation of signs, and neglect to follow the ordinary precautions
that should obtain in all researches on identity of the dead body.

Certain circumstances indicative of the _mental state of the culprit_
may throw light on the identity. A person of unsound mind would
certainly be suggested as the perpetrator of such a deed as that of
the woman already mentioned, who after killing and cutting up her
infant, cooked portions of the remains with cabbage and served them
at a meal of which she herself partook. Equally conclusive should be
the inference in the case cited by Maudsley of a person who, for no
ascertainable motive, kills a little girl, mutilates her remains, and
carefully records the fact in his note-book, with the remark that the
body was _hot and good_.

The _handwriting_ left by the assassin might also furnish a strong
presumption as to the existence of a mental lesion, since the writing
of the insane is often characteristic, especially in the initial stage
of dementia. I recall the case of a former patient, an _aphasic_,
imprisoned for having stabbed a man in the abdomen and for having
wounded his wife in such a way that her arm had to be amputated. Having
lost the power to express himself phonetically, this man used a book
and pencil, but his writing showed a degree of _agraphia_ which alone
would establish his identity beyond a doubt.

While it is quite possible that dishonest transactions, and even theft,
may take place by _telephone_ and the voices of the perpetrators may
be unmistakable between distant cities, it is more likely that the
phonographic registration of speech or other sound by means of a
_gramophone_ should become a matter of medico-legal investigation and a
possible means that may lend great assistance in establishing personal
identity. Although no precedent may be cited, it is not going into
the domain of theoretical hypothesis to mention a discovery of such
real scientific certainty that for years after death, and thousands of
miles away, gives an indefinite number of reproductions that cannot
possibly be mistaken by any one familiar with the voice before it had
become “Edisonized.” Some gramophone disks lately shown me from Germany
registered greetings and messages to relatives in Washington, who were
delighted to recognize the exact reproduction of familiar tones and
accents of the Fatherland.

So limitless is the field of research in this direction that there is
scarcely an anthropological, biological, or medical discovery that
may not sooner or later be applied with profit in the investigations
of personal identity where the combined efforts of an attorney and an
expert are required.

After the most rigid and scrutinizing anatomical and material
examination is made and the closest inquisition entered on, it may
often be impossible to give a reasonable explanation for the cause
of the physical facts observed. The medical man should remember that
his is the one great exception to the rule that rigidly excludes
opinions, and that scientific men called as witnesses may not give
their opinion as to the general merits of the case, but only as to the
facts already proved. This qualifying rule being altogether reversed
in investigations into personal identity, and the physician’s opinion
as to identity being indispensable, it becomes a matter of most
serious import that this opinion should be grounded upon absolute and
well-attested facts.



MEDICO-LEGAL DETERMINATION

OF

THE TIME OF DEATH.

BY

H. P. LOOMIS, A.M., M.D.,

_Professor of Pathology in the University of the City of New York;
Visiting Physician and Curator to Bellevue Hospital, New York;
Pathologist to the Board of Health, New York City; President New York
Pathological Society, etc., etc._



MEDICO-LEGAL DETERMINATION OF THE TIME OF DEATH.


SIGNS OF DEATH.

THE cessation of respiration and the absence of audible heart-beats
are signs generally regarded as sufficient in themselves to determine
the reality of death. But persons have been resuscitated from a state
of asphyxia or have recovered from a state of catalepsy or lethargy in
whom, _to all appearances_, the respiratory and circulatory processes
have been arrested.

So it is advisable that we should be acquainted with some absolute
tests of death which are not connected with the heart-sounds or the
respiration.

It is well known that these important functions, although apparently
held in abeyance, must be speedily re-established so as to be
recognized, or death will rapidly follow. This condition of apparently
suspended animation is seen among hibernating animals; the bear, for
instance, will remain for four or five months without food or drink
in a state of lethargy—the heart-action and respiration hardly
appreciable. Yet it will be sufficiently rapid to sustain life during
the slow metabolic processes. A number of well-authenticated cases are
reported in which persons could slacken their heart-action, so that
no movement of the organ could be appreciated. The case of Colonel
Townsend, reported by Cheyne, is an example. He possessed the power of
apparently dying, by slowing his heart so that there was no pulse or
heart-action discernible. The longest period he could remain in this
inanimate state was half an hour.

Instances have occurred in the new-born child where without question
there have been no heart-beats or respiratory movements for a number of
minutes, the limit being set at five.

These are exceptional cases, and it is setting at defiance all
physiological experience to suppose that the heart-action and
respiration can be suspended entirely when once they are established,
for a period as long. So, then, if no motion of the heart occurs during
a period of five minutes—a period five times as great as observation
warrants—death may be regarded as certain.

The respiratory movements of the chest are sometimes very difficult
to observe. They can always be better appreciated if the abdomen and
chest are observed together. There are two methods to determine whether
respiration is absolutely suspended or not. First, by holding a mirror
in front of the open mouth, observing whether any moisture collects on
its surface. Second, by placing on the chest a looking-glass or basin
of water, and reflecting from it an image by artificial or sun light.
The slightest movement would be registered by a change in position of
the image. While the writer considers the absence of heart-beats and of
respiratory movement an absolute test of death, still some cases may
occur in which the establishment of this test is very difficult, and
the following additional tests may be employed:

1. Temperature of the body same as surrounding air.

2. Intermittent shocks of electricity at different tensions passed into
various muscles, giving no indication whatever of irritability.

3. Careful movements of the joints of the extremities and of the lower
jaw, showing that rigor mortis is found in several parts.

4. A bright needle plunged into the body of the biceps muscle
(Cloquet’s needle test) and left there, showing on withdrawal no signs
of oxidation.

5. The opening of a vein, showing that the blood has undergone
coagulation.

6. The subcutaneous injection of ammonia (Monte Verde’s test), causing
a dirty-brown stain indicative of dissolution.

7. A fillet applied to the veins of the arm (Richardson’s test),
causing no filling of the veins on the distal side of the fillet.

8. “Diaphanous test:” after death there is an absence of the
translucence seen in living people when the hand is held before a
strong light with the fingers extended and in contact.

9. “Eye test:” after death there is a loss of sensibility of the eye
to light, loss of corneal transparency, and the pupil is not responsive
to mydriatics.


POST-MORTEM CHANGES.

The human body after death undergoes certain changes which will be
discussed under the following heads:

1. Cooling of the body.

2. Flaccidity of the body.

3. Rigor mortis.

4. Changes in color due to

  (_a_) Cadaveric ecchymoses.
  (_b_) Putrefaction.


COOLING OF THE BODY.

Immediately after death there is a slight rise of temperature, supposed
to be due to the fact that the metabolic changes in the tissues still
continue, while the blood is no longer cooled by passing through the
peripheral capillaries and lungs.

The body gradually cools and reaches the temperature of the surrounding
air in from fifteen to twenty hours; this is the ordinary course,
but the time may be influenced by a variety of causes, such as the
condition of the body at the time of death, manner of death, and
circumstances under which the body has been placed.

In certain diseases, as yellow fever, rheumatism, chorea, and tetanus,
the temperature of the body has been known to rise as high as 104° F.
and remain so for a time. Again, it has been observed that when death
has taken place suddenly, as from accident, apoplexy, or acute disease,
the body retains its heat for a long time. The bodies of persons dying
from hanging, electrocution, suffocation, or poisoning by carbon
dioxide, do not generally cool for from twenty-four to forty-eight
hours, and cases are recorded where three days have elapsed before the
body was completely cold. On the other hand, bodies dead from chronic
wasting diseases or severe hemorrhage cool very rapidly, even in four
or five hours.

In determining the temperature of a dead body the hand is not a
reliable guide: the thermometer should always be used.


FLACCIDITY.

The first effect of death from any cause is general relaxation of the
entire muscular system. The lower jaw drops, the eyelids lose their
tension, the limbs are flabby and soft, and the joints become flexible.

In from five to six hours after death, and generally while the body is
in the act of cooling, the muscles of the limbs are observed to become
hard and contracted, the joints stiff, and the body unyielding. Muscles
which are contracted in the death-agony do not necessarily become
relaxed at any time.

The muscular tissues in the dead body can be considered as passing
through three stages: (1) flaccid but contractile, (2) rigid and
incapable of contraction, (3) relaxed and incapable of further
contractility.


RIGOR MORTIS.

This is sometimes called cadaveric rigidity and occurs generally within
six hours after death and disappears within sixteen to twenty-four
hours. Many theories have been advanced to account for it, but the most
probable one is that the rigidity is due to the coagulation of the
myosin in the muscles by the weak acids which are no longer removed
from the system; the muscles always give an acid reaction and are
opaque instead of transparent; after putrefaction has set in ammonia is
developed, the myosin dissolved, and so flaccidity results.

Rigor mortis occurs first in the muscles of the eyelid, next the
muscles of the lower jaw and neck are affected, then the chest and
upper extremities; afterward it gradually progresses from above
downward, affecting the muscles of the abdomen and lower limbs. The
rigidity disappears in the same sequence. The period after death
when rigor mortis manifests itself, together with its duration, is
chiefly dependent upon the previous degree of muscular exhaustion.
Brown-Séquard has demonstrated that the greater the degree of muscular
irritability at the time of death, the later the cadaveric rigidity
sets in and the longer it lasts. He has also shown that the later
putrefaction sets in, the more slowly it progresses.

The more robust the individual and the shorter the disease, the more
marked and persistent is this muscular rigidity. It has been noticed
that the bodies of soldiers killed in the beginning of an engagement
become rigid slowly, and those killed late quickly. This explains the
reason why bodies are sometimes found on the battle-field in a kneeling
or sitting posture with weapons in hand.

If the rigidity of rigor mortis after it is once complete is overcome,
as in bending an arm, it never returns; but if incomplete it may
return. This will serve at times to distinguish real death from
catalepsy and its allied conditions. While the _average_ duration of
rigor mortis has been given as sixteen to twenty-four hours, it must
be remembered that in some cases it has been known to last only a few
hours, as in death by lightning or by electrocution. In other cases it
has persisted for seven and fourteen days.

This long continuance of rigor mortis has been noted in death from
strychnine and other spinal poisons, in suffocation, and in poisoning
by veratrum viride.

Atmospheric conditions modify to a large extent the duration of rigor
mortis. Dry, cold air causes it to last for a long time, while warm,
moist air shortens its duration. Also immersion in cold water brings on
rigor mortis quickly and lengthens its duration.


CADAVERIC ECCHYMOSIS—CADAVERIC LIVIDITY OR HYPOSTASIS.

Within a few hours after death the skin of the body, which is of a
pale, ashy-gray color, becomes covered by extensive patches of a bluish
or purple color, which are most pronounced and are first seen on the
back part of the trunk, head extremities, ears, face, and neck, and are
due to the blood, before coagulating, settling in the most dependent
parts of the body, producing a mottling of the surface with irregular
livid patches. There is also a stagnation of blood in the capillary
vessels, especially in those in the upper layer of the true skin or in
the space between the cuticle and cutis. The discoloration continues to
increase until the body is cold, when it is entirely arrested. Later
on, just before putrefaction begins, the color deepens, and the change
appears to proceed from an infiltration of blood pigment into the
dependent parts of the body.

At the same time the discolorations are appearing on the surface of the
body, _internal hypostasis_ is also taking place, most marked in the
dependent portions of the brain, lungs, intestines, kidneys, and spinal
cord.

This condition in the brain may be mistaken for so-called congestive
apoplexy; in the lungs, for pulmonary apoplexy or the first stage
of lobar pneumonia; in the intestines and spinal meninges, for the
beginning of inflammatory changes.

The position of these hypostases will afford the best correction for
this possible error. The appearances presented by cadaveric ecchymoses
have often been mistaken for the effects of violence applied during
life. Innocent persons have been accused and tried for murder or
manslaughter on charges afterward proved to be groundless. Therefore it
is of the utmost importance that the medical jurist should be able to
distinguish between ante-mortem and post-mortem ecchymoses.

The following are the points of difference:

1. Situation. Post-mortem ecchymoses are seen on that portion of the
body which has been most dependent, generally the posterior aspect,
and they involve principally the superficial layers of the true skin;
ante-mortem ecchymoses may occur anywhere, and generally the deeper
tissues are discolored.

2. In cadaveric lividity there is no elevation of the skin and the
discoloration terminates abruptly.

3. After cutting into the tissues where an ecchymosis has been produced
by violence, the blood without the vessels is free in the tissue; this
is not so in cadaveric ecchymosis.

4. Post-mortem ecchymoses are very extensive, ante-mortem generally
limited in area.

A peculiar appearance of cadaveric lividity is observed in bodies
which have been wrapped in a sheet and allowed to cool or that have
cooled in their clothing. It occurs in the form of bands or stripes
over the whole surface, and often gives an appearance as of a person
flogged. The explanation of this appearance is that the congestion of
the vessels takes place in the interstices of the folds, while the
parts compressed remain whole. The unbroken condition of the cuticle,
together with the other characteristics just mentioned, are sufficient
to distinguish these ecchymoses from those produced by violence. While
cadaveric lividity is seen in all bodies after death, it is especially
pronounced in those persons who have died suddenly in full health or
by violence, as from apoplexy, hanging, drowning, or suffocation. It
is very slight in the bodies of those who have died from hemorrhage or
anæmia.

The time at which cadaveric lividity appears varies greatly. Casper,
who has investigated the subject thoroughly, sets the time at from
twelve to fifteen hours after death.


PUTREFACTION.

At a period varying from a few hours to three days after death, certain
changes are seen in the human body which show that putrefaction has
commenced. A change of color appears first upon the middle of the
abdomen and gradually spreads over the rest of the body; it is first
pale green, which gradually deepens, and finally becomes purplish or
brown. This change in color is due to the action on the hæmoglobin of
the gases developed by decomposition. Similar discoloration makes its
appearance on the chest, between the ribs, on the face, the neck, the
legs, and lastly on the arms, where it is more marked along the large
venous trunks, and has sometimes been mistaken for marks of violence.
The eyeballs become flaccid, and if exposed to the air the conjunctiva
and cornea become dry and brown. Gases are formed, not only in the
hollow organs of the abdomen but also in the skin. Those developed in
the cavities of the head and face force frothy, reddish fluid or mucus
from the mouth and nostrils, and may cause swelling of the features and
protrusion of the eyes and tongue. It must be remembered that the gases
while producing distention of the abdomen may also cause changes in the
position of the blood and slight displacement of the organs; they may
also force undigested food into the mouth and into the larynx, and so
lead to suspicion of death from suffocation.

As putrefaction advances, after a period of five or six days the entire
surface of the body becomes green or brown, the cuticle becomes loose
and easily detached; the tissues flaccid and often bathed in a reddish
serum in such situations as the neck, the groin, and the back part of
the scalp. The thorax and abdomen become enormously distended, the
features distorted and scarcely recognizable, and the hair and nails
loosened. Beyond this, it is impossible to follow the changes leading
to disintegration with any degree of certainty. The changes which I
have just described as produced by putrefaction are the _ordinary_
ones seen in a body exposed to the air at a moderate temperature, but
it must be remembered that the time and rapidity of the development of
these changes may be influenced by a large number of factors, and that
they are of very little importance in estimating the time of death. I
have seen bodies buried two months that have shown fewer of the changes
produced by putrefaction than others dead but a week.

The appearance of a body buried in a coffin will be as follows after a
period varying from a few months to one or two years. The soft tissues
will have become dry and brown and the face and limbs covered with a
soft white fungus. Hard white crystalline deposits of calcium phosphate
will be found on the surface of the soft organs, and when found on
the surface of the stomach care should be taken not to confound them
with the effects of poison. In time the viscera become so mixed
together that it is difficult to distinguish them. For the most part
the changes that take place in a body buried in a coffin are similar,
but much slower, to those that occur if the body is exposed to the air
or buried in soil. Even under apparently identical circumstances the
most varied results have been observed, so it is not possible for a
medical jurist to fix a definite period of death or the time of burial
from the appearance of an exhumed body. For example, Taylor records a
case where after thirty-four years’ interment an entire and perfect
skeleton was discovered, surrounded by traces of shroud and coffin,
while in an adjoining grave all that remained of a body that had been
dead twenty-five years were the long bones and base of the skull, In
one case a body was found well preserved after six years’ burial and in
another after even thirty years’ interment.

This brings us next to a consideration of those factors that favor or
retard decomposition.


CIRCUMSTANCES FAVORING PUTREFACTION.

1. =Temperature.=—Putrefaction advances most rapidly at a temperature
between 70° and 100° F. It may commence at any temperature above 50°
F., but it is wholly arrested at 32° F. So one day’s exposure of a
body in summer may effect greater changes than one week in winter.
After freezing, putrefaction takes place with unusual rapidity upon
the thawing out of the body. A temperature of 212° F. stops all
putrefactive changes.

2. =Moisture.=—Putrefaction takes place only in the presence of
moisture. An excess of moisture, however, seems to retard the process,
possibly by cutting off the excess of air. The viscera according to
the amount of water they contain decompose at different times after
death—for instance, the brain and eye rapidly, the bones and hair
slowly.

3. =Air.=—Exposure to air favors decomposition by carrying to the body
the micro-organisms which bring about putrefaction; absence of air soon
arrests the changes: this is seen in bodies hermetically sealed in
lead coffins, which remain unchanged for a long period of time. Moist
rather than dry air favors putrefaction by lessening evaporation. Air
in motion retards while still air favors the change.

It is to be remembered that a body decomposes more rapidly in air than
in water or after burial. Given similar temperatures, the amount of
putrefaction observed in a body dead one week and exposed to the air
will about correspond to one submerged in water for two weeks or buried
in a deep grave for eight weeks.

4. =Age.=—The bodies of children decompose much more rapidly than
those of adults; fœtuses still more rapidly. Aged bodies decompose
slowly, probably on account of a deficiency of moisture. Fat and flabby
bodies decompose quickly for the same reason.

5. =Cause of Death.=—In cases of sudden death, as from accident or
violence, the body decomposes more rapidly than when death results
from disease. Putrefaction sets in early in death from the infectious
fevers, such as typhus, pyæmia, and typhoid fever, also in death from
suffocation by smoke or coal gas, by strangulation or after narcotic
poisoning. Those parts of a body which are the seat of bruises,
wounds, or fractures, decompose rapidly; this is especially seen in
parts after a surgical operation.

6. =Manner of Burial.=—When a body is buried in low ground in a damp,
swampy, clay soil, decomposition advances rapidly, as also when the
grave is shallow so the body can be exposed to constant variations of
temperature. A porous soil impregnated with animal and vegetable matter
favors putrefaction, as also burying a body without clothes or coffin;
this is especially seen where infants have been thrown into the ground
and loosely covered with earth.


CIRCUMSTANCES RETARDING PUTREFACTION.

1. =The Temperature.=—Below 32° F. and above 212° F. putrefaction is
entirely arrested. The rapidity of the change considerably lessens as
the temperature advances above 100° F. A remarkable instance of the
preservative power of cold is given by Adolph Erman, who states that
the body of Prince Menschikoff, a favorite of Peter the Great, exhumed
after ninety-two years’ burial in frozen soil, had undergone hardly any
change. Buried in hot sand as is seen in the desert, a body putrefies
very slowly and generally becomes mummified.

2. =Moisture.=—Absence of moisture retards decomposition. In the dry
air of the desert bodies have been preserved for a long period of time.

3. =Air.=—If access of air to a body be prevented in any way by its
inclosure in a coffin, by closely fitting clothes, or by complete
immersion in water, putrefaction is retarded.

4. =Age.=—Adults and old people decompose more slowly than children.
Males are said to change less rapidly than females, lean people than
fleshy ones.

5. =Cause of Death.=—Putrefaction is delayed after death from chronic
diseases unless they are associated with dropsy. Poisoning by alcohol,
chloroform, strychnine, and arsenic retard putrefaction. In the latter
case the putrefactive changes seem to stop after they have once
commenced, and often a result very similar to mummification is seen.
Death from the mineral acids, especially sulphuric, appears to delay
putrefaction.

6. =Manner of Burial.=—Putrefaction is retarded by burial a short
time after death; by interment on high ground, in dry, sandy, or
gravelly soil; by having the grave deep, over six feet in depth if
possible by the body being well wrapped and secured in a tight coffin,
a lead one being the best in this respect. Lime or charcoal applied
freely about a body will retard decomposition, as will also injection
of the body through the arteries with such substances as arsenic,
chloride of zinc, or antimony. The ultimate effect of putrefaction
is to reduce all bodies to inorganic compounds, chiefly water,
ammonia, and carbon dioxide. Three conditions are necessary for its
establishment, (1) a given temperature, (2) moisture, (3) free access
of air.

The order in which the various organs and tissues undergo
decomposition, as given by Casper, who has investigated the subject
carefully, is as follows: Trachea and larynx, brain of infants, stomach
and intestines, spleen, omentum and mesentery, liver, brain of adults,
heart and lungs, kidney, bladder and œsophagus, pancreas, large
vessels, and last of all the uterus.

As the result of putrefaction, fluids, generally blood-stained, collect
in the serous cavities of the body, and should not be confounded
with serous effusions occurring during life. So also the softening
of the organs and tissue resulting from decomposition should be
carefully distinguished from those resulting from inflammation. These
cadaveric softenings are most frequently found in the brain, spleen,
and gastro-intestinal mucous membrane. Inflammatory softenings are
differentiated by being rarely general but almost always limited, by
the substance of the inflamed part being infiltrated with serum or
pus and showing traces of vascular injection. In doubtful cases the
pathologist should have recourse to the microscope.

As the result of putrefaction, various changes take place in the mucous
membrane of the stomach and intestines which simulate the effects
of poisons. The color of the stomach varies from red, which becomes
brighter on exposure to the air, to a brown, slate, or livid purple. We
can only presume that these color-changes are the result of irritant
poisons when they are found in non-dependent parts and parts not in
contact with organs engorged with blood, when they are seen soon after
death, and when the membrane is covered with coagulated blood, mucus,
or flakes of membrane.


EFFECTS ON PUTREFACTION OF SUBMERSION IN WATER.

There are certain modifications of the putrefactive changes when bodies
have been submerged in water. In the first place, the changes are much
less rapid; they often do not show themselves until about the twelfth
day, and then as discolorations appearing generally first about the
ears and temples, then on the face, from which they spread to the neck,
shoulders, chest, abdomen, and finally to the legs. This is almost the
inverse order of the putrefactive changes in bodies exposed to the air.
As a result of the formation of gases, the body in a short time becomes
buoyant; after floating on the surface of the water for a time, the
gases escape and the body sinks, rising a second time when fresh gas
has formed.

The rapidity of decomposition in water varies, being most rapid when
the temperature is from 64° to 68° F. Stagnant as well as shallow water
favors putrefaction. If a body becomes coated with mud the change is
delayed. Submersion in a cesspool also retards it, and the conditions
are such as to favor the formation of adipocere.

After a body has been removed from the water an exposure of a very few
hours to the air causes rapid decomposition, so that in twenty-four
hours more marked changes may occur than would have resulted from a
fortnight’s longer submersion. The face soon becomes bloated and black,
so that identification is well-nigh impossible. It is quite important
in medico-legal cases to estimate the time which has elapsed since
death in bodies found submersed in water. The following are the various
changes ordinarily seen at different periods of time, as estimated by
Devergie, who has especially investigated the subject:

=First Four or Five Days.=—Little change: rigor mortis may persist,
particularly if the water is cold.

=Fourth or Fifth Day.=—Skin of the ball of the thumb and little
finger, also the lateral surface of the fingers, begins to whiten. This
whitening gradually extends to the palms of the hands and soles of the
feet. The skin of the face will appear softened and of a more faded
white than the rest of the body.

=Fifteenth Day.=—Face slightly swollen and red; a greenish spot
begins to form on the neck and skin of the mid-sternum. The skin of the
hands and feet is quite white and wrinkled. The subcutaneous cellular
tissue of the thorax is reddish and the upper part of the cortical
substance of the brain of a greenish tint.

=At One Month.=—The face is reddish-brown, the eyelids and lips green
and swollen, and the neck slightly green. A greenish discoloration is
also seen over the upper and middle part of the sternum. The skin is
wrinkled. The hair and nails still remain intact. The scrotum and penis
are distended by gas. The lungs become very emphysematous and overlap
the heart.


SAPONIFICATION.

When the bodies were removed from the Cimetière des Innocents in Paris,
in 1786, Fourcray observed that many of them had been converted into
a substance which he termed ADIPOCERE. He gave it this name because
it resembles both fat (_adeps_) and wax (_cera_). Under certain
circumstances which will be considered later, it is known to be a
late product of the putrefactive processes. Adipocere is a substance
of a cheese-like consistency, yellow or yellowish-brown in color,
and composed chiefly of a mixture of the fatty acids. Chevreul has
shown by analysis that it is a true ammoniacal soap, but that when
formed in water impregnated with lime a calcareous may be substituted
for an ammoniacal base. This may take place either in a body exposed
to river-water or buried in a grave wet by water containing calcium
carbonate or sulphate. Saponification can only take place when animal
fat is in contact with nitrogenous matter. Neither fat nor fibrin when
kept separate will saponify. Skin deprived of all its fat will not be
transformed into adipocere.

Saponification commences in the fat of the female breast, of the cheeks
and other parts of the body where large accumulations of fat are found,
such as around the kidneys and in the omentum. As fat is distributed
extensively throughout the body, nearly all parts may undergo this
transformation. Taylor gives the following conditions as favorable to
the change:

1. Bodies of young persons, because the fat is abundant and chiefly
external.

2. Bodies of corpulent adults.

3. Exposure of bodies to the soil of water-closets.

4. The immersion of bodies in water, the change taking place more
rapidly in running than in stagnant water.

5. Humid soil, especially when bodies are placed in it one upon the
other. In this case the lowest of them is first changed.

When a body has been completely saponified it may remain in this state
for years. In one instance, after seventeen years’ burial many of the
organs could still be recognized.

The time required for saponification to take place is sometimes of
medico-legal importance. Three years are _usually_ necessary for bodies
buried in the earth. The change occurs more rapidly in water. Cases are
recorded where the body of a new-born child was completely saponified
in six weeks, and again, the change had commenced in a body which had
been in the water about four months; but these are unusual cases.


DATA UPON WHICH OPINION AS TO TIME OF DEATH IS FORMED.

The changes which take place in a body before putrefaction sets in may
enable a medical jurist to form an opinion as to the probable time
which has elapsed since death; yet it must be remembered, to pronounce
the time which has elapsed can only be done approximately, for very
many conditions will have to be considered, which will vary in each
individual case. The importance of considering the minutest detail is
well illustrated by the death of Prince de Condé, Duke of Bourbon,
who was found dead in his bedroom in the chateau of St. Cyr. When
discovered at 8 o’clock in the morning, the deceased was found partly
undressed, hanging by his cravat to one of the window shutters. The
body was cold and the lower extremities rigid. As in asphyxia from
hanging the warmth of the body is usually preserved longer than under
common circumstances, viz., from twelve to fifteen hours, before which
period rigidity is seldom complete, the medical examiner inferred that
the deceased must have died very soon after he retired to his bedroom
on the previous night. As this was proven to have been 10 P.M., it
followed that only ten hours had elapsed—a short time for cooling and
rigidity to have taken place. It was thus rendered probable that the
hanging took place soon after deceased reached his bedroom. It was
alleged that the duke had been murdered, and that his body had been
afterward suspended to create a suspicion of suicide. The condition of
the body was, among other things, adverse to this opinion. From 10 to
12 o’clock it was proved there were numerous attendants moving about
near the duke’s apartments. They would have heard any unusual noise the
duke must have made in resisting his assailant. But no noise was heard
in the room at that or any other time, and the presumption of this
being a homicide was thus strongly rebutted.

=Cadaveric rigidity=, while often it will aid to, is not a reliable
guide. When once it is established it may remain two, three, or four
days, according to the season of the year and other circumstances, and
when it exists there is no rule by which it can be determined whether a
body has been in this state three hours or three days.

=Putrefaction=, while appearing on an average, under a mean
temperature, in from three to six days, is yet influenced by many
circumstances. The heat and moisture of the surroundings, the age, sex,
amount of flesh on the body, mode of death, position and coverings of
body, all must be considered.

=The temperature= of the body aids us, yet the retention of warmth by
the abdominal viscera may be met with in a marked degree twenty hours
after death; in one case, personally known to me, the thermometer
registered 76° F. seventeen hours after death.

The temperature of the body, its rigidity, and the evidences of
putrefaction all furnish data from which we can estimate the _probable_
time which has elapsed since death. It must be remembered that no one
of them furnishes any positive proof.

Some medical jurists have attempted to give a more definite character
to these changes in the recently dead body by dividing the interval
between the stopping of the heart’s action and the beginning of
putrefaction into three periods. In the first, the warmth, pliability,
and muscular irritability remain. In the second, these conditions are
lost and the body is cold and rigid. In the third, the body is cold
and pliant, the muscles are relaxed, and the joints are flexible, the
cadaveric rigidity having entirely ceased.

There can be no doubt about the existence of these stages, but when we
come to define the precise time at which one begins and the other ends,
we find it impossible. For example, the first stage embraces a period
which cannot be more closely defined than by stating that the person
may have been dead from a few minutes to twenty hours—a statement too
vague to be upheld by a counsel who defends a prisoner.

The changes which take place in these periods and the average time they
last have been given as follows by Devergie:

FIRST PERIOD, _Few Minutes to Twenty Hours_.—Characterized by warmth
of the body and general or partial relaxation of the voluntary muscles.
To what portion of this period the special case belongs must be
estimated according to the degree of heat in the trunk and extremities
and the degree of rigidity in the muscles, the neck and the jaws
commonly showing this condition first, the legs last. Warmth of the
body rarely remains as long as twenty hours; in general it is sensibly
cold in from ten to twelve hours. During this period the muscles are
susceptible of contraction under the galvanic current, and in the early
stage under the stimulus of blows.

SECOND PERIOD, _Ten Hours to Three Days_.—The body is perfectly cold
throughout and rigidity is well marked. The muscles no longer respond
to stimuli. The duration of this period seems long, yet in one instance
the body will be found cold and rigid nine hours after death. Again,
cooling and rigidity may not come on for three or four days.

THIRD PERIOD, _Three to Eight Days_.—The body is perfectly cold. The
limbs and trunk pliant and free from cadaveric rigidity. The muscles
are not capable of contracting. In summer this period is much shorter;
often it will come on before three days.

Putrefaction commences when a body is kept under the most favorable
conditions, in from six to twelve days, as a slight greenish
discoloration of the abdomen which gradually spreads throughout the
body. The time at which putrefaction shows itself and the rapidity with
which it advances is dependent upon so many factors, many of which
it is impossible often for the medical examiner to ascertain, that
too much reliance must not be placed upon it. Casper estimates the
following to be the _average_ changes generally found in the periods of
time given:

TWENTY-FOUR TO SEVENTY-TWO HOURS after death a slight green color is
visible over the centre of the abdomen. The eyeballs are soft and yield
to external pressure.

THREE TO FIVE DAYS after death the green color of the abdomen becomes
intensified and general, spreading if the body be exposed to the air or
buried in the ground in the following order: genitals, breast, face,
neck, upper and lastly lower extremities.

EIGHT TO TEN DAYS after death the discoloration becomes more
intense, the face and neck presenting a shade of reddish-green. The
ramifications of the superficial veins on the neck, breast, and limbs
become very apparent. Finally the patches congregate. Gases begin to be
developed and distend the abdomen and hollow organs and to form under
the skin in the subcutaneous and intermuscular tissue. The cornea falls
in and becomes concave. The sphincter ani relaxes.

FOURTEEN TO TWENTY-ONE DAYS after death the discoloration over the
whole body becomes intensely green, with brownish-red or brownish-black
patches. The body is bloated and appears greatly increased in size
from the development of gases within the abdomen, thorax, and scrotum,
and also in the cellular tissue of the body generally. The swollen
condition of the eyelids, lips, nose, and cheeks is usually of such
extent as to obliterate the features and to destroy the identity of the
body. The epidermis peels off in patches, while in certain parts, more
particularly the feet, it will be raised in blisters filled with red or
greenish liquid, the cuticle underneath frequently appearing blanched.
The color of the iris is lost. The nails easily separate and the hair
becomes loosened.

FOURTH TO SIXTH MONTH after death the thorax and abdomen burst and the
sutures of the skull give way from the development of gases within the
head. The viscera appear pulpy, or perhaps disappear, leaving the bones
exposed. The bones of the extremities separate at the joints. At an
advanced stage the soft parts gradually disappear.

In giving an opinion as to how long a time has elapsed since death when
a body has undergone marked putrefactive changes, we must consider
carefully not only the conditions of the organs, but the mode of death
and the “surroundings.” By these I mean the quantity of clothing worn,
the depth of the grave in which the body has been interred, the season
of the year, the heat and moisture of the atmosphere. The question
sometimes presents itself to the medical examiner, Of two persons
found dead, which died first? The importance of this point was well
illustrated in the “Lizzie Borden case.” By a careful consideration of
all the conditions presented by each body in the ways I have indicated,
the question will not ordinarily be a difficult one to decide.



THE

MEDICO-LEGAL CONSIDERATION

OF

WOUNDS,

INCLUDING

PUNCTURED AND INCISED WOUNDS, AND WOUNDS MADE BY BLUNT INSTRUMENTS
OTHER THAN GUNSHOT WOUNDS.

BY

GEORGE WOOLSEY, A.B., M.D.,

_Professor of Anatomy and Clinical Surgery in the Medical Department of
the University of the City of New York; Surgeon to Bellevue Hospital;
Member Medical Society of the County of New York, New York Academy of
Medicine, New York Surgical Society, etc., etc._



WOUNDS.


GENERAL CONSIDERATIONS. THE DIFFERENT KINDS OF WOUNDS.

THE surgical and medico-legal ideas of wounds are quite different, the
latter including the former as well as other varieties of injuries.

=Definitions.=—Surgically a _wound_ means a solution of continuity and
refers to every such lesion produced by external violence or developing
spontaneously. The medico-legal acceptation of the term is much broader
and includes any injury or lesion caused by mechanical or chemical
means. Vibert[601] quotes Foderé as defining a wound medico-legally as,
“Every lesion of the human body by a violent cause of which the results
are, singly or combined, concussion, contusion, puncture, incision,
tear, burn, twist, fracture, luxation, etc.; whether the cause is
directed against the body or the body against the cause.” The same
author quotes another definition of a wound as, “Every lesion however
slight, resulting in concerning or affecting the body or health of an
individual.” Taylor[602] defines a wound in a medico-legal sense as “a
breach of continuity in the structures of the body whether external or
internal, suddenly occasioned by mechanical violence.” Thus, the term
wound in its medico-legal acceptation includes not only surgical wounds
but contusions, fractures, burns, concussion, etc. In France at least
the voluntary inoculation of syphilis has been considered as coming
under the category of wounds.[603]

Medico-legally, the severity of a wound is much more important than
the kind of wound. Thus we may consider wounds according to their
comparative gravity, as mortal, severe, or slight.

A _mortal_ wound is one which is directly fatal to life in a
comparatively short time, usually from hemorrhage, shock, or the injury
of a vital part. A wound may result fatally without being a mortal
wound, as when a slight wound causes death on account of some wound
infection.

_Severe wounds_, or “wounds causing grievous bodily harm,” as they have
long been called, do not put life in imminent danger, though they may
be inconvenient or detrimental to health. Pollock, C. B., says that a
wound causing grievous bodily harm is “any wound requiring treatment.”

A medical opinion or certificate may be required as to the danger of a
given wound, and on this opinion may depend the question of bail for
the prisoner. By the danger of a wound in such a case is usually meant
imminent danger, as any wound may be remotely dangerous to life.

_Slight wounds_, as already stated, may result fatally under certain
conditions. Under the French practice a slight wound is one which does
not incapacitate one from work for more than twenty days. Looked at
in another way, slight or severe wounds may be classified according
as they are completely curable, leaving no infirmity or disturbance
of function, or not completely curable. The latter are such as are
necessarily followed by permanent or temporary infirmity.

The question as to the severity of any given wound may sometimes be
left to the jury to decide from the description of the wound, or a
medical opinion may be required.

Although the intent of the assailant is often of equal or greater
importance than the severity or kind of wound, yet this can only
occasionally be inferred from the surgical aspects of the wound.

The classes of wounds to be treated in the following pages are incised
and punctured wounds and wounds with blunt instruments, some of the
characteristics of which we will now consider.

=Incised wounds= are such as are produced by a cutting instrument, and
they are distinguished by the following characteristics: They measure
more in length than in the other dimensions. They are usually straight
in _direction_, though not infrequently curved, and they may even be
zig-zag, especially where the skin lies in folds. The _edges_ of an
incised wound are linear, and show no signs of contusion. They are
either inverted or everted and the edges and sides of the wound are
retracted. The eversion of the skin is due to its elasticity, but in
some regions of the body, _e.g._, in the scrotum, etc., the skin is
inverted owing to the contraction of the muscle fibres immediately
beneath. The gaping of the wound is due to the retraction of the
divided muscles and fibrous structures. It varies according as the
muscles are cut directly across or more lengthwise, and in proportion
to the distance of the wound from the points of attachment of the
muscles.

The fibrous tissues, fasciæ, and aponeuroses retract less, and so give
a somewhat irregular surface to a large wound.

Ogston[604] divides incised wounds into three parts, the commencement,
centre, and end, of which the end often has two or more serrations
differing from the commencement, which has but a single point. There
are often one or more slight, superficial, tentative incisions situated
almost always, though not invariably, near the commencement.[605] The
deepest part of the wound is more often near the commencement. If
there are angular flaps on the edges their free angles point to the
commencement of the wound.

Coagula and clots of blood are to be found in the wound, more or less
filling it up if it has not been interfered with. On examination the
ends of the divided vessels are found plugged with clots which may
protrude somewhat from their openings.

If the wound is seen very shortly after its infliction, hemorrhage is
in progress, and the divided arteries show their position by their
individual, intermittent jets of blood. The severity of incised wounds
depends upon the amount of hemorrhage, which is greater the deeper and
larger the wound, and the more vascular the tissues in which it occurs,
especially if large and important vessels are concerned. In the latter
case an incised wound may be very rapidly fatal.

Incised wounds present the least favorable conditions for the
spontaneous arrest of hemorrhage of any form of wounds. The edges of an
incised wound may be quite rough and even dentated or lacerated if the
edge of the weapon be rough and irregular.

The kind and condition of a weapon which has produced a given incised
wound may often be learned by an examination of the characteristics of
the wound.

Weapons cutting by their weight as well as by the sharpness of their
edges, such as axes, etc., may cause a certain amount of contusion
about a wound; they crush the soft parts to a certain extent, and the
bones may be indented or even fractured.

Wounds caused by fragments of bottles, pieces of china, earthenware,
or glass, though strictly speaking incised wounds, are often curved,
angular, and irregular, and their edges jagged and contused.

Wounds caused by scissors may sometimes be of the nature of incised
wounds. When they present a double wound of triangular shape, with the
apex of the triangle blunt, they are more of the nature of punctured
wounds. In general a “tail” or long angle in the skin at one end of an
incised wound indicates the end of the wound last inflicted, and some
light may thus be thrown upon the inflicter of the wound.

Incised wounds present very favorable conditions for healing by primary
union, but often fail in this and heal by secondary union. When an
incised wound fails to unite by primary union, bleeding continues
for several hours or even as long as a day, the blood being mixed
more or less with a serous discharge. The latter continues until the
third day or so. By the fourth or fifth day the surface has begun to
granulate, and there may be a more or less profuse purulent discharge
from the surface. The granulating surfaces do not necessarily discharge
pus, however. For some days, therefore, after the infliction of an
incised wound, or until the surface is covered with granulations, the
characteristics of the wound permit of a diagnosis as to the nature of
the wound.

The _diagnosis_ of an incised wound is generally without difficulty.
Some wounds by blunt instruments, however, in certain regions of the
body, resemble incised wounds very closely. Such instances are found
where a firm, thin layer of skin and subjacent tissue lies directly
over a bony surface or a sharp ridge of bone. These are seen most often
in the scalp or in wounds of the eyebrow where the sharp supra-orbital
ridge cuts through the skin from beneath. The diagnosis of an incised
wound can often be made with great probability from the cicatrix. This
is especially the case if the wound has healed by primary union and the
cicatrix is linear.

The _prognosis_ in incised wounds is good as to life unless a large
vessel has been divided or unless an important viscus has been
penetrated. The prognosis as to function varies with the position and
extent of the wound, and the circumstance of the healing of the wound.

=Punctured Wounds, Stabs, etc.=—These are characterized by narrowness
as compared to depth, though the depth is not necessarily great.
They are more varied in character than incised wounds owing to the
great variety of form of the weapons by which they may be made. From
the form, etc., of a particular wound we may often infer the variety
of weapon by which it was produced. According to the weapon used,
punctured wounds have been divided into several classes, of which M.
Tourdes distinguishes four: 1st. _Punctured wounds by cylindrical or
conical instruments_ like a needle. If the instrument be very fine like
a fine needle, it penetrates by separating the anatomical elements
of the skin, etc., without leaving a bloody tract. Such wounds are
generally inoffensive, even when penetrating, if the needle is aseptic,
and they are difficult to appreciate. On the cadaver it is almost
impossible to find the tract of such a wound. If the instrument be a
little larger it leaves a bloody tract, but it is difficult to follow
this in soft tissues, more easy in more resistant structures, such as
tendon, aponeurosis, cartilage, or serous membrane.

If the instrument be of any size this variety of punctured wounds
presents a form quite different from that of the weapon. Instead of a
round wound it is generally a longitudinal wound with two very acute
angles and two elongated borders of equal length, showing but little
retraction. This is the shape of the wound even when the instrument
producing it is so large that the resulting wound resembles that made
by a knife (see Fig. 2). The direction of the long axis of these wounds
varies in different parts of the body and is uniform in the same part.
Their shape and direction are explained by the tension of the skin or
still more clearly by the direction of the fibres of the skin, just
as with the same round instrument in a piece of wood a longitudinal
opening or split would be made parallel to the grain (see Fig. 1). In
some regions, as near the vertebræ, the fibres may run in different
directions, and the resulting wound is stellate or triangular in shape
as if a many-sided instrument had caused it. As the direction of the
fibres of the various tissue layers, such as aponeuroses, serous and
mucous membranes, etc., may be different, a deep wound involving
several such layers would have a different direction for each layer. In
illustration of this, examine the figure of a wound through the wall of
the stomach (see Fig. 3).

[Illustration: FIG. 1.—Direction of the Long Axis of Wounds of the
Back caused by Conical Instruments.
(After Langer.)]

The wounds above described when large are smaller than the weapon,
as the splitting of the skin has certain limits and also owing to the
elasticity of the skin, which is put on the stretch by the weapon and
relaxed on its withdrawal. When such wounds are small they are larger
as a rule than the instrument causing them.

[Illustration: FIG. 2.—Slit-like Wound caused by a Pointed Conical
Instrument 2.5 cm. in Diameter. Natural size.]

[Illustration: FIG 3.—Wounds of Stomach Wall by a Conical Instrument,
showing the Different Direction of the Long Axis of the Wounds in
Different Layers.]

[Illustration: FIG. 4.—Stab-Wound of the Skin with a Knife a Few
Minutes before Death.]

2d. _Punctured wounds by instruments both sharp pointed and cutting_,
like a knife or dagger. If these wounds are perpendicular to the
surface, they have more or less the form of the weapon used. The angles
may show whether the knife, etc., had one or two cutting edges, but
even though the back of the knife is broad the wound may resemble
one caused by a double-edged weapon. Thus stab-wounds from a common
pocket-knife show only exceptionally a wedge-shape, but regularly a
slit, the edges of which are slightly curved to one another and end in
two acute angles. The reason of this lies in the fact that the wound is
only caused by the cutting edge of the knife, so that we cannot tell
as a rule which angle was occupied by the back of such a knife (Figs.
4 and 5). The depth of these wounds may equal the length of the weapon
or be almost any degree less, but the depth may even be greater than
the length of the weapon by reason of a depression of the parts at
the time of the blow. The wound is often shorter and broader than the
weapon causing it, though more often it is larger than the weapon from
the obliquity of the wound and the movement of the weapon on being
withdrawn. The wound is smaller than the instrument where the parts are
on the stretch at the time the wound is inflicted.

[Illustration: FIG. 5.—Nine Suicidal Stab-Wounds in the Region of the
Heart made by a Knife used for Cutting Rubber.]

This variety of punctured wounds may resemble the former class in the
direction of its long axis, if the cutting edge of the instrument is
blunt. The regularity and smoothness of the edges distinguish them from
certain contused wounds.

3d. _Wounds made by instruments with ridges or edges_, files, foils,
etc. If the edges are cutting the wound presents more or less the shape
of the weapon (Fig. 6). But this is not always so, probably from the
instrument puncturing obliquely or from the tissues being unequally
stretched (Fig.7). If the edges are not cutting the wound resembles
those of the first class, though the edge often presents little tears,
and the wound may thus be more or less elliptical with two unequal
angles. The wound of entrance and exit may be different.

[Illustration: FIG. 6.—Stab-Wounds caused by a Three-Sided Sharp-Edged
Pointed Instrument.]

4th. _Irregular perforating instruments_, the wounds from which
resemble contused wounds.

=Contusions and Contused Wounds.=—A contusion is a wound of living
tissues by a blow of a hard body, not sharp-edged or pointed, or by a
fall, crushing, or compression, and without solution of continuity of
the skin. A contusion usually involves a moderately large surface in
comparison to the two other classes of wounds. Contusions are of all
degrees of severity. If the blow or injury is slight, there is only
slight redness and swelling of the skin with pain, disappearing in a
few hours, and leaving no traces. If the blow be harder it produces
more or less crushing of the tissues, accompanied by ecchymosis with
or without a wound or excoriations of the skin, etc. The contusion may
have the shape of the contusing body, such as a whip, the fingers, etc.

[Illustration: FIG. 7.—Stab-Wounds caused by an Eight-Sided
Sharp-Edged Instrument. Some show a transition stage to wounds made by
a conical instrument.]

=Ecchymosis.=—This is characteristic, as a rule, of contused wounds.
It consists in the infiltration of blood into the tissues, especially
the cellular tissues. The source of the blood is from the rupture
of blood-vessels, and the size of the ecchymosis varies partly with
the number and size of the blood-vessels, or with the vascularity of
the part. The size of the ecchymosis also varies with the looseness
of the tissues into which it is infiltrated. This looseness of the
tissues may be natural as in the scrotum and eyelids, or it may be due
to the attrition of the tissues caused by the blow. An ecchymosis is
larger when the contused parts cover a bony or resisting surface, and
there may be no ecchymosis whatever, even from a severe blow, where
the underlying parts are soft and yielding, as is the case with the
abdominal parietes. Here we may have rupture of the viscera without any
signs of ecchymosis superficially. An ecchymosis may be infiltrative
or it may mostly occupy a cavity usually formed by a traumatic
separation of the tissues; this is especially the case in the scalp
and extremities when the injury is severe. These tumors, which are
called _hematomata_, may be rapidly absorbed or they may remain a long
time and occasionally suppurate. Sometimes the anatomical conditions,
especially of the connective-tissue spaces, allow the extension or
migration of the ecchymosis under the action of gravity, even to a
considerable distance. When it meets an obstacle it accumulates above
it, as in the inguinal region for abdominal ecchymosis and at the knee
for those of the thigh. The course along which the ecchymosis travels
is indicated externally by a yellowish stain, soon disappearing, so
that soon no sign persists at the site of injury, but only below where
the blood is arrested.

An ecchymosis becomes visible at varying times after the injury
according to the depth of the ecchymosis and the thinness of the
skin, for the ecchymosis is mostly beneath, not in the skin. If the
ecchymosis is superficial it shows in one or two hours or even in less
time where the skin is very thin, as in the eyelids and scrotum. In
such cases it increases for thirty or forty hours and disappears in a
week, but may last longer, _i.e._, as long as fifteen to twenty-five
days.

An ecchymosis may not show at the point struck, at least not until
several days have elapsed, or it may only show on the under surface
of the subcutaneous fat until it has imbibed its way, as it were, to
the surface. This may explain the discrepancy in the description of an
injury examined by two medical experts at different times.

If an ecchymosis is extensive and deep, especially if it occupies a
cavity, there may be nothing to see in the skin for four or five days,
and then often only a yellowish discoloration instead of a dark blue
color. In such cases, too, the appearance in the skin may be more or
less remote from the injury, having followed the course of the least
anatomical resistance. Between these two extremes, an ecchymosis may
become visible at almost any time. Rarely an ecchymosis occurs only
deeply between muscles (pectorals, etc.) and not superficially at all.

The extravasation of blood which forms an ecchymosis has sometimes
been given different names, according to its extent or position, for
instance, parenchymatous or interstitial hemorrhages or apoplexies,
suffusions, ecchymoses, petechiæ or vibices. All such may, however, be
called ecchymoses or hematomata. When blood is effused into the serous
cavities of the body, special names are sometimes applied according to
the position, such as hemothorax, hematocele, etc.

The color of an ecchymosis is at first a blue-black, brown, or livid
red. This color changes first on the edges, later in the darker centre,
and becomes in time violet, greenish, yellow, and then fades entirely.
This change in color is owing to a gradual decomposition of the
hæmoglobin of the blood. We can tell the age of an ecchymosis from its
coloration only within rather wide limits, for the rapidity of change
of color varies widely according to a large number of circumstances,
especially according to whether the ecchymosis is superficial or deep.
We can only say that the first change, _i.e._, that to violet, in a
superficial ecchymosis, occurs in two or three days.

As an exception to the above color change, we may mention
subconjunctival ecchymosis, which always remains a bright red, as the
conjunctiva is so thin and superficial that the coloring matter of the
blood is constantly oxidized.

The form of an ecchymosis often reproduces well enough that of the
instrument, except if the latter be large it cannot all be equally
applied to the surface, and its form is not distinctly shown by that
of the ecchymosis. After its first appearance an ecchymosis spreads
radially, the edges becoming less clear. This change occurs more
rapidly the looser the surrounding tissues, and at the end of a few
days the first form of an ecchymosis may be changed, so that an
examination to determine the nature of the weapon should be made as
early as possible.

Ecchymoses are more easily produced in the young, the aged, and
in females, also in the case of such general diseases as scurvy,
purpura, hemophilia, etc. In fact, in the last three classes they may
occur spontaneously. This fact should never be lost sight of, as the
attempt may be made to explain a traumatic ecchymosis in this way. The
diagnosis between the traumatic variety and such cases of spontaneous
ecchymoses is, in general, easy, for in the latter case their number,
form, size, and occurrence on parts little exposed to injury and on the
mucous membranes, as well as the general symptoms of the disease, leave
little or no room for doubt.

From an oblique or glancing blow a considerable area of skin may be
stripped up from its deep attachments forming a cavity which may be
filled by a clear serous fluid alone, or with some admixture of blood.
These cases have been studied especially by Morel Lavallée and Leser,
and the fluid has been thought to be lymphatic in origin, hence the
name “_lymphorrhagia_.” Carriage accidents, especially where the wheels
do not pass directly but obliquely across or merely graze the body, are
especially liable to show this form of extravasation, which is thought
to be more common than is generally supposed, being often obscured by a
small quantity of blood.

[Illustration: FIG. 8.—Linear Wound with Nearly Clean-Cut Edges, with
Strands of Tissue bridging across at the Bottom and caused by a Fall on
the Head on a Smooth Surface.]

=Contused Wounds.=—If with the contusion we have a solution of
continuity of the skin, then we have a contused wound. This may
sometimes resemble an incised wound if the weapon has marked angles or
edges, as a hammer, or, as we have already seen, in wounds of the scalp
or eyebrow (Fig. 8). Careful examination, however, by a small lens if
necessary, is sufficient to distinguish them if they are fresh. If
they are four or five days old and have begun to granulate, it may be
impossible to distinguish them. Contused wounds present on examination
small tears on the edges which are widely separated and more or less
extensively ecchymosed. Contused wounds are often irregular, and
have thickened or swollen and ragged borders. They may, like simple
contusions, show by their shape the form of the instrument which caused
them. In contused wounds, unless they be perfectly aseptic, we usually
find sloughing of the contused, necrotic tissues. This leaves a cavity
to be filled up by granulation like wounds with loss of substance.
They therefore often present large cicatrices which may be mistaken for
those of ulcers. In contused wounds the bone may sometimes show the
impression of the instrument causing the wound.

A variety of contused wounds is that where the wound of the skin
consists merely of an _erosion_ or _excoriation_ with an ecchymosis
beneath. The wound may reproduce the shape of the weapon, _i.e._,
finger-nails, etc. After death the skin becomes brownish-yellow,
hard, and dry, and then they are called by the French “_plaques
parcheminées_.” They are distinguished, as a rule, from those produced
after death, by the ecchymosis beneath.

=Lacerated wounds= resemble contused wounds very closely, but are not
ecchymosed to any considerable extent. The solution of continuity is
sometimes very extensive and irregular, and may present several flaps.
The bone or bones are often fractured at the same time. They seldom
bleed much. The course of repair resembles that of contused wounds as
a rule. The prognosis is variable, for there may be slow and extensive
cicatrization and impairment of function, etc. These wounds usually
result from machinery accidents and accidental tears, etc. They are
therefore seldom the occasion of criminal proceedings but more often of
a civil suit, and thus require medical examination.

The injury which causes a contusion or contused wound may not
infrequently produce effects far more serious and more or less
remote from the contusion. Some of these effects it may be well to
particularize. Blows on the abdomen are sometimes quickly followed by
death without visible lesion to account for it. That authentic examples
of this exist has been denied by Lutaud, except for cases of rapid
death following contusions of the abdomen which had caused extensive
rupture of the viscera and abundant hemorrhage. But Vibert gives two
cases from his own experience, which are as follows:

A young man, twenty years old, received a kick in the stomach at a
public ball. Numerous witnesses of the scene testified that he only
received this one blow. The man collapsed immediately and died in a few
minutes. On autopsy nothing was found but two small ecchymotic spots in
the peritoneum covering the intestine, the largest not the size of a
bean.

In the second case, the injury was also a kick in the stomach and the
man died almost immediately. Absolutely no lesion was found on autopsy.
Both were in full digestion.

König[606] says: “A number of severe contusions of the belly run
a rapidly fatal course without the autopsy showing any definite
anatomical lesion of the viscera.” He also adds that the less severe
cases at first often show very profound shock, which is out of
proportion to the force of the injury. The cause of death has been
explained, like that of sudden death from a blow on the larynx, by the
theory of inhibition. These cases are often illustrated experimentally
on frogs, where the same result is obtained under similar conditions.
Such cases are the more remarkable from the fact that the fatal blow
may cause no ecchymosis or other mark of injury to appear on the
abdominal walls.

Blows on the head may produce a variety of results besides that of
the contusion itself. In fact, death itself may result though the
marks of contusion are very slight or even imperceptible. Intracranial
hemorrhage, laceration with ecchymosis of the brain, on the same or
opposite side to the injury, and concussion of the brain may result. Of
these only concussion will be considered now.

=Concussion= has been defined as a shock communicated to an organ
by a blow or fall on another part of the body, which may or may not
be remote, and without producing a material or appreciable lesion.
According to Lutaud,[607] English pathologists understand by it a
temporary or permanent nervous exhaustion resulting from a sudden or
excessive expense of nervous energy. Its effect is observed in the
function of an organ and especially in the brain. Concussion of the
brain causes stupidity, loss of consciousness, amnesia, coma. The
intracranial lesion most often associated with concussion is ecchymosis
and laceration on the surface of the brain, but there may be no lesion
visible even if the case is a fatal one. Fatal concussion has been
observed where the marks of external violence were very slight or even
failed entirely, as illustrated by the two following cases cited by
Vibert:[608]

Vibert made an autopsy on a man who had been struck by a pitchfork,
one of the teeth of which struck behind the ear, the other two in the
face, only producing slight skin wounds. The man immediately lost
consciousness and died in two days in coma. No lesion whatever was
found within the skull, and only three slight ones externally.

He observed another case where the man fell three or four metres
into an excavation, landing on his feet, and died in a short time.
On autopsy only slight erosions and no intracranial or extracranial
lesions were found.

This case belongs to a rare class where the blow is transmitted through
the spinal column without sign of injury externally or internally to
the head.

The following case cited by Vibert is even more remarkable in the
production of the severe though not fatal concussion: An officer
was riding at full speed on horseback, when his horse suddenly
stopped short. By great exertion the officer clung to the horse, but
immediately lost consciousness. His fall from the horse was broken by
those about him, and the concussion he received was not due to the
fall, but to the shock of stopping suddenly when his momentum was great.

As a rule, however, the diagnosis of concussion, especially if it is
severe enough to be fatal, is easily made by the marks of external
violence with or without intracranial lesions. The effects of
concussion may be transient and leave no trace, but, on the other
hand, they may be prolonged and severe, _i.e._, paralysis, aphasia,
loss of memory, imbecility, etc. The medical examiner should be on
his guard against simulation in respect to these prolonged effects of
concussions. One of the most frequent consequences of concussion is
temporary amnesia, which ordinarily succeeds immediately after the
injury, but sometimes develops more slowly. The following curious case
is quoted from Lutaud as cited by Brouardel:

A woman in getting out of a train at Versailles, where she had gone
to attend the funeral of a relative, was struck by the door of the
compartment. She fell, but did not lose consciousness, and picked
herself up, but forgot what she had come for.

Another result of an injury which has caused a contusion or contused
wound may be a fracture or dislocation. Fractures and dislocations of
special parts will be referred to later, in considering injuries of the
several regions of the body, but it seems appropriate here to refer to
some of those general considerations relating to these injuries which
may especially demand the attention of the medical expert.

=Fractures= may be produced by blows or falls, or from muscular action.
The medical witness may be questioned as to the cause of the fracture
or, if it was produced by a blow, whether a weapon was used or not, as
the defence is likely to assert that it was caused by an accidental
fall. The nature of the associated wounds and contusions, if any exist,
may, as we have seen, indicate the weapon used. If anything exists to
indicate that a fall which caused the fracture was not accidental, this
should be noted, as the assailant is responsible for the effects of the
fall.

A number of conditions influence the ease with which a fracture is
produced and account for a fracture being due to a slight injury, and
so are mitigatory circumstances in the case.

Fractures are more easily produced in the old and young, especially
the former, than in the adult from the same force. This is due to
brittleness of the bones in the old and their small size in the
young. Certain diseases like syphilis, arthritis, scurvy, carcinoma,
and rickets make the bones more frangible, and there is a peculiar
brittle condition of the bones known as _fragilitas ossium_, more or
less hereditary, in which the bones become fractured from very slight
violence. Mercer is quoted by Taylor as stating, but on how good
authority it does not appear, that in general paralysis of the insane
the bones are particularly liable to fracture. Certain it is that not
uncommonly insane patients are found dead with single or multiple
fractures, but the attendants are generally convicted.

In some parts, like the orbital plate of the frontal bone, the bone is
very thin and brittle, but brittleness from any cause only mitigates,
it does not excuse.

Taylor[609] reports a case in point where it was proved that the bones
of the skull were thin and brittle, and the fractured skull proved
fatal from inflammation of the brain. The punishment was mitigated
owing to the circumstance of the brittleness of the bones.

SPONTANEOUS FRACTURES may occur from only a moderate degree of muscular
action, and even where there is no disease of the bones, but the
above-mentioned condition of fragilitas ossium, rendering the bones
more brittle, aids in the production of such fractures. The olecranon,
patella, and os calcis are particularly liable to such fractures, but
the long bones of the ribs and extremities are sometimes so fractured,
as instanced in the following cases cited by Taylor:[610]

The humerus of a healthy man has been broken by muscular exertion
simply by throwing a cricket ball.[611] In 1858 a gentleman forty years
old, during the act of bowling at cricket, heard a distinct crack like
the breaking of a piece of wood. He fell immediately to the ground, and
it was found that his femur was fractured.

Again, in 1846, a healthy man, æt. 33, was brought to Gray’s Hospital
with the following history: He was in the act of crossing one leg over
the other to look at the sole of his foot, when something was heard to
give way; his right leg hung down and he was found to have received
a transverse fracture of the femur at the junction of the middle and
lower thirds.

The writer had a case in Bellevue Hospital during the past winter
(1892-93) of a man who stated that he had been well and active until
some weeks previously, when, from muscular force alone, he sustained a
fracture of the neck of the femur. Something abnormal in the bone may
be present in such cases.

In cases of spontaneous fractures there are no marks of external
violence which, if present, would remove the idea of spontaneity.

Fractures of the extremities are not dangerous _per se_, unless they
are compound or occur in old, debilitated, or diseased persons, and
they are more severe the nearer they are to a joint. The healing of
fractures is more rapid in the young than in the old and in the upper
than in the lower extremity. It is not proven that adiposity of itself
impedes union.

The question may be asked, how long before examination a given bone was
fractured. As a rule, we can only say as to whether the injured person
has lived a long or short period since the injury, as the process of
repair varies according to age and constitution. No changes occur until
eighteen to twenty-four hours, when lymph is exuded. According to
Villermé the callus is cartilaginous anywhere between the sixteenth
and twenty-fifth days, it becomes ossified between three weeks and
three months, and it takes six to eight months to become like normal
bone.

The question may also be asked: Has a bone ever been fractured?
The existence and situation of a fracture can often be recognized
long after the accident, by the callus or slight unevenness due to
projection of the edges or ends of the fragments. Where the bone lies
deeply covered by soft parts, it is difficult and often impossible to
tell, long after union has taken place, whether or where a fracture has
occurred.

The answering of this question may sometimes be of importance in
identifying the dead, especially in the case of skeletons. In the
latter instance by sawing the bone longitudinally we can tell by the
thickness, irregularity, or structure of the bone tissue whether a
fracture existed, and if it were recent or old at the time of death.

=Dislocations= call for a medico-legal investigation less often than
fractures. They are less common in the old and where the bones are
brittle, when fracture occurs more readily. They are seldom fatal _per
se_, unless between the vertebræ or when compound. They may occur from
disease in the affected joint or even spontaneously. The diagnosis of
a dislocation is easy until it has been reduced, and then it may leave
no trace except pain in and limitation of the motion of a joint besides
swelling and ecchymosis. These effects are transient, and after they
have disappeared it may be impossible to say whether a dislocation has
existed on a living body, unless, as sometimes occurs, especially in
the shoulder joint, there may be a temporary or permanent paralysis
of a nerve and muscular atrophy. After death, the existence of an old
dislocation may often be recognized on dissection by scar tissue in and
about the capsule.


EXAMINATION AND DESCRIPTION.

The examination of wounds or injuries in a case which is or may become
the subject of a medico-legal investigation should be made with
particular care and exactness.

As the examination of the wounded person is to give most, and in some
cases all, the information to the medical expert on which he is
to base his testimony, it should be made with reference to all the
possibilities of the case.

The particular variety of wound as described in the foregoing section
should be noted, and any peculiarities as to its situation, shape,
extent, length, breadth, depth, direction, and the parts involved.
Besides these points, the condition of the edges of the wound, whether
swollen and ecchymotic, smooth and straight or dentated and irregular,
and whether inverted or everted and gaping, are matters of importance.
The presence or absence of coagula and clots, the staining of the
tissues with blood, the presence of ecchymosis and its comparative age,
as shown by its color, should also be noted.

Many of the above points help us in solving another problem, namely,
the form of the instrument used. This question will be discussed
in a subsequent section, but the basis for our opinion is founded,
of course, on an examination of the particulars of the wound. The
solution of still another question which often arises and which will
be discussed in the next section, namely, whether a wound was produced
before or after death, is based upon particular features of the wound
such as the fluid or clotted condition of the blood on the surface,
or ecchymosed in the tissues, also the amount of the hemorrhage as
compared to the vascularity of the part as well as the greater or less
staining of the tissues with blood, and the conditions of the edges,
whether inverted or everted and whether or not retracted. The question
as to whether a wound was directly, secondary or necessarily the cause
of death, is determined, in part at least, by examination of the wound.
In this connection we take note as to whether a wound has opened or
divided a large vein or artery or is situated in such a vascular part
as to be fatal from hemorrhage. We also note whether death could have
been due to shock from the situation of the wound, or whether an
inflammation which was directly responsible for death was necessarily
due to the wound, as in case of a penetrating wound of the viscera,
etc. Further, we note whether one of the many forms of wound diseases
from infection of the wound has complicated the case and caused death
in the case of a wound not otherwise necessarily fatal. It may be added
that often the necropsy aids us in the solution of the question as to
whether the wound was the necessary and direct cause of death, by
showing a healthy or diseased condition of the viscera.

The question as to which of a number of injuries was first inflicted,
also as to the relative position of the victim and assailant, can be
answered, if at all, only by an accurate and close examination of the
wounds.

Finally, the most important question of all, from a medico-legal
standpoint, namely, the distinction between homicidal, suicidal, and
accidental wounds, is decided or inferred from the characteristics of
the wound after careful examination.

All the foregoing questions contribute to the solution of this the
most important one. The various questions referred to above will be
considered at greater length in the subsequent sections. They have been
merely referred to in brief above, to show the various lines of thought
a medical examiner must have in mind in making an examination.

As to the act of examination itself, the physician should conduct
it in such a way as not to harm the wounded person. Often simple
inspection is the most that can be done, or the examination may have
to be deferred altogether until the physician in charge informs the
court that an examination may be safely made. It is often necessary
for the expert to get information as to the original lesion from the
physician in charge. If the wound has been a fatal one and if we are
called in after death, we may examine the wound on the dead body with
much more freedom. Here we may examine the depth, direction, etc., of a
punctured wound by cutting down on a probe or director. After careful
inspection of the wound we may examine it by palpation, and go on to
the dissection of the wound and the surrounding parts, tracing and
noting the various vessels, muscles, etc., involved in the wound, and
looking for the presence of any foreign body in the wound.

Furthermore, if the cause of death be at all obscure, we should examine
not only the wound itself and the parts about the wound, but also, by
an autopsy, all the cavities and organs of the body. For death may have
been due to natural causes in an organ not examined, if the examination
has not included all, and the physician has to disprove it.

In examining at an autopsy the depth of a wound in reference to the
instrument which caused it, it should be borne in mind that the wound
may be deeper than the weapon owing to a depression of the surface by
the handle of the weapon. This may appear especially marked in the case
of the movable viscera, as at the time of the accident the viscus may
have been as near as possible to the surface, and at the examination as
far as possible from the surface, as in the case of a given coil of the
intestines. Also the thorax when opened at autopsy enlarges or expands
a little, so that the measured depth of a wound may be greater than the
weapon which caused it. Vibert[612] mentions a case of a penetrating
wound of the thorax involving the heart, where the measured depth of
the wound was 0ᵐ.035 greater than the length of the instrument. This
may also be accounted for by a depression or flattening of the thorax
by the blow, as in the case of soft parts. It is often difficult in an
examination to measure accurately the depth of a wound, for one may
find it hard to determine the precise end of a wound. Also, for exact
measurement it is necessary to have the parts in the same position as
at the time of the accident, and these parts are more or less displaced
by the necessary dissection.

Besides the examination of the wound there are other points the
examination of which may aid us in solving the problems presented by a
case. Among these, the examination of the clothing or dress is perhaps
the most important. This may indicate the weapon used in an incised or
punctured wound. Contused and lacerated wounds or fractures, etc., may
be produced without injuring the clothing. Blood, dirt, or grease on
the clothing may throw light on the case. In self-inflicted wounds the
wound in the clothing and that on the body may not and often do not
correspond, as an intending suicide often (a murderer rarely) opens
the clothing to select the spot for the wound. The wound in the dress
is then added by a second blow not corresponding to the first. In this
way we may sometimes distinguish between a homicidal and suicidal
wound, and thus remove a false suspicion of murder or show that a wound
was self-inflicted to conceal other crimes or to falsely impute it to
another. The suspicion of homicide in accidental wounds may be cleared
up by an examination of the dress, as in the following instance related
by Taylor:[613]

A woman was found dead in bed with two indentations about the middle
of the right parietal bone, a large superficial clot here and three
ounces of clotted blood between the dura mater and skull, which latter
was fractured over an area of four inches. No other cause of death was
found. The evidence brought out the facts that she had been knocked
down the evening before, about 7:30 o’clock, by a man accidentally
running into her. She fell on the back of the head, was stunned, raised
up, and stimulated; she then walked home, ate her supper, and was
last seen at 9 o’clock by a fellow-lodger who let her in and noticed
nothing unusual. The next morning she had evidently been dead some
time. Suspicion fell upon the lodger, who had often quarrelled with
her, and the two claws of a hammer found in his room corresponded more
or less closely with the two indentations found in the skull. At the
adjourned inquest, however, the _bonnet_ worn by the deceased at the
time of the accident was found to have two indentations on the back of
it corresponding to those on the woman’s skull and containing dust and
dirt, and rendering probable what from the history seemed unlikely,
that the fall in the road caused the fatal injury. The examination of
the dress thus avoided an unjust accusation of murder.

Contused and lacerated wounds and fractures or dislocations may be
produced without injury to the dress, especially if the latter be
elastic or yielding. The comparison of the wound in the clothes with
that on the body may indicate the position of the body at the time of
the blow. The examination of the clothes of the injured person may
indicate a struggle which would support the idea of homicide. A blunt
instrument may indirectly cause an injury by striking something in or
on a person’s clothes. Instances have been reported where a wound has
been caused by an article in the pocket, or worn outside the clothing,
without any trace of an injury to the clothes or pocket lining.[614]

The examination of the dress may further show which of several cuts or
stabs was first inflicted. This is shown by the staining of the edges
of the cuts in the clothing, the edges of the first cut or stab showing
no blood-stain or only on the inner surface, as the knife is clean
of blood on entering and all that is removed by the clothing on its
withdrawal is found on the inner edges. If the edges of the cuts in the
outer layers of clothing are bloody, it is evident that the knife was
already bloody when used, and the corresponding wound was not the first
inflicted.

The imprint of the bloody hand of the assailant may sometimes be found
on the clothing of the one injured, and is especially important as
evidence, when the hands of the assaulted are not bloody. In the case
of a severe wound, especially if it is likely to become the object of a
criminal investigation, the physician should always require to see the
dress of the wounded. The examination of the clothing which the accused
wore at the time the assault took place may give important evidence by
showing evidences of a struggle or blood-stains. Absence of the latter
would not prove the innocence of the accused, as the clothes actually
worn may be destroyed and others substituted, or the marks and stains
may be removed. In the latter case, the eye of a medical man may detect
traces of blood which otherwise would go unnoticed, and a microscopical
and chemical examination would reveal the real character of the stain.

Besides the examination of the clothing of the accused, the examination
of his person may furnish evidence of his being engaged in a more or
less desperate struggle by the scratches, marks of nails, contusions,
bites, etc., on the face, neck, front of chest, forearms, and hands.
If the accused should attempt to explain these wounds and spots, the
latter may or may not verify the explanation, and thus additional
evidence may be obtained as to the guilt or innocence of the accused.

It is well for the medical expert, as well as for others, to collect
the statements of the wounded person relative to the circumstances of
the injury. Also, if the accused will vouchsafe any such statements we
may compare these with one another and with the facts indicated by the
wound, etc.

Other points to examine, especially in cases of suspected suicide,
may be briefly mentioned. The presence of the weapon in the hand of
the victim and firmly grasped in general indicates suicide, if it
corresponds to the weapon causing the wounds, for otherwise it may
have been used for defence. If not in the hand, note the spot where
the weapon was found. In the case of a suicide, the hand as well as
the weapon held by it is likely to be bloody, also in case of murder
the generally empty hand is apt to be bloody, as the hand is naturally
carried to the wound.

We cannot further describe the many points which the medical examiner
should bear in mind in making an examination in a medico-legal case,
without repeating too fully what will be given at greater length in
subsequent sections, reference to which should be made for further
particulars. Tardieu proposed as a basis for examining and studying
wounds, (1) to visit the wounded person and see what state he is in,
and to determine (2) the nature, (3) the cause, (4) the consequences
of the wound. Also if the wounded person is dead (5) to examine the
body for the cause of death in order to see if the latter is due to the
wound. Also (6) to determine the circumstances of the affray.

=The description= of a wound should be given in plain language,
avoiding the use of scientific terms or expressions, so as to be
readily understood by judge and jurors. Otherwise the usefulness of the
medical expert is very much decreased. The description should also be
precise and sufficient to justify the conclusions arrived at as to the
cause of a wound, its gravity and results, and the weapon used. With
a view to exact statement in description, it is well to take notes as
to the result of the examination and not depend merely on memory. The
object of the witness should be to be understood and not to be thought
thoroughly scientific.


WAS THE INJURY INFLICTED BEFORE OR AFTER DEATH?

This is a question which may often be asked in cases of fatal injuries,
and it is one which must be answered as definitely as we are able, for
the defence may rest on the assertion that the wound or injury was post
mortem and not ante mortem. What are the means we have to enable us to
answer the above question? The most important factor is the condition
of the blood and the changes that it undergoes after death. For some
hours after death the body retains its animal heat. As long as this is
retained rigor mortis does not set in and the blood is more or less
fluid. This period varies, but on the average it does not last longer
than eight or ten hours. Before this time, however, the blood has begun
to undergo certain changes. These changes result in the inability of
the blood from a post-mortem wound to coagulate completely. At first
the greater part may coagulate, but after a time coagulation is less
and less complete, and the coagula are not as firm as those from the
blood of a living person. The period at which these changes occur also
varies, but they may generally be clearly noticed in from three to four
hours after death, or even sooner. In the first two to four hours after
death, therefore, as far as the condition of the blood is concerned, it
may be difficult or impossible to say whether a wound was made before
or soon after death. In other words, this difficulty exists as long as
the tissues of the body live after the body as a whole is dead.

There are certain general pathological or occasional conditions of the
body in which the blood during life does not coagulate at all or only
imperfectly, as in scurvy and in the case of the menstrual blood. Also
blood in a serous cavity, especially if it be abundant or there exists
inflammation, is found not to coagulate or only imperfectly. Post
mortem the blood remains liquid long after death in cases of death by
drowning, asphyxia, etc., and in such cases hemorrhage may be free in a
wound made some time after death. Furthermore, after putrefaction has
set in the blood again becomes more or less liquid, and may flow away
from a wound like a hemorrhage, but it no longer coagulates.

The principal signs of a wound inflicted during life are (1)
hemorrhage, (2) coagulation of the blood, (3) eversion of the lips of
the wound, and (4) retraction of its sides.

1. HEMORRHAGE varies in amount with the size of the wound, the
vascularity of the part, and the number and size of the large vessels
involved. In incised or punctured wounds the amount, as a rule, is
quite considerable. If there is a free exit most of the blood runs
off; the rest stays in the wound, where it soon coagulates with the
exceptions mentioned above. But besides partly filling the wound in
the form of a clot, the edges of the wound are deeply stained with
the coloring matter of the blood, and this stain cannot be removed by
washing. This staining involves especially the muscular and cellular
tissues.

Further, a hemorrhage during life is an active and not a passive one;
the blood is forced into the interspaces of the tissues in the vicinity
of the wound, and is found infiltrated in the cellular tissue, the
muscles, the sheaths of the vessels, etc. It is here incorporated,
as it were, with the tissues so that it cannot be washed away. In an
ante-mortem wound the arterial nature of the hemorrhage may show by
the marks of the jets of blood about the wound or on the clothes or
surrounding objects. When a large vessel has been divided and the
exit for the blood is free, this may run off without infiltrating the
tissues or even staining the edges to any considerable extent, and
there may remain but little in the wound. In the case of lacerated and
contused wounds the amount of hemorrhage is less, but rarely fails
entirely, and if the wound is in a vascular part it is liable to cause
death from hemorrhage, though a whole limb may possibly be torn off
without much hemorrhage. In the latter case, however, there are usually
found clots of blood adhering to the edges of the lacerated wound
and the ends of the vessels. In contusions where there is no wound
of the skin the blood is prevented from flowing externally, and its
accumulation and distribution form an ecchymosis. Here again we see the
active power of the hemorrhage which infiltrates between the tissues,
stains them deeply, and appears either as a mere stain or in fine
clots incorporated, as it were, with the tissues or partly occupying a
cavity formed by an extensive displacement of the surrounding parts.
The amount of blood varies under the same conditions as in incised
wounds, and also according to the greater or less disintegration of
the tissues by the blow, allowing a larger or smaller central cavity
to be formed. In “bleeders” the amount of the hemorrhage does not
vary under the normal conditions, but a fatal hemorrhage may occur
from a very insignificant wound. After hemorrhage from a wound made
during life the veins are empty about the wound, especially those
situated centripetally, while normally after death the blood is mostly
aggregated in the veins. They are the source of post-mortem hemorrhage,
but do not empty themselves to any great extent.

The _hemorrhage from a wound made after death_ may be extensive if
the blood remains fluid as in the cases mentioned above, _i.e._,
after death from drowning or asphyxia or after the commencement of
putrefaction. Otherwise the amount of hemorrhage decreases with the
length of time after death, until the blood loses its fluidity and
hemorrhage no longer occurs. In general, it is slight unless a large
vein is opened, for the veins are the source of the hemorrhage. There
is usually scarcely any hemorrhage after the first two to four hours.
This applies also to subcutaneous hemorrhages or ecchymoses. These
post-mortem hemorrhages are passive and not active, consequently there
is less infiltration of blood into the surrounding tissues, which
merely imbibe it, and the stain is less deep and may be washed off the
edges of the wound, in contrast to the stain of ante-mortem wounds.
After putrefaction has set in the hemorrhage may be more abundant,
as the blood is driven to the surface by the formation of gas in the
abdomen and thorax. At the same time, the coloring matter of the blood
transudes through the walls of the veins and is imbibed by and stains
the tissues, so that it may be impossible to distinguish it from a true
ecchymosis. Fortunately these conditions are of small moment, as an
examination is seldom deferred so long.

CADAVERIC ECCHYMOSES show almost invariably while the body is still
warm and the blood more or less liquid, _i.e._, during the first eight
or ten hours after death. They are not due to injury or violence before
or after death, but they may closely resemble ecchymoses produced on
the living body and be mistaken for them. This is the more important as
they are quite constant on the cadaver.

In this connection, it may be said that an ecchymosis due to a blow
before death may not show till after death, as it requires some time
for a deep ecchymosis or even an ecchymosis covered by a thick layer
of skin to show superficially. Thus a man kicked in the abdomen died
thirty-five hours after the injury from peritonitis, due to a rupture
of the bladder. No ecchymosis appeared at the site of the injuries
until after death. It is not uncommon in cases of hanging to observe
an ecchymosis along the course of the cord appearing only after death.
Huize met with a case of this description. Devergie remarked that on
the bodies of those drowned ecchymoses are often hidden for a time on
account of the sodden state of the skin, and they appear only after
the water has evaporated, which may require some days. Furthermore,
it is not necessary to survive long after an injury in order that an
ecchymosis may show post mortem. If the blood is fluid at the time of
the blow and any capillaries or larger blood-vessels are torn, then we
may have an ecchymosis though death be almost instant. Casper thought
that it required some time before death for an ecchymosis to develop,
and that if the person injured by a contusion died soon after the
injury, an ecchymosis would not appear after death. There are many
well-authenticated cases to prove that Casper’s opinion is wrong. Among
the most famous of these is that of the Duchesse de Praslin.[615] She
was attacked and killed by her husband while she was asleep in bed.
The thirty or so wounds showed a mortal conflict, and she could not
have survived more than one-half hour, and yet after death there were
numerous ecchymoses from the contusions.

Another case is also mentioned by Taylor.[616] A young man died
suddenly after a blow from a companion, having been struck in the side
a fortnight before by a heavy box, which knocked him senseless and
nearly killed him. The post mortem revealed an ecchymosis on the side
which on the authority of Casper’s opinion was attributed to the old
injury. The color of the ecchymosis would be sufficient to settle all
such doubts, as the changes of color would have fully developed or the
color even disappeared in part in fourteen days’ time.

An ecchymosis made post mortem does not undergo the color changes
seen in ecchymoses during life, unless the tissues are œdematous in
which the ecchymosis occurs. These changes in color have already been
described, the deep blue changing to violet in eighteen to twenty-four
hours at the earliest. In support of the foregoing and disproving
Casper’s views, Christison found that within two hours after death
severe blows on a dead body are followed by a livid discoloration,
similar to those produced by a blow shortly before death. This livid
discoloration is due to the effusion of a very thin layer of blood
external or superficial to the true skin, sometimes in a stratum of
the true skin or more rarely into the cellular tissue, staining deeply
the partition walls of the fat-cells. Of course, a more or less recent
contusion or ecchymosis on a dead body was not necessarily produced at
the same time as the cause of death. It should be borne in mind in
this connection that ecchymosis is not a necessary result of a blow or
contusion.

According to Devergie, ecchymosis does not appear when a blow inflicted
post mortem is received by skin directly covering a bony surface
beneath, and rarely appears where there is a large amount of fat and no
solid point of resistance beneath the site of the blow.

We have already referred to the fact which Portal long ago remarked,
namely, that the spleen has been ruptured without ecchymosis or
abrasion of the skin. The same absence of ecchymosis has been noticed
in cases where