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Title: The Law and Medical Men
Author: Rogers, Robert Vashon
Language: English
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THE LAW AND MEDICAL MEN
BY
R. VASHON ROGERS, JR.,
_Of Osgoode Hall, Barrister-at-Law_.
TORONTO, CANADA,
AND
EDINBURGH, SCOTLAND:
CARSWELL & CO., LAW BOOK PUBLISHERS.
1884.
PREFACE.
The idea that in the library of nearly every practitioner in the
professions of both Physic and Law there has been for some time a
small gap among the books, which could be filled by a little work like
this now submitted, has induced the author to prepare and publish the
following pages.
While it is hoped that this little work will prove of use to the
members of the Legal and Medical Professions, it is intended to be
suggestive rather than exhaustive—a primer not an encyclopædia; and
it is not expected that it will obviate the necessity for frequent
conferences between physicians and lawyers whenever, in the practice of
either, questions arise requiring the experience of the other.
In most cases the very words of the judges and reporters have been
used, and if any expressions are noticed that may be deemed over strong
it will be found that they are the words of others: the author’s aim
has been rather to act as an humble compiler and citer of cases, than
to obtrude opinions or theories of his own.
Brief chapters on Dentists and Druggists have been given because of
the intimate connection between these gentlemen and the members of the
medical profession.
With great diffidence this book is committed to the tender mercies
of the critics of these two learned professions—to those who can so
effectually wield the pen, the tongue and the scalpel.
R. V. B., JR.
Kingston, Ont., November, 1884.
CONTENTS.
PREFACE . . . iii
TABLE OF CASES CITED . . . vii–xiii
CHAPTER I.
EARLY PRACTITIONERS AND LAWS . . . 1–14
CHAPTER II.
FEES . . . 15–31
CHAPTER III.
WHO SHOULD PAY THE DOCTOR . . . 32–41
CHAPTER IV.
WHO MAY PRACTISE . . . 42–54
CHAPTER V.
NEGLIGENCE AND MALPRACTICE . . . 55–81
CHAPTER VI.
CRIMINAL MALPRACTICE . . . 82–92
CHAPTER VII.
PROFESSIONAL EVIDENCE . . . 93–107
CHAPTER VIII.
MEDICAL EXPERTS . . . 108–120
CHAPTER IX.
EXPERTS IN INSANITY CASES . . . 121–128
CHAPTER X.
DEFAMATION . . . 129–137
CHAPTER XI.
RELATIONS WITH PATIENTS . . . 138–148
CHAPTER XII.
DISSECTION AND RESURRECTION . . . 149–159
CHAPTER XIII.
DENTISTS . . . 160–173
CHAPTER XIV.
DRUGGISTS . . . 174–188
CHAPTER XV.
PARTNERS, GOODWILL, ASSISTANTS . . . 189–195
INDEX . . . 197–214
TABLE OF CASES CITED.
A.
Abernethy v. Hutchinson, 195
Adams v. Stevens, 17, 18
Adler v. Buckley, 20, 21
Ahearne v. Hogan, 141
Allen v. Davis, 140, 172
″ v. Eaton, 132
Allison v. Hayden, 16
Alpen v. Morton, 137
Anderson v. Burrows, 146
Andeureid’s Appeal, 138
Anon, 134, 190
Anthony v. Smith, 106
Apothecaries Company v. Lotinga, 12, 16
Ashworth v. Kittridge, 102
Askin & Charteris, _re_, 27
Aswell v. Lomi, 142
Austen v. Boys, 191
Aveson v. Lord Kinnaird, 96
Ayre v. Craven, 132, 134, 135.
B.
Bacon v. Charlton, 96
Baker v. London & S. W. Railway, 96
Ballon v. Prescott, 73
Barber v. Merriam, 96, 97, 117.
Barnes v. Means, 58
Barnstable v. Thatcher, 157
Basten v. Butler, 20
Bassett v. Spofford, 24
Battersby v. Lawrence, 16
Baxter v. Gray, 18, 19
Beekman v. Planter, 18
Bell v. Parke, 136
Bellinger v. Craigue, 21.
Bells v. Clifford, 28
Bergold v. Puckta, 131
Berier v. Galloway, 36
Bibber v. Simpson, 52
Billage v. Southbee, 140
Bill v. Neal, 130
Blackburn v. Great Western Railway, 81
Blake v. Midland Railway, 81.
Blackburn v. Mackey, 37, 39
Blogg v. Parkers, 20
Boardman v. Woodman, 113
Bogert v. Indianapolis, 153
Boone v. State, 188
Bowman v. Woods, 51, 53, 64, 100
Boyd v. Lappington, 33
Boynton v. Somersworth, 67, 148
Boyle v. Winslow, 166
Bracegirdle v. Orford, 157
Bradbury v. Bardin, 51, 120
Bradley v. Dodge, 33
Bradford v. People, 147
Brewer v. Dero, 157
Broad v. Pitt, 93
Brown v. N. Y. C., 97
″ v. Marshall, 179
″ v. Sheppard, 99, 101
″ v. State, 143
Buchanan v. State, 29
Buell v. N. Y. C., 117
Burton v. Scott, 128
C.
Cadwallader v. West, 139, 140
Cairo, etc., Railway v. Mahoney, 41
Caldwell v. Murphy, 97
Camp v. Martin, 133
Campan v. North, 94
Campbell v. Richards, 119
Carpenter v. Blake, 57, 58, 63, 64, 72, 73
Carnes v. Nesbitt, 193
Carson v. State, 148
Carter v. Baker, 114
″ v. State, 103
Castner v. Sliker, 112
Cawdry v. Highley, 130
Chamberland v. Morgan, 70
Chapen v. Marlborough, 96, 97
Chicago. etc., Railway v. McKean, 68
Chicago, etc., Railway v. McGiven, 108
Chorley v. Bolcot, 16
Clark v. Gill, 26
Clarke v. Freeman, 132
″ v. Hawke, 138, 139
Clark v. Kerwin, 69, 163
″ v. State, 116, 124
Clay v. Roberts, 134
Cleveland, etc., Railway v. Ferry, 68
Cohen v. Continental Insurance Company, 95
Collier v. Simpson, 99, 103
Collins v. Grady, 19
″ v. Carnegie, 134, 135
″ v. Graves, 23
Colton v. Thomas, 172
Commonwealth v. Butterick, 187
″ v. Cooley, 155
″ v. Hackett, 91
″ v. Hallett, 187
″ v. Loring, 155
″ v. Marshall, 155
″ v. McPike, 91
″ v. Ramsdell, 187
″ v. Rich, 128
″ v. Rodgers, 109, 124, 127
″ v. Sturtevant, 100, 117
″ v. Thompson, 84, 89
Connecticut Mutual Life Ins. Co. v. Ellis, 100
Cooper v. Lloyd, 35
″ v. Phillips, 38, 40
″ v. N. Y. C., 41
Corsi v. Maretzek, 43, 51, 64, 115
Cossey v. L. B, and S. C., 96
Cox v. Midland Counties Ry., 41
Craig v. Chambers, 76
Craine v. Bandoine, 33
Crantz v. Gill, 37
Curtis v. Rochester, etc. Ry., 79
D.
Davidson v. Nicholls, 183
Davis v. Mason, 193
″ v. Ockham, 131
″ v. State, 113, 117, 124, 126
Deane v. Annis, 38
Delafield v. Parish, 124
Demay v. Roberts, 145
Dement, _Ex parte_, 30
Denison v. Denison, 138
Dent v. Bennett, 139, 140, 172
Denton v. State, 97, 98
Dickenson v. Barber, 124
Dingnan v. Walker, 192
Dixon v. Smith, 134
Doggett v. Lane, 141
Duclos’ Succession, 24
Duffit v. James, 21
Durnell v. Corfield, 142
E.
Eakin v. Brown, 68, 163
Edington v. Ætna Life Ins. Co., 96
Edsall V. Russell, 131, 133
Ellis v. Kelly, 16
Emerson v. Lowell Gas L. Co., 112
F.
Fairchild v. Bascomb, 112, 113, 125, 126
Farnsworth v. Garrard, 20
Farlar v. Lane, 141
Farr v. Pearce, 191
Fawcett v. Mothersell, 77
Fenwick v. Bell, 119
Fields v. Rutherford, 76
Fisk v. Wait, 69
Fletcher v. Fletcher, 146
Flint v. Bodenhamer, 124
Flower’s Case, 130
Fox v. Glastonbury, 20
Forgery v. First Nat. Bank, 114
Foster v. Small, 134
Fraser v. Jennison, 94, 103, 106
G.
Gale v. Rector, 103
Gallagher v. Thompson, 20
Gardiner v. Heartt, 56
Gardner v. People, 117
Geiselman v. Scott, 68
Genshaw v. Germain, 17
Getchell v. Hill, 114
George v. Skivington, 183
Gibson v. Russell, 140
″ v. Williams, 119
Gilman v. Andrews, 171
Gladwell v. Steggall, 75
Gramm v. Boener, 69
Goddart v. Haselfoot, 132
Granger Ins. Co. v. Brown, 159
Grattan v. Metropolitan L. I. Co., 95
Gray v. McLaughlin, 97
Greenough v. Gaskill, 93
Greonvelt’s Case, 55
Greville v. Lylee, 142
Guthrie v. Weaver, 153
H.
Haguenin v. Baseley, 138
Hains’ Case, 152
Hall v. Semple, 146
Hammond v. Stewart, 26
Hancke v. Hooper, 58, 167, 194
Handey v. Henson, 17
Haniline v. Commonwealth, 174
Hansford v. Payne, 182
Harbottle and Wilson _re_, 27
Harris v. Panama Railway Co., 103, 113
Harris v. Russell, 94
Harrison v. Bush, 136
″ v. Grady, 33, 35, 36
Hartman v. Tegart, 36
Hartford Pro. Ins. Co. v. Harmer, 108
Harvey v. State, 104
Hastings v. Rider, 128
″ v. Whitley, 193
Hathaway v. Nat. Life Ins. Co., 112
Haynard v. Young, 193
Hathorn v. Richmond, 61
Heald v. Wing, 113, 128
Heath v. Gibson, 59
Hegerick v. French, 80
Heinemann’s Appeal, _re_, 48
Hewitt v. Prime, 95
″ Wilcox, 18
Hibbard v. Thompson, 68, 69
Hides v. Hides, 140
Higham v. Ridgway, 106
Hill v. Featherstonhaugh, 21
Hills v. Home Insurance Co., 113
Hitchcock v. Burgett, 148
Hoard v. Peck, 187
Hoener v. Koch, 118
Hoghton v. Hoghton, 138, 139
Hollenback v. Fleet, 177
Holmes v. Halde, 80
Hood v. Grimes, 65
Horner v. Graves, 193
Horton v. Green, 54, 112
Howe v. Young, 179
Hoyt v. Casey, 39
Hughes v. Hampton, 23
Huffman v. Click, 103
Humphreys v. Stilwell, 137
Hunn v. Hunn, 95
Hunter v. Blount, 64
″ v. Ogden, 73
″ v. Sharpe, 133
Hunt v. Lowell Gas Light Co., 126
Hupe v. Phelps, 21
I.
Illinois Cen. Railway v. Sutton, 97
Indianapolis, etc., Railway v. Gaston, 79
Indian. and Cin. Railway v. Caldwell, 69
J.
Jackson v. Hyde, 77
Jarrett v. Jarrett, 124
Jauncey v. Knowles, 190
Jenkins v. French, 80
Johnson v. Robertson, 131
″ v. Wills, 79
Jones v. Diver, 133
″ v. Fay, 184
″ v. Goodrich, 141
″ v. George, 178
″ v. Murray, 179
″ v. Northmore, 78
″ v. White, 108
K.
Kannen v. McMullen, 21
Keily v. Colton, 164
Keith v. Lothrop, 116
Kennard v. Burton, 97
Kennedy v. People, 108, 119
Kerwhaker v. Cleveland, etc., Railway, 69
Kilborne v. Jennings, 114
Kingston’s Case, Duchess of, 93
Kinney v. Nash, 135
Klock v. Burger, 174
L.
Lamphier v. Philpot, 84
Landon v. Humphrey, 22
Langdon v. Mutual Life Insurance Co., 54
Lee v. Hamerton, 96
″ v. Griffin, 169
Leighton v. Sargent, 58, 64, 67, 79, 118
Lett v. St. Lawrence & Ottawa Railway, 81
Lester v. Pittsford, 113
Linn v. Sigsbee, 120
Livingstone’s Case, 113
Long v. Chubb, 132
″ v. Morrison, 21, 57
Longmeid v. Holliday, 74
Lorg v. First German Cong. 113
Lovatt v. Tribe, 125
Luning v. State, 100, 105
Lush v. McDaniel, 97
Lynn’s Case, 154, 158
M
Mackenna v. Parkes, 190
Mahoney v. Nat. Widow’s Life Ass. 96
Major v. Knight, 142
Mallan v. May, 193
Malton v. Nesbitt, 125
Marshall v. Brown, 101
″ v. Peck, 179
Masons v. Fuller, 111
Matteson v. N. Y. C. Railway, 97, 117
Maxon v. Perrott, 170
May v. Thompson, 192
Meagher v. Driscoll, 157
Mendum v. Commonwealth, 113
Mertz v. Detweiler, 64, 118
Metropolitan Railway v. Jackson, 76
Michigan Cen. Railway v. Hasseneyer, 61
Middleton v. Sherbourne, 141, 143
Miller v. Beal, 23
Mills v. Perkins, 174
Mitchell v. Homfray, 141
″ v. State, 119
″ v. Connor, 147
Mock v. Kelly, 18, 25
Moises v. Thornton, 135
Morgan v. Hallen, 17
″ v. Schuyler, 173
Morrison v. Harmer, 133
Morse v. Auburn, etc., Railway, 81
Morse v. State, 119
Murphy v. Kellett, 137
Mc.
McAllister v. State, 124, 126
McCandless v. McWha, 58, 59, 61, 67
McClallen v. Adams, 26
McClurg’s Appeal, 193
McEwan v. Bigelow, 114
″ v. Milne, 138
McIntyre v. Belcher, 191
McLeod v. Wakley, 133
McPherson v. Chedell, 18
N.
Newell v. Doty, 117
New England Glass Co. v. Lovell, 119
New Orleans, etc., Railway v. Allbritton, 111
Newton v. Ker, 23
Nickson v. Brohan, 194
Nicols v. Pitman, 195
Norton v. Sewall, 182
O.
Ordway v. Haynes, 103
P.
Page v. Barker, 118
″ v. State, 126
Parker v. Adams, 68, 69, 163
Parkinson v. Atkinson, 26
Parnell v. Commonwealth, 114, 124
Patten v. Wiggin, 52, 57, 58, 62
Peacock v. Kesnot, 140
Pennell v. Cummings, 145
People v. Anderson, 103
″ v. Hall, 99
″ v. Monroe, 20
People v. Montgomery, 30
″ v. McCann, 125
″ v. N. Y. Hospital, 69
″ v. Wheeler, 103
Perionowsky v. Freeman, 66, 70
Phillips v. S. W. Railway, 79
Pierson v. People, 95
Pinney v. Cohill, 101
Piper v. Manifee, 22, 167
Pippin v. Shepherd, 65, 74
Poe v. Mondford, 131
Polk v. State, 112
Popham v. Brooke, 140
Potter v. Warner, 63, 71
″ v. Virgil, 36
Poucher v. Norman, 16
Pratt v. Barker, 140
Puryear v. Reese, 124
Q.
Quafe v. C. & N. W. Railway, 98
R.
Ramadge v. Ryan, 118, 119, 132
″ v. Wakley, 132
Ray v. Burbank, 186
Reynolds v. Graves, 54
″ v. Robinson, 120
Rhodes v. Bates, 138
Rice v. State, 84, 87, 89
Rich v. Pierpont, 59, 62, 117
Ripon v. Bittel, 100, 101
Ritchey v. West, 65
Roberts v. Johnson, 112
″ v. Kerfoot, 24
Robinson v. N. Y. C. Railway, 103
Rodgers v. Cline, 133
Roelker, _re_, 29
Rogers v. Cain, 97
″ v. Turner, 38
Roosa v. Boston Loan Co., 98
Rose v. College of Physicians, 12
Rowell v. Lowell, 98
Ruddock v. Lowe, 65
Russell v. State, 128
Rutherford v. Evans, 135
″ v. Norris, 110
R. v. Bennett, 194
″ v. Burnett, 147
″ v. Campbell, 46
″ v. Case, 144
″ v. Chamberlaine, 85
″ v. Coll. Phy. & Sur., 45, 47
″ v. Coll. Phy. & Sur., Ont., 148
″ v. Coney, 144
″ v. Crouch, 103
″ v. Cuddy, 144
″ v. Downes, 39
″ v. Frances, 144
″ v. Fraser, 147
″ v. Gibbons, 93
″ v. Gilles, 154
″ v. Hannah, 147
″ v. Hessel, 46
″ v. Higginson, 125
″ v. Hines, 39
″ v. Lee, 91
″ v. Long, 83, 86, 87
″ v. Lynn, 154, 159
″ v. Macleod, 66
″ v. Markuss, 88
″ v. Morby, 39
″ v. Noakes, 56, 183
″ v. Offord, 124
″ v. Price, 154
″ v. Richards, 125
″ v. Rosinski, 144
″ v. Searle, 120, 124, 125
″ v. Sharpe, 153, 154
″ v. Stanton, 144
″ v. Simpson, 65, 84, 87
″ v. Smith, 40
″ v. Spiller, 84
″ v. Spilling, 85
″ v. Stitt, 117
″ v. Sutton, 147
″ v. Tefft, 46, 190
″ v. Tessymond, 194
″ v. Thomas, 99
″ v. Trick, 83
″ v. Van Butchell, 84
″ v. Vantandillo, 147
″ v. Wagstaffe, 39
″ v. Webb, 84, 90
″ v. West, 147
″ v. Whitehead, 117
″ v. Williamson, 85
″ v. Wright, 125
S.
Sainter v. Ferguson, 193
Scott v. Wakem, 146
Seare v. Prentice, 21, 64
Seavey v. Preble, 143
Secord v. Harris, 131
Sellen v. Norman, 40
Shafer v. Dean’s ad’mor, 120
Shearwood v. Hay, 44
Sheldon v. Johnston, 24
Shields v. Blackburne, 65, 66
Simmons v. Means, 18
Simonds v. Henry, 58, 162, 168
Simpson v. Dismore, 18
Sinclair v. Rourk, 113
Sizer v. Burt, 106
Skinner v. G. N. Ry., 96
Skirving v. Ross, 134
Slater v. Baker, 59, 71, 168
Small v. Howard, 61
Smith v. Lane, 51
″ v. Hyde, 25
″ v. Watson, 18, 34
Southey v. Denny, 130, 132
Spaun v. Mercer, 33
Stackman v. Vivian, 38
Staunton v. Parker, 94
State v. Bowman, 117
″ v. Clark, 118
″ v. Cook, 112
″ v. Dickinson, 147
″ v. Fitzgerald, 147
″ v. Gedicke, 147
″ v. Hardister, 88
″ v. Henkle, 112
″ v. Hoyt, 104, 105
″ v. Holmes, 174
″ v. Knowles, 188
″ v. Laffer, 187
″ v. Jones, 117
″ v. Powell, 117
″ v. Reddick, 112
″ v. Shultz, 85, 89
″ v. Slagh, 117
″ v. Slagle, 147
″ v. Smith, 116, 117
″ v. Sturtevant, 117
″ v. Watson, 110
″ v. West, 104
″ v. Windsor, 126
″ v. Wood, 111, 117
″ v. Wray, 188
Stephenson v. N. Y. and H. R. Ry., 41
Stirling v. Thorp, 100
Street v. Blackburn, 166
St. Louis Mut. Ins. Co. v. Graves, 115
Suegoe’s Case, 133
Summer v. State, 31
Sutton v. Tracy, 48, 54
Swain v. Tyler, 38
T.
Tate v. State, 155, 156
Tatum v. Mohr, 114
Tingley v. Congill, 125
Thistleton v. Frewer, 52
Thomas v. Winchester, 180
Thorpe v. Shapleigh, 36
Todd v. Myers, 23
Toomes, _re_, 111, 113
Towne v. Gresley, 17
Tracy Peerage, 110
Tullis v. Kidd, 113
Tulty v. Alewin, 131
Turner v. Reynall, 44, 190
″ v. Turner, 26
Tuson v. Batting, 19, 23
Twombly v. Leach, 117
U.
U. S. v. McGlue, 126, 127
Utley v. Burns, 58
V.
Van Bracken v. Fondar, 179
Van Tassel v. Capson, 135
Veitch v. Russell, 16
Villalobas v. Mooney, 23
W.
Wade v. DeWitt, 104, 105
Wagstaffe v. Sharpe, 44
Walker v. G. W. Railway, 41
Wakley v. Healey, 135
Washburn v. Cuddihy, 103
Watling v. Walters, 33
Watson v. Vanderlash, 131
Webb v. Paige, 26, 28
Webber v. Shampake, 36
Wennall v. Adney, 40
Whetherbee v. Whetherbee, 128
Whalen v. St. Louis, etc., Railway, 79
Wharton v. Brook, 130
Wheeler v. Sims, 23
Whitcomb v. Reid, 171
Whittaker v. Parker, 110
White v. Bailey, 124, 125
″ v. Carroll, 132
Williams v. Poppleton, 118
″ v. Williams, 153
Wilmot v. Howard, 57, 70
″ v. Shaw, 47
Wilson v. Brett, 65, 166
″ v. Granby, 97
″ v. People, 117
″ v. Rastall, 93
Winans v. N. Y. & E. Railway, 113, 121
Wise v. Wilson, 194
Witt v. Witt, 97
Wohlfarht v. Beckert, 185
Woods v. Kelly, 37
Woods v. State, 188
Wright v. Proud, 140
Wynkoop v. Wynkoop, 153
Y.
Yertore v. Wiswall, 80
Yoe v. State, 105
Young v. Makepeace, 116
CORRIGENDA.
Page 5, line 23, _for_ ousted _read_ ousting.
″ 8, line 3, _for_ was _read_ were.
″ 12, line 17, _for_ his _read_ its.
″ 24, line 19, _for_ friend _read_ friends.
″ 43, line 18, _read_ Hahnemann _for_ Hahnneman.
″ 55, line 6, _for_ misdemeanour _read_ misdemeanor.
″ 85, last line but one, transpose the , and the ;.
″ 96, line 7, _read_ witnesses, can be excluded the
″ 103, line 15, _for_ Brown’s _read_ Browne’s.
″ 105, line 10, _for_ words _read_ works.
″ 115, line 5, _for_ opinion _read_ opinions.
″ 119, last line but one, _read_ opinion of another etc.
″ 138, line 1, _read_ occupies _for_ occupying.
″ 173, line 12, _read_ within.
″ 175, line 4, _read_ chemical.
″ 177, last line, _read_ venditor.
THE LAW AND MEDICAL MEN.
CHAPTER I.
EARLY PRACTITIONERS AND LAWS.
The first medical practitioners in England, of whom we have any record,
were the Druids: these philosophers, theologians and soothsayers,
also practised medicine and surgery, and were skilled in anatomy and
physic. To add to the veneration in which they were held, to impress
the ignorant masses with the idea that they had power with the gods and
could prevail, and perhaps to cultivate a belief in the efficacy of
the remedies provided, they mingled incantations and charms with their
medicaments and nostrums. Their panacea was the mistletoe, cut from
the sacred oak, with a consecrated hook of gold held in holy hands, on
a mysterious night when the propitious beams of the waxing moon fell
upon it; wrapped for a while in a sanctified cloth and treasured up in
the holy of holies of the woodland god, this strange parasitic growth
was deemed possessed of many virtues and was named All-heal. Two other
herbs, the selago and samolus were also in those days highly valued for
their medicinal efficacy.
To every healing herb a divinity was assigned by the Druids, and the
good gods were ever ready to help suffering |2| humanity against the
evil genii who presided over the poisonous and unwholesome.
These priests also considered the creeping through _tolmens_ (or
perforated stones) good for many diseases. Their best charm, however,
was the anguineum, or snake’s egg, produced (’tis said) from the saliva
and frothy sweat of a cluster of snakes writhing in a tangled mass,
tossed in the air by the fierce hissings of the serpents, and caught
ere it fell to the ground in a clean white cloth. A genuine egg, though
encased in gold, would float against a running stream and do many
another marvel. The Druid seems to have been a herbalist, a believer
in the faith or prayer cure, as well as a homœopathist, for in taking
the diseased plant, the mistletoe, to cure diseases he anticipated the
doctrine of _similia similibus curantur_.
Even in those old days, according to Tacitus, there were female
physicians who competed with the practitioners of the other sex. The
wives of the Druids exercised the calling of sorceresses, causing
considerable evil by their witchcrafts, but caring for warriors
wounded in battle. Later on women seem to have enjoyed a pre-eminence
as physicians and surgeons in England. Thus are we told that a “Mayd”
treated a wounded “Squyre,”
Meekely shee bowed downe, to weete if life
Yett in his frosen members did remaine;
And, feeling by his pulses beating rife
That the weake sowle her seat did yett retaine,
Shee cast to comfort him with busy paine.
* * * * *
Into the woods thenceforth in haste shee went,
To seeke for herbes that mote him remedy;
For she of herbes had great intendiment.
* * * * *
There, whether yt divine tobacco were,
Or panachæa, or polygony,
Shee fownd, and brought it to her patient deare,
Who al this while lay bleding out his hart blood neare. |3|
The soveraine weede betwixt two marbles plaine
Shee pownded small, and did in peeces bruze;
And then atweene her lilly handes twaine
Into his wound the juice thereof did scruze;
And round about, as she could well it uze,
The flesh therewith she suppled, and did steepe
T’abate all spasme and soke the swelling bruze;
And, after having searcht the intuse deepe,
She with her scarf did bind the wound from cold to keep [1].
Of fair Nicolette we read—
Her strength alone
Thrust deftly back the dislocated bone;
Then culling various herbs of virtue tried,
While her white smock the needful bands supplied,
With many a coil the limb she swathed around,
And nature’s strength returned.
Chirurgery, or surgery—that is manual application—appears to have been
the earliest branch of the healing art. We are told of a wonderful cure
effected upon Queen Elgiva, whose beauteous face had been mutilated
by the brutal clergy. Many superstitious practices were in the early
days mingled with the operations of the surgeons, as well as of the
physicians. History speaks of a man the muscles of whose legs were
drawn up and contracted so as to defy all the skill of the surgeons,
until an angel advised wheat flour to be boiled in milk, and the limb
to be poulticed with it while warm; then all was well.
From the tenth to the twelfth century the practice of medicine and
surgery, in England, was almost exclusively in the hands of the monks
and clergy. So lucrative did they find it that many of the monks
devoted themselves entirely to it, to the utter neglect of their
religious duties. This the authorities of the church disapproved of,
and made many attempts to restrain. At last, in 1163, it was enacted
by the Council of Tours that no clergyman or monk should undertake any
bloody operation. From that time |4| the clerics confined themselves
to prescribing medicines, and the practice of surgery naturally fell
into the hands of the barbers and smiths, who had previously been
employed as assistants and dressers to the ecclesiastical operators.
The smiths soon found that most of the business was absorbed by the
barbers: the latter kept little shops for cutting hair, shaving,
bathing and curing the wounded, especially about the royal palaces and
the houses of the great: the shops were marked by a striped pole and a
basin, symbols that all the king’s subjects might know where to apply
in time of need; (the fillet around the pole indicating the ribbon for
bandaging the arm in bleeding, and the basin the vessel to receive
the blood). The barbers became so important that in 1461 the freemen
of “The Mystery of Barbers, using the mystery or faculty of Surgery,”
obtained a charter from Edward IV., and were incorporated under the
name of “The Company of Barbers in London,” and none were allowed to
practise save those admitted by the company. Although this charter was
several times confirmed by subsequent kings, yet side by side with
the regular barber-surgeons there grew up a body of men who practised
pure surgery, and who actually formed a company, called “The Surgeons
of London.” In 1540, by Act of Parliament, these rival companies
were united and named “The Masters, or Governors, of the Mystery and
Commonalty of the Barbers and Surgeons of London.”
The third section of this Act, after reciting that persons using the
mystery of surgery oftentimes meddled and took into their cure and
houses people infected with pestilence, great pox, and other contagious
infirmities, and also used or exercised barbery, as washing, or
shaving, or other feats thereto belonging, “which was very perilous for
infecting the King’s liege people resorting to their shops and houses
and there being washed and shaven,” enacted “that no |5| manner of
person within the City of London, suburbs of the same and one mile
compass of said City of London, after the feast of the Nativity of Our
Lord God then next coming, using barbery or shaving, or that hereafter
shall use barbery or shaving within the said city, etc., he nor they,
nor none of them, to his, her, or their use, shall occupy any surgery,
letting of blood, or any other thing belonging to surgery, drawing of
teeth only excepted; and furthermore, in like manner, whosoever that
useth the mystery or craft of surgery within the circuit aforesaid, as
long as he shall fortune to use the said mystery or craft of surgery,
shall in nowise occupy nor exercise the feat or craft of barbery or
shaving, neither by himself, nor by one other for him, to his or their
use; and moreover, that all manner of persons using surgery for the
time being, as well freemen as foreigners, aliens and strangers within
the circuit aforesaid, before the feast of St. Michael the Archangel,
next coming, shall have an open sign on the street side where they
shall fortune to dwell, that all the King’s liege people there passing
by may know at all times whither to resort for remedies in time of
necessity [2].”
In 1745 this union of barbers and surgeons was dissolved; or,
apparently, the surgeons ousting the barbers, received a new name
and all the privileges of the old company, with the exclusive right
to practise within London and for seven miles around. In 1800 the
Surgeons’ Company was called “The Royal College of Surgeons, in
London;” and this, in 1843, was changed to that of “The Royal College
of Surgeons of England.”
In Scotland, at a very early day, the chirurgeons and barbers were
united, and enjoyed many rights and privileges. In 1505 the “craftes
of Surregeury and Barbouris” were |6| formed into a college or
corporation, by the town council of Edinburgh, and became one of the
fourteen incorporated trades of the city. George the Third erected this
corporation into a Royal College, and now it is known as “The Royal
College of Surgeons of Edinburgh.” In 1599, James VI., “to avoid the
inconvenience caused by ignorant, unskilled, and unlearned persons,
who, under the colour of chirurgeons, are in the habit of abusing the
people to their pleasure, and of destroying thereby infinite numbers
of his Majesty’s subjects,” incorporated the faculty of Physicians
and Surgeons of Glasgow; and gave them jurisdiction over the City of
Glasgow and the adjoining counties. A recent Act of Parliament has very
much shorn the privileges of this faculty [3].
In Ireland, the “Fraternity of Barbers and Chirurgeons of the Guild
of S. Mary Magdalene” was incorporated by Henry II. The apothecaries
belonged to this body until 1745, when, with the aid of a statute, they
set up for themselves, as “The Guild of S. Luke,” or “The worshipful
Company of Apothecaries.” In 1784 the regularly educated surgeons of
Dublin became incorporated under the name of “The Royal College of
Surgeons in Ireland.”
In the twelfth century medicine seems to have been first studied
as a science in England. The Universities enacted that none should
practise physic without passing through a certain course of study. In
the fourteenth century the degree of Doctor of Physic was by no means
uncommon. For many years physicians were greatly aided in chemistry and
medical science by the discoveries of alchemists, and the search after
the philosopher’s stone and the elixir of life gave many useful hints
to practitioners. Chaucer well describes a “Doctour of Phisike,” in the
Prologue to the |7| Canterbury Tales, and gives an insight into the
state of medical knowledge in the fourteenth century.
——He was grounded in astronomie.
He kept his patient a ful gret del
In houres by his magike naturel.
He knew the cause of every maladie,
Were it of cold, or hote, or moist, or drie,
And when engendred, and of what humour.
He was a veray parfite practisour.
The cause yknowe, and of his harm the rote,
Anon he gave to the sike man his bote.
Ful redy hadde he his apothecaries
To send him dragges, and his lettuaries,
For eche of hem made other for to winne:
His frendship n' as not newe to beginne.
Wel knew he the old Esculapius,
And Dioscorides, and eke Rufus;
Old Hippocras, Hali, and Gallien;
Serapion, Rasis and Avicen;
Averrois, Damascene and Constantin,
Bernard, and Gatisden and Gilbertin.
Of his diete mesurable was he,
For it was of no superfluitee,
But of gret nourishing and digestible.
His studie was but litel on the Bible.
In 1421, under Henry V., an Act was prepared, providing that “no one
shall use the mysterie of fysyk, unless he hath studied it at some
university, and is at least a bachelor in that science. And saying, the
sheriff shall inquire whether any one practises in his county contrary
to this regulation; and if any one so practise fysyk he shall forfeit
£40 and be imprisoned: and any woman who shall practise fysyk shall
incur the same penalty.” But this appears never to have become law.
It was not, however, until the beginning of the sixteenth century that
modern British medical practice may be said to have commenced. And
in 1511 was passed the first |8| statute for regulating the medical
profession [4]. From the preamble of this Act we learn that physic and
surgery were then practised by “ignorant persons, who could tell no
letters on the book, and by common artificers, smiths, weavers, and
women, who took upon themselves great cures, partly using sorcery and
witchcraft, partly applying very noxious medicines to the disease.”
Many years after this, however, were to be found those who though
not “ignorant persons” approved of what would now be called sorcery,
witchcraft and noxious medicines. Bacon gives the following as
infallible cures for the whooping-cough: let a pie-bald horse breathe
on the patient: give him fried mice, three a day for three days in
succession: pass the sick person nine times under the belly and over
the back of a donkey: feed the patient on currant cake made by a woman
who did not change her name when she was married: or, hold a toad in
the mouth that it may catch the disease. Burton, the Anatomist, says
that an amulet consisting of a spider in a nut-shell, lapped with silk,
is a cure for ague. Graham, in his “Domestic Medicine,” prescribes
spider’s webs for ague and intermittent fevers.
By the statute of Henry the profession was for the first time divided
into physicians, surgeons and apothecaries: a division still kept up
in England. It also enacts, under a penalty, that “no physician or
surgeon shall practise in London, or within seven miles of it, without
examination by the Bishop of London, or the Dean of St. Paul’s, and
four doctors of physic; nor out of the city, or precinct, but if he
be first examined and approved by the bishop of the diocese, or his
vicar-general, calling to them such expert persons in the same faculty
as their discretion shall think convenient.” Fancy a D.D. sitting in
judgment on an |9| M.D. How orthodox and regular in his attendance at
church would the latter have to be! However, 14 & 15 Henry VIII. cap.
5, vests this power of examination in the President and Elects of the
College of Physicians of London. This Royal College was founded in 1518
by letters patent from the king. Power was given to it to make laws
for the government of all men of the faculty of physic in London and
within seven miles, and for the correction of the physicians within
those limits and their medicines: and none could practise within those
limits without a license. Shortly after an Act of Parliament confirmed
this patent so that none could practise in England without the license
of the college, save graduates of Oxford and Cambridge. Subsequently
Fellows of the college were given power, together with the warden of
the Apothecaries’ Society, to enter the houses of apothecaries in
London, to examine their wares, drugs and stuffs, and to burn and
destroy those that were defective.
In 1560, by 32 Henry VIII. cap. 40, surgery was declared a part of
physic, and the practice thereof was thrown open to all of the company
or fellowship of physicians throughout the realm. Not long afterwards
the Parliament of this reforming king seems to have changed its mind
and made a move in the direction of free-trade in physic, and by 34 &
35 Henry VIII. cap. 8, any man or woman was permitted to practise to
a limited extent. We fancy we can trace the influence of the sturdy
king in the provisions of this Act, which was entitled, “An Act that
persons being no common surgeons may administer outward medicines
notwithstanding the statute;” the statute after referring to the Act
passed in the third year of the king’s reign (which imposed penalties
upon those who should practise as physicians or surgeons without being
examined and admitted) goes on to say, “Sithence the making of which
said Act (that of 3 Henry VIII.) the |10| company and fellowships of
surgeons of London, minding only their own lucres, and nothing the
profit or ease of the diseased or patient, have sued, troubled and
vexed divers honest persons, as well men as women, whom God hath endued
with the knowledge of the nature, kind and operation of certain herbs,
roots and waters, and the using and ministering of them to such as be
pained with customable diseases, as women’s breasts being sore, a pin
and the web in the eye, uncomes of hands, burnings, scaldings, sore
mouths, the stone, strangury, saucelin, and morphers, and such other
like diseases; and yet the said persons have not taken anything for
their pains or cunning, but have ministered the same to poor people
only, for neighbourhood and God’s sake, and of pity and charity. And
it is now well-known that the surgeons admitted will do no cure to any
person, but where they shall know to be rewarded with a greater sum or
reward than the cure extendeth unto: for in case they would minister
their cunning unto sore people unrewarded there should not so many rot
and perish to death, for lack of help of surgery, as daily do; but the
greatest part of surgeons admitted have been much more to be blamed
than those persons that they trouble.” It further states that “although
the most part of the persons of the said craft of surgery have small
cunning, yet they will take great sums of money and do little therefor,
and by reason thereof they do oftentimes impair and hurt their patients
rather than do them good.” In consideration whereof and for the ease
and health of the king’s poor subjects, it was enacted that it should
be lawful to every person having knowledge and experience of the nature
of herbs, etc., to practise and minister them without suit or vexation.
(Here is evidence of the existence of herb doctors, hydropaths and lady
physicians in those days.)
Numerous Acts of Parliament have been passed touching the medical
profession since the days of “Bluff King Hal,” |11| one under
James I. to prevent popish recusants practising physic, or using or
exercising the trade or art of an apothecary; another under William
and Mary for exempting apothecaries from serving as constables or
scavengers; another for exempting spirits and spirituous liquours used
by physicians, &c., in the preparation of medicine from duty, and
others for purposes too numerous to mention. But it is the Medical
Act of 1858, as amended by 22 Vict. cap. 21, that now governs the
practitioners.
In 1681, the Royal College of Physicians of Edinburgh, was incorporated
and power was given of licensing practitioners and of preventing others
practising. In Ireland, although the idea had been conceived many years
before, it was not until 1654 that a body called “The President and
Fraternity of Physicians” was founded; subsequently this company was
incorporated and powers given to it very similar to those enjoyed by
the London College. Under the Medical Act, Her Majesty was empowered to
change the name of this institution (which had already enjoyed several
aliases), to that of “The Royal College of Physicians of Ireland.”
In England and Ireland a third class of medical practitioners exists,
namely, the apothecaries. Prior to the days of Henry VIII. an
apothecary seems to have been the common name in England for a general
practitioner in medicine. About that time shops began to be established
for the exclusive sale of drugs and medicinal compounds, and those
who kept these shops often took upon them to doctor their customers.
In 1542 Henry’s parliament permitted any irregular practitioner to
administer outward medicines, and these shopkeepers readily availed
themselves of the permission granted by the Act and pushed the sale of
their drugs and obtained larger prices on account of the advice they
gave with them, and they appropriated exclusively the title of |12|
apothecaries. In 1617 they were incorporated under the name of “The
Master, Wardens and Society of the Art and Mystery of Apothecaries of
the City of London.” About the beginning of the seventeenth century
they began to prescribe as well as supply medicine; and although the
College of Physicians resisted this poaching on what they considered
their preserves, still early in the eighteenth century the matter was
settled in favor of the apothecaries, since which time they have been
legally recognised as a branch of the medical profession [5].
An Act of 1815 now regulates the practice of apothecaries throughout
England and Wales, and no one can act as such or recover any charges
for his services unless he has a certificate from the Society of
Apothecaries. An apothecary is bound to make up any prescription
duly signed by a licensed physician [6]. Creswell, J., considered an
apothecary one “who professes to judge of internal disease by its
symptoms, and applies himself to cure that disease by medicine.” And
Glenn says that the practice of an apothecary may now be said to
consist in attending and advising patients afflicted with diseases
requiring medical (as distinguished from surgical) treatment; and
prescribing, compounding and supplying medicines for their cure and
relief [7].
The invention of medicine was generally attributed by the ancients
to the gods, and both in Egypt and Greece female divinities were
intimately connected with the healing art. Isis not only caused, but
cured disease; she discovered—so it was said—many remedies and as late
as Galen several compounds in the materia medica bore her name. Hygeia,
the daughter of Æsculapius, was deemed |13| the goddess of health, and
Juno presided at accouchments. These fables show that in the remotest
antiquity woman practised medicine. The laws of Greece, at a later
period, forbad women to practise; thus, also, was it in Rome. However,
300 years before Christ, Agnodice—a young Athenian—dared to attend
in disguise the schools of medicine forbidden to her sex. Preserving
her incognito, when her education was finished she soon acquired a
lucrative practice; and eventually her case caused the law against
women to be revoked.
In the Middle Ages, among Mohammedans, many women were skilled in
attending to the needs of their own sex; and among the Christians,
nuns as well as monks ministered to bodies as well as souls diseased,
practising both surgery and physic. In Italy, at Salerno, women
prepared drugs and cosmetics, practised among persons of both sexes,
took doctor’s degrees, wrote treatises on medical subjects, obtained
the royal authority to engage in the art, and composed poems in praise
of their science. At the University of Bologna, as late as 1760,
Anna Morandi Manzolini filled the chair of Anatomy; her reputation
was European, and her lecture-room was frequented by students of all
countries—so great was her skill in delicate dissections, and so
clearly did she demonstrate the wonders of the human form divine. Dr.
Maria delle Donne was professor of medicine and obstetrics in the same
college in 1799; and many were the lady graduates of the Universities
of Padua, Pavia and Ferrara, as well as Bologna.
In France, the earliest official document extant relative to the
profession (dated 1311) forbids the practice of surgeons, or female
surgeons, who have failed to pass the required examinations; and
an edict of 1352 refers to female practitioners. In Spain, the
Universities of Cordova, Salamanca and Alcala bestowed doctor’s
degrees on |14| many women. In Germany, also, a number of the fair
sex successfully cultivated the science of medicine, and practised it,
in the last century and in the early part of this. In England, as has
already been seen, in early days women practised the healing arts.
Henry VIII. checked them for a time, but in his old age, changing his
mind on this, as on almost every other subject, gave them liberty to
minister to the outward and less serious ailments of his people.
Crossing the Atlantic an entry is found, under the date of March, 1638,
which tells a tale. It is this: “Jane Hawkins, the wife of Richard
Hawkins, had liberty till the beginning of the third month, called May,
and the magistrates (if she did not depart before) to dispose of her:
and in the meantime she is not to meddle in surgery or phisick, drinks,
plaisters or oyles, nor to question matters of religion, except with
the elders for satisfaction [8].” But now woman is no longer regarded
as too good or too stupid to study medicine in America; in nearly
every State in the Union she has free access to Medical Colleges [9].
The Council of the College of Physicians and Surgeons of Ontario
admit to registration and practice any person who complies with their
requirements, without regard to sex. And the Imperial Parliament, by an
Act passed in 1876, affirmed the principle that women are entitled to
become registered practitioners of medicine.
|15|
CHAPTER II.
FEES.
The Roman Law considered the services of an advocate and of a physician
as strictly honorific; and, as in the Roman age, practitioners in law
and medicine, were usually men of leisure and wealthy, who did not
practise for the sake of a livelihood, remuneration for their services
could not be recovered in the ordinary way. Although owing to the
Utopian ideas concerning the honour of a liberal profession then in
vogue it was considered that any mention of a “fee,” or a “salary,” by
that name would soil and disgrace the robe of a practitioner, still
it was an established fiction of the Civil Law that the promise of an
_honorarium_ always accompanied the employment of a professional man,
and that such promise created one of those obligations that might be
enforced by action [10]. The Common Law of England adopted the theory of
the Civil Law as to the high standing of the profession, but afforded
no remedy for the recovery of the charges. Surgeons and apothecaries
were enabled to recover by law remuneration for their services, but
a physician was presumed to attend his patient for an _honorarium_
(something left to the honour of the patient to pay or not to pay),
and could not maintain an action for his fees until the passing of
the Medical Act, 1858, put an end to his anomalous position in this
money-making age, and gave him as free an entrance into the courts of
law to recover compensation for his work and labour, time and |16|
skill bestowed, as the worker in any other path of life. Before this a
physician could not recover even expenses out of pocket, such as those
incurred in travelling to visit a patient, unless there had been an
agreement specially made to that effect [11].
If a physician was a surgeon as well, and attended a case where the
advice of a physician and the aid of a surgeon were necessary, he
could recover the value of his services as a surgeon but not as a
physician [12].
In England the question sometimes arises, where the practitioner is
only a surgeon, whether he can charge for attendance as a physician or
as an apothecary. It has been held that typhus fever is not a disease
that belongs to a surgeon’s branch of medicine, and that he cannot
therefore recover for his attendance on a patient suffering under it.
So, too, with regard to consumption and dropsy, though, in the latter
case, he may recover for any work done for the patient specifically
within his practise, such as puncturation, scarification, bandaging and
friction [13].
At one time it was considered that an apothecary was not entitled to
charges for his attendances, but only for his medicine: then the law
decided that he might charge for either attendances or medicines, but
not for both. Shortly afterwards Tenterden held that one might recover
for attendance (the charge being reasonable), as well as for medicine.
After that full justice was done to this branch of the profession, and
it was decided that there was no rule of law, and there certainly is
none of morals, to prevent an apothecary from making distinct charges
for |17| attendances and medicines; but if he charges very high for
his drugs the jury may think the attendances ought not to be paid for
as well [14].
In Scotland, also, at one time physicians’ fees were regarded as
honoraries, and not recoverable by action except under a special
contract [15]. Neither in the United States nor in the Colonies have
these distinctions been made between the different branches of the
profession, nor has the principle been adopted that the profession of
a physician is a merely honorary one, and that his services cannot be
charged for [16].
In England every person registered according to the Medical Act,
1858, and in Ontario those registered under the Provincial Act, can
practise medicine or surgery, or medicine and surgery; and can recover
in any court of law, with full costs of suit, reasonable charges for
professional aid, advice, and visits, and the costs of any medicine
or other medical and surgical appliances rendered or supplied to his
patient; but no person is entitled to recover any such charges in
any court of law unless he can prove upon the trial that he is so
registered. Registration has now become a part of the plaintiff’s
title to recover, which it is imperative upon him to prove. A copy of
the medical register for the time being, purporting to be printed and
published under the direction of the General Council, is evidence in
all courts that the persons therein specified are registered according
to the provisions of the Medical Act; and the absence of the name of
any person is evidence, until the contrary be made to appear, that
such person is not so registered; and the contrary may be shown by a
certified copy, under the hand |18| of the registrar, of the entry
of the name of such person on the register [17]. Similar rules are in
force in the various States where Medical Boards have been constituted
by legislative authorities for the purpose of examining and licensing
practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana,
Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin.
Subject to the various statutory enactments, every physician or
surgeon, or any one who chooses to act as such, is entitled to a
reasonable reward for his services and for his medicines. If there was
no express promise to pay when the services were requested, the law
implies one: the broad principle being, that when a person has bestowed
his skill and labor for the benefit of another, at his request, and
no agreement is made in respect to them, the law raises an implied
promise to pay such compensation as the person performing the service
deserved to have; and when there is no statutory or other restraint
upon the remedy, an action lies on such promise [18]. The amount, unless
settled by law, is a question for the jury, and in settling that, the
eminence of the practitioner, the wealth of the patient, the delicacy
and difficulty of the operation, as well as the time and care expended,
are to be considered [19].
The law, as a rule, sets no limitation to fees, provided they be
reasonable. Within this rule a practitioner is allowed discretionary
powers and may charge more or less according to his own estimate of
the value of his services. No one will pretend to assert that all
services are of equal value, and no one will claim that those who
can |19| render them the most skilfully should receive only the
same reward as those who can render them the least so. A medical man
of great eminence may be considered reasonably entitled to a larger
recompense than one who has not equal practice, after it has become
publicly understood that he expects a larger fee, inasmuch as the party
applying to him must be taken to have employed him with a knowledge
of this circumstance [20]. But doctors must not be unreasonable in
their charges; as Lord Kenyon remarked, “Though professional men are
entitled to a fair and liberal compensation for their assistance, there
are certain claims which they affect to set up, which if unreasonable
or improper, it is for the jury to control” [21]. That a patient is a
millionaire does not justify an extortionate charge. The French rule
is to consider the gravity of the disease as well as the fortune and
position of the patient in settling the remuneration of a physician [22].
The existence of an epidemic does not authorise the charging of
exorbitant fees [23].
In some ages and countries the fees payable to medical practitioners
have been fixed by law. In Persia, for instance, in ancient times the
law said that “a physician shall treat a priest for a pious blessing,
or a spell; the master of a house for a small draught animal; the lord
of a district for a team of four oxen; and if he cure the mistress of
a house a female ass shall be his fee.” (Vendidad Farg. VII.) To take
another instance, the medical men in attendance upon the old princes
of Wales had their fees settled; for curing a slight wound, a surgeon
received for payment the clothes of the injured person which had been
stained with blood; |20| and for curing a dangerous wound he had, in
addition to the bloody clothing, board and lodging while in attendance,
and 180 pence. In Egypt, according to Herodotus, practitioners were
paid out of the public treasury, although they might also receive fees
from their patients.
A medical man can also recover for the services rendered by his
assistants or students; and that even though the assistant is
unregistered [24]. It is not necessary that there should be any agreed
specified price, he will be allowed what is usual and reasonable [25].
The right of a medical man to recover his charges for professional
services does not depend upon his effecting a cure, or on his services
being successful, unless there is a special agreement to that effect.
It does not depend upon the fortune of the case whether it be good
or bad, but upon the skill, diligence and attention bestowed. For,
as a general rule, a physician does not guarantee the success of his
treatment; he knows that that depends upon a higher power. Still, some
good must have resulted from his efforts. The rule appears to be that
if there has been no beneficial service there shall be no pay; but if
some benefit has been derived, though not to the extent expected, this
shall go to the amount of the plaintiff’s demand, leaving the defendant
to his action for negligence [26]. The practitioner must be prepared to
show that his work was properly done, if that be disputed, in order
to prove that he is entitled to his reward [27]. Where the surgical
implements employed in amputating an arm were a large butcher knife and
a carpenter’s sash-saw, it was held that the Court rightly charged the
jury, that if the |21| operation was of service, and the patient did
well and recovered, the surgeon was entitled to compensation, though it
was not performed with the highest degree of skill, or might have been
performed more skilfully by others [28].
If a surgeon has performed an operation which might have been useful
but has merely failed in the event, he is nevertheless, entitled
to charge; but, if it could not have been useful in any event, he
will have no claim on the patient [29]. A medical man who has made a
patient undergo a course of treatment which plainly could be of no
service, cannot make it a subject of charge; but an apothecary who has
simply administered medicines under the direction of a physician may
recover for the same, however improper they may have been [30]. If the
physician has employed the ordinary degree of skill required of one in
his profession, and has applied remedies fitted to the complaint and
calculated to do good in general, he is entitled to his fees, although
he may have failed in this particular instance, such failure being then
attributable to some vice or peculiarity in the constitution of the
patient, for which the medical man is not responsible [31].
It is the duty of a physician who is attending a patient infected
with a contagious disease, when called upon to attend others not so
infected, to take all such precautionary means experience has proved to
be necessary to prevent its communication to them. When a physician who
was told by a patient not to attend any infected with small-pox or his
services would be dispensed with, failed to say that he was attending
such a patient, and |22| promised not to do so, but continued to
attend, and did by want of proper care communicate small-pox to the
plaintiff and his family, it was held that these facts were proper
evidence to go to the jury in reduction of damages in an action for
his account, and that the physician was responsible in damages for the
suffering, loss of time and damage to which the plaintiff may have been
subjected. If a physician by communicating an infectious disease has
rendered a prolonged attendance necessary, thereby increasing his bill,
he cannot recover for such additional services necessitated by his own
want of care [32]. This rule will apply with equal force to puerperal
fever [33].
In the case of vaccination, the physician, while he does not guarantee
the specific value of the vaccine virus, yet guarantees its freshness;
so that if he inoculate a patient with virus in an altered state,
constituting as it then would mere putrid animal matter, and erysipelas
or any injury to any limb necessitating amputation should arise, he
will undoubtedly be held responsible for the suffering, loss of time,
and permanent injury to the patient [34]. Long since Lord Kenyon was of
the opinion that if a surgeon was sent for to extract a thorn, which
might be pulled out with a pair of nippers, and through his misconduct
it became necessary to amputate the limb, the surgeon could not come
into a court of justice to recover fees for the cure of the wound which
he himself had caused [35].
The physician when sending in his bill should be specific in his
charges and not general; he should give the number of visits and dates.
In one case a lump charge of “$13 for medicine and attendance on one
of the general’s daughters |23| in curing the whooping cough,” being
objected to by the valiant officer, was held by the Court to be too
loose to sustain an action [36]. Where a practitioner brought an action
for a bill consisting of a great number of items, and gave evidence as
to some of them only, and the jury gave a verdict for the whole amount
of the bill, the Court refused to interfere and grant a new trial
because every item was not proved [37]. Where a medical man delivered
his bill to a patient without a specific charge, leaving a blank for
his attendance, the Court inferred that he considered his demand in
the light of a “_quiddam honorarium_,” (this was before the Medical
Act), and intended to leave it to the generosity of the patient, and
the latter having paid into court a certain amount, the Court held
the surgeon was bound by the amount so paid and could not recover any
more [38]. As a rule, however, if a doctor’s bill is not paid when
presented he is not limited by it to the amount of his claim, if he
can show that his services were of greater value [39]. When witnesses
are called to speak as to the value of the practitioner’s services the
Courts generally incline towards the lowest estimate [40].
The number of visits required must depend on each particular case, and
the physician is deemed the best and proper judge of the necessity
of frequent visits; and in the absence of proof to the contrary, the
Court will presume that all the professional visits made were deemed
necessary and were properly made [41]. There must not be too many
_consultations_; and the physician called in for consultation or to
perform an operation may recover his fees from the |24| patient,
notwithstanding that the attending practitioner summoned him for his
own benefit and had arranged with the patient that he himself would
pay [42].
Where a medical man has attended as a friend, he cannot charge for
his visits. This was held in one case where it was proved that
the practitioner had attended the patient as a friend, upon the
understanding that he was to have refreshments and dinners free
of charge; and in another case, where a medical man had attended
professionally, for several years, a lady with whom he was on terms of
intimacy (but received no fees, except once, when he had prescribed
for her servant). The day before her death this lady had written to
her executors, asking them to remunerate the doctor in a handsome
manner, and moreover in her will she gave him a legacy of £3,000 and a
reversionary interest in £6000 more. It was proved that he had attended
others without having taken fees or sent in bills. It was held that
his services had been tendered as for a friend, and accepted as a
friends, and his demand as a debt against the assets of the lady was
rejected [43]. One would have thought that the physician in this latter
case should have been satisfied.
Where a tariff of fees has been prepared, and agreed to by the
physicians in any locality, they are bound by it legally as far
as the public is concerned, morally as far as they themselves are
concerned [44]. It is no part of the physicians business to supply the
patient with drugs; if he does so he has a right to be reimbursed
therefor [45]. |25|
If a physician enters into a special contract to perform a cure he
will be held strictly to its terms, nor will he be allowed to plead
circumstances, which, under the general law of professional obligation,
might fairly exonerate him from blame, for failing of success in the
treatment of his patient. To promise an absolute cure is to assume
arrogantly the possession of powers never delegated to man; only a weak
and vapid intellect will commit so egregious a blunder. Yet, if a man
choose to do it he may, and having entered into an _express_ contract
he will be held liable for its fulfilment. For it is his own fault if
he undertake a thing above his strength. If the agreement is, no cure,
no pay: he cannot even recover for medicines supplied if the cure is
not effected. At least, so it was held at Vermont. Contracts to receive
a certain sum contingent upon the performance of a cure have always
been considered as professionally immoral, and in the civil law were
repudiated as against public policy [46].
The physician is always allowed discretionary powers over the patient
entrusted to his care in modes of treatment, so as to be able to alter
them according to the varying necessities of the case. Unless such
change of treatment involves a risk of life or consequences of which he
is unwilling to assume the responsibility, he is not under obligation
to give notice or obtain permission before making it. Particularly is
this the case where the patient is not at home or among friends or
relatives, but is in some degree in his custody and under his exclusive
supervision, as well as care. In such circumstances he is authorised
to perform operations, or change his treatment, or enforce discipline
essential to its fulfilment, without first consulting or obtaining
permission from friends or guardians at a distance, since delay might
involve a greater risk to the health |26| and possibly the life of
the patient than would a necessitated operation; and of such things he
alone is the proper, as he alone can be the best, judge. He may recover
his fees for such operation or change of treatment without proving
that it was necessary or proper, or that before he performed it he
gave notice to the party who had to pay, or that it would have been
dangerous to have waited until such notice had been given. The burden
of proving unskilfulness or carelessness in the operation lies upon the
party objecting to it [47].
When a medical man is called as a witness before a court, to testify as
to facts within his knowledge, he must attend and give evidence upon
payment of the same fees as other witnesses are entitled to; unless it
is otherwise provided by statute.
Where a statute provides that a medical man should be paid a certain
witness fee, he is entitled to that fee although he be not called to
give professional evidence, and it is not necessary to prove that
he is in practice [48]. A witness should be paid his fees when he is
subpœnaed; but even if he attends he can refuse to give evidence until
he is paid, unless he takes the oath before making the objection [49]. A
subpœna should be served a reasonable time before the trial, to enable
a witness to put his affairs in such order that his attendance on the
court may be as little detrimental as possible to his interests [50].
Where a medical man is summoned to attend a coroner’s inquest, unless
the statute law is clearly to the contrary, |27| he is only entitled
to be paid for each days attendance, not for each body on which the
inquest was held [51].
Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the
deceased was attended during his last illness, or at his death, by a
duly qualified medical man, may summon that medical man to attend the
inquest; if he finds that he was not so attended, he may summons any
legally qualified neighbouring practitioner, and may direct him to
hold a post-mortem examination; but a second practitioner will not be
entitled to any fees, unless a majority of the jury have, in writing,
asked him to be called [52]. The fees are, for attendance without
_post-mortem_ $5, if with _post-mortem_, without an analysis of the
contents of the stomach or intestines, $10; if with such analysis, $20;
together with a mileage each way of twenty cents. If the practitioner
when duly summoned fails to attend, without sufficient reason, he is
liable to a penalty of $40 [53].
Is an expert witness entitled to receive greater compensation than
an ordinary witness? or can he be compelled to give a professional
opinion without being paid for it? The States of Iowa, North Carolina
and Rhode Island have answered these questions by statutes which say
such witnesses shall be entitled to extra compensation to be fixed
by the court, in its discretion: while Indiana says experts may be
compelled to appear and testify to opinions without payment or tender
of compensation other than the _per diem_ and mileage allowed by law to
other witnesses [54].
The subject does not appear to have been very much considered in
England. In a case, at _Nisi Prius_, Lord |28| Campbell declared that
an expert was not bound to attend upon being served with a subpœna,
and that he ought not to be subpœnaed; that he could not be compelled
to attend to speak merely to matters of opinion [55]. And Mr. Justice
Maule, where an expert demanded additional compensation, said there
was a distinction between a witness to facts and a witness selected by
a party to give his opinion on a subject with which he is peculiarly
conversant from his employment in life. The former is bound as a matter
of public duty to testify as to all facts within his knowledge, the
latter is under no such obligation, and the party who selects him must
pay him for his time before he will be compelled to give evidence [56].
Worden, J., of the Supreme Court of Indiana, in considering the
question, in a case that came up prior to the statute above referred
to, reviewed most of the American decisions and the opinions of
the text writers, and concluded “that physicians and surgeons,
whose opinions are valuable to them as a source of their income and
livelihood, cannot be compelled to perform service by giving such
opinions in a court of justice without payment.” The Court further
said, “It would seem, on general principles, that the knowledge and
learning of a physician should be regarded as his property, which
ought not to be extorted from him in the form of opinions without just
compensation.” “If the professional services of a lawyer cannot be
required in a civil or criminal case without compensation, how can
the professional services of a physician be thus required? Is not his
medical knowledge his capital stock? Are his professional services
more at the mercy of the public than the services of a lawyer? When
a physician testifies as an expert by giving his opinion, he is
performing a strictly |29| professional service. * * * The position
of a medical witness testifying as an expert is much more like that
of a lawyer than that of an ordinary witness testifying to facts. The
purpose of this service is not to prove facts in the cause, but to
aid the Court or Jury in arriving at a proper conclusion from facts
otherwise proved” [57]. In an earlier case (in 1854), in Massachusetts,
the Court said, “to compel a person to attend because he is
accomplished in a particular science, art or profession, would subject
the same individual to be called upon in every case in which any
question in his department of knowledge is to be solved. Thus, the most
eminent physician might be compelled, merely for the ordinary witness
fees, to attend from the remotest part of the district, and give his
opinion in every trial in which a medical question should arise. This
is so unreasonable that nothing but necessity can justify it” [58].
On a trial for murder the prosecution had procured the attendance of
Dr. Hammond to testify professionally, and had agreed to give him
$500 as his fee. This fee was complained of as an irregularity, but
the Court in delivering judgment remarked, “The district attorney,
it is true, might have required the attendance of Dr. H. on subpœna,
but that would not have sufficed to qualify him as an expert with
clearness and certainty upon the questions involved. He would have met
the requirements of the subpœna if he had appeared in court when he
was required to testify and given impromptu answers to such questions
as might have been put to him. He could not have been required, under
process of subpœna, to examine the case, and to have used his skill
and knowledge to enable him to give an opinion upon any points of the
case, nor to have attended during the whole trial and attentively
considered and carefully |30| heard all the testimony given on both
sides, in order to qualify him to give a deliberate opinion upon such
testimony, as an expert, in respect to the question of the sanity of
the prisoner;” and held “that there was no irregularity in the payment
of such a fee” [59].
Such text writers of high repute as Taylor, Phillips, Redfield and
Ordronaux, all agree that an expert cannot be compelled to give
professional opinions without proper remuneration. The last named
writer says, “Where a subpœna is served upon an expert he must obey it,
if within the range of physical possibility. But once on the stand as a
skilled witness his obligation to the public ceases, and he stands in
the position of any professional man consulted in relation to a subject
upon which his opinion is sought. He cannot be compelled to bestow
his skill and professional experience gratuitously; whoever calls for
an opinion from him in chief must pay him, and the expert may decline
to answer until the party calling him has paid. When he has given his
evidence he cannot decline repeating it, or explaining it. A similar
rule will, by parity of reasoning, apply to personal services demanded
from the expert, as well as to opinions asked” [60].
On the other hand, the Supreme Court of Alabama, in 1875 [61], confirmed
a fine imposed upon a physician for refusing to state the nature and
character of a wound received by a man and its probable effect, upon
the ground that he had not been remunerated for his professional
opinion, nor had compensation for it been promised or secured. And
the Court of Appeals in Texas, in 1879, held, that the court could
compel a physician to testify as to the |31| result of a post-mortem
examination; adding, that a medical expert could not be compelled to
make a post-mortem examination unless paid for it, but an examination
having already been made by him he could be obliged to disclose the
results thereof [62].
The result of the authorities seems to be that, without the aid of
a statute, an expert cannot be compelled to bestow his skill and
professional experience gratuitously upon any party, for his skill and
experience are his individual capital and property.
|32|
CHAPTER III.
WHO SHOULD PAY THE DOCTOR.
If Smith says to Brown, a medical man, “Attend upon Robinson, and if
he does not pay you I will;” that being a promise to answer for a debt
of Robinson’s, for which he is also liable, the guarantee is only a
collateral undertaking, and, under the Statute of Frauds, must be in
writing and signed by Smith, or some other person thereunto by him
lawfully authorised, in order to be binding upon him. But if Smith says
to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson,
and charge your bill to me,” or “I will pay you for your attendance
upon Robinson;” then the whole credit being given to Smith, no written
agreement is necessary to enable the doctor to recover the amount of
his account from him, since it is absolutely the debt of Smith [63].
Where a person calls at the office of a physician, and, he being
absent, the visitor leaves his business card with these words written
on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the
clerk in attendance, with the request that he would give it to the
doctor and tell him to go as soon as possible; this caller becomes
liable to pay the doctor’s bill for attendance upon Mrs. Jones in
pursuance of such message. Yet Mrs. Jones, if a widow, may also be
liable; for one who acquiesces in the employment of a physician, and
implies, by his or her conduct, that the doctor is attending at his or
her request, is responsible for |33| the value of his services. If
Mrs. Jones is living with her husband, or, without her fault, away from
him, the doctor has still another string to his bow, and may recover
the amount of his bill from Mr. Jones; for the rule is, that a husband
must pay his wife’s doctor’s bills. Of course the doctor cannot make
all three pay [64].
Long since, Park, J., was clearly of the opinion that if a mere
stranger directed a surgeon to attend a poor man, such person was
clearly liable to pay the surgeon [65]. Yet, in some cases in the United
States, it has been held that the man who merely calls the doctor is
not bound to pay him. When, for instance, in Pennsylvania, a son of
full age, when living with his father, fell sick, and the father went
for the doctor, urging him to visit his son. Afterwards the physician
sued the parent. The Court said this was wrong, that he should have
sued the son, as the father went as a messenger only, that the son,
who had the benefit of the services, was the responsible person; and
remarked that it was clear that had the defendant been a stranger,
however urgent he may have been and whatever opinions the physician
may have formed as to his liability, he would not have been chargeable
without an express promise to pay, as, for instance, in the case of an
inn-keeper or any other individual whose guest may receive the aid of
medical service. A different principle, the Court considered, would be
very pernicious, as but very few would be willing to run the risk of
calling in the aid of a physician where the patient was a stranger or
of doubtful ability to pay. This was in 1835 [66]. And, in Vermont, one
brother took another, who was insane, to a private lunatic asylum and
asked that he (the insane one), might be taken in and |34| cared for.
This was done. In course of time the doctor sued the sane one for his
bill, but the Court would not aid him in the matter, saying, “He is not
liable unless he promised to pay” [67].
In the case of Mr. Dodge, above referred to, the Court said, “He might
very readily have screened himself from all liability, by simply
writing the memorandum on a blank card, or by adding to that which he
wrote on his own card something that would have apprised the doctor of
the fact that he acted in the matter for Mrs. Jones, as her agent.”
The reporter did not approve of this decision, and so appended the
following graphic note: “Let us see how this thing works. We will
take as an illustration an almost every-day occurrence arising in the
country. A. B. is taken suddenly and seriously ill in the night time,
and sends to his neighbour, C. D. living in the next house to his, to
have him go after the doctor as soon as he can, for he is in great
pain and distress. C. D. jumps out of bed without hesitation, and
hastily dresses himself, and goes out to his barn and takes a horse
from the stable, and not waiting to put on a saddle or bridle, jumps
on to the horse with the halter only, puts him at full speed for the
doctor’s office, some two or three miles distant. On arriving there
he finds the doctor absent from home, but his clerk is there, and C.
D. at once says, ‘Tell the doctor to call on A. B. who has been taken
suddenly sick; tell him to come as soon as possible.’ In accordance
with this message the doctor calls upon A. B., and prescribes for and
attends him professionally for several days. After a reasonable time
the doctor sends in his bill to A. B. and it not being paid as soon
as the doctor desires, he calls on C. D. and requests him to pay the
bill. C. D. with perfect astonishment, asks why he is to pay. |35| The
doctor informs him that he made himself liable to pay the bill because,
when he delivered the message, he did not tell the clerk that he came
for the doctor by the request of A. B. nor that he acted as agent of
A. B. in delivering his message. Well, says C. D. the fact was I did
go at the request of A. B. and merely acted as his agent in delivering
the message, and I will swear to these facts if necessary. The doctor
insists that it will do him no good if he should give such testimony,
for the law is settled on that point, as just such a case has recently
been decided in New York under just such a state of facts, where the
jury, in the justice court, found a verdict for the doctor for the
amount of his bill, and, on appeal by the defendant to the general
term of the New York Common Pleas, that court unanimously sustained
the verdict of the jury, and affirmed the judgment of the court below.
Well, says C. D. ‘If that is the law I think I will wait awhile before
I go after a doctor again as an act of neighbourly kindness.’” This
case was decided as late as March, 1873.
A wife has implied authority to bind her husband for reasonable expense
incurred in obtaining medicines and medical attendance during illness;
but this implied authority is put an end to if she commits adultery
while living apart from her husband, and there has been no subsequent
condonation; or, if she leaves her husband’s home of her own accord
and without sufficient reason, and the fact has become notorious, or
the husband has given sufficient notice that he will no longer be
responsible for any debts that she may incur [68]. If a husband turn an
innocent wife out of doors without the means of obtaining necessaries,
it is a presumption of law, which cannot be rebutted by evidence, that
she was turned out with the authority of her husband to pledge his
credit for necessaries, and in such a case |36| medical attendance
will be considered as one of the primary necessaries [69]. A married
woman’s misconduct does not exonerate the husband from paying a doctor
whom he requests to attend her [70].
Although the law requires the husband to furnish the wife with all
necessaries suitable to his condition in life, including medical
attendance in case of sickness, still it gives him the right to procure
these necessaries himself and to decide from whom and from what place
they are to come. If a physician attends a wife whom he knows to be
living separate and apart from her husband, he ought to enquire whether
she has good cause for so doing; for if she has not he cannot make
the husband pay the bill; and it has been held that it devolves upon
the doctor to show that there was sufficient cause for the wife’s
separation [71]. The employment of a physician by a husband to attend
his sick wife, presumably continues throughout the illness; and the
mere fact that the wife is removed, with the husband’s consent, from
his home to her father’s, will not enable him to resist payment of the
doctor’s bill for visits paid to her at the father’s [72].
Notwithstanding the law’s desire not to favour any particular school,
a quack’s bill was thrown out where the services were rendered without
the husband’s assent. This was done in a case where a doctor was in the
habit of putting a woman into a mesmeric sleep, she thereupon became a
clairvoyant and prescribed the medicines which the doctor furnished,
and for these he sued. The Judge said:—“The law does not recognize
the dreams, visions or revelations of a woman in mesmeric sleep as
necessaries for |37| a wife for which the husband, without his consent,
can be made to pay. These are fancy articles which those who have money
of their own to dispose of may purchase if they think proper, but they
are not necessaries known to the law for which the wife can pledge the
credit of the absent husband” [73].
In England, it was, until 1869, considered that a parent’s duty to
furnish necessaries for an infant child was a moral and not a legal
one, so that he was not liable to pay for medicines or medical aid
furnished to his child without some proof of a contract on his part
either expressed or implied. And this still is the view where the child
is over fourteen. The rule of law varies in the different States of
the Union. In most of those in which the question has come before the
courts the legal liability of the parent for necessaries furnished
to the infant is asserted, unless they are otherwise supplied by the
father; and it is put upon the ground that the moral obligation is a
legal one, and some of the courts have declared this quite strongly.
In other States the old English rule has been held to be law, and
agency and authority have been declared to be the only ground of such
liability. The authority of the infant to bind the parent for medical
aid supplied him will be inferred from very slight evidence [74]. But a
contract to pay will not be implied when the infant has been allowed a
sufficiently reasonable sum for his expenses [75]. Where the services
have been rendered with the parent’s knowledge and consent, he will
generally have to pay for them. A boy left home against his father’s
will, and refused to return at his parent’s command. Being seized with
a mortal illness he did at last come back. His father went with him to
a |38| physician to obtain medical advice, and the doctor afterwards
visited him professionally at his father’s house. No express promise
to pay was proved, nor had the father said he would not pay. The Court
held the father liable to pay the doctor’s bill [76]. And in an English
case, where a father had several of his children living at a distance
from his own house under the protection of servants, it was held that
if an accident happened to one of the children he was liable to pay for
the medical attendance on such child, although he might not know the
surgeon called in, and although the accident might have been received
through the carelessness of a servant [77].
By a recent English statute [78], when any parent shall wilfully neglect
to provide adequate food, clothing, medical aid, or lodging for his
child, in his custody, under the age of fourteen, whereby the child’s
health shall have been, or shall be likely to be, seriously injured, he
shall be guilty of an indictable offence punishable by imprisonment.
Charles Downes was the two-year-old child of a member of the sect
of Peculiar People. These people never call in medical aid or give
medicines: to do so would be contrary to their religious opinions; but
if any is sick they call in the elders of the church, who pray over
him, anointing him with oil in the name of the Lord; then they hope
for a cure, as they have thus literally complied with the directions
in the 14th and 15th verses of the 5th chapter of the Epistle of St.
James. This child was ill for months; the usual course was pursued by
his father; no medical aid was obtained, although easily obtainable.
The illness was misunderstood, and, although he was taken care of and
well supplied with food, the child died. The father was indicted for
manslaughter, and the |39| jury found that the death was caused by
the neglect to obtain medical assistance, that the father _bona fide_
(though erroneously) believed that medical aid was not required, and
that it was wrong to use it. The Judge entered a verdict of guilty, and
the Court held—under this statute—that a positive duty was imposed upon
the father to provide adequate medical aid when necessary, whatever
his conscientious scruples might be, and that that duty having been
wilfully neglected by the prisoner, and death having ensued from that
neglect, he was properly convicted of manslaughter [79].
It had been held by Pigott, B., in a case against these same Peculiar
People, and also by Willis, J., that, at common law, there was no legal
duty upon a father to employ a physician for his sick child [80].
It is not enough to shew neglect of reasonable means for preserving
or prolonging the child’s life, to convict of manslaughter, it must
be shewn that the neglect had the effect of shortening life. It will
not do merely to prove that proper medical aid might have saved or
prolonged life and would have increased the chance of recovery, but
that it might have been of no avail [81]. In this case the father,
perhaps, might have been convicted of neglect of duty as a parent,
under the statute (per Stephen, J.).
Medicines and medical aid are necessaries for which an infant may
legally contract, and for which he can render himself liable. In
Massachusetts, it was held that he would not be liable merely because
his father was poor and unable to pay [82]. |40|
A master is not bound to provide medical assistance for his servant,
but the obligation, if it exists at all, must arise from contract; nor
will such a contract be implied simply because the servant is living
under the master’s roof, nor because the illness of the servant has
arisen from an accident met with in the master’s service [83]. But
where a servant left in charge of her master’s children was made ill
by suckling one of the children, and called in a medical man to attend
her, with the knowledge and without the disapprobation of her mistress,
it was decided that the doctor could make the father and master
pay [84]. And a master is bound to provide an apprentice with proper
medicines and medical attendance [85].
In England, when a pauper meets with an accident, the parish where
it occurs is usually liable for the surgeon’s bill. If, however, the
illness of the pauper arises from any other cause than accident or
sudden calamity, the parish in which he is settled is under legal
liability to supply him with medical aid, although he may be residing
in another parish. But all these questions with regard to paupers are
determined according to the poor laws of the different countries [86].
It has frequently happened that when a railway passenger or employee
has been injured by a collision or accident, and some railway official
has called in a doctor, the company has afterwards refused to pay
the bill; and the courts have declined to make them do so, unless it
be shown that the agent or servant who summoned the medical man had
authority to do so. It has been held that neither a guard, nor the
superintendent of a station, nor the engineer of the train in which
the accident happened, had any implied authority, as incidental |41|
to their positions, to render their companies liable for medical
services so rendered [87]. The Court of Exchequer said, “It is not to
be supposed that the result of their decision will be prejudicial
to railway travellers who may happen to be injured. It will rarely
occur that the surgeon will not have a remedy against his patient,
who, if he be rich, must at all events pay; and if poor, the sufferer
will be entitled to a compensation from the company, if they by their
servants have been guilty of a breach of duty, out of which he will be
able to pay, for the surgeon’s bill is always allowed for in damages.
There will, therefore, be little mischief to the interests of the
passengers, little to the benevolent surgeons who give their services.”
But, in England, it has been decided that the general manager of a
railway company has, as incidental to his employment, authority to
bind his company for medical services bestowed upon one injured on his
railway. In Illinois, a similar decision was given as to a general
superintendent, although in New York judgment was given the other
way [88].
If an accident happen to a stage coach by which a passenger’s leg is
broken, or his human form divine is otherwise injured, the coachman has
no authority to bind his master by a contract with a surgeon to attend
to the injury; nor if a lamp-lighter, by neglect, burn any person, has
he, or any officers of the gas company, power to bind the company by a
contract for the cure of the injured person [89]. If ordinary employees
had such authority, then every servant who, by his negligence or
misconduct, had caused injury to an individual, would have an implied
authority to employ, on behalf and at the expense of his employer, any
person he thought fit to remedy the mischief.
|42|
CHAPTER IV.
WHO MAY PRACTISE.
The law has nothing to do with the merits of particular systems or
schools of medicine. Their relative merits 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 it is essentially progressive
in its nature. 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 ascendancy
over both was obtained by 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 |43|
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. * * * It is not to be
overlooked that as an art it has been characterised 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 * * * a radical and
fundamental difference divides the allopathists from the followers
of Hahnemann, to say nothing of those who believe in the sovereign
instrumentality. * * * The axiom that doctors differ is as true now as
ever it was [90]. Thus spake Daly, J.; the reporter observes in a note:
“It may, perhaps, be safely questioned whether the sister sciences of
law and theology present any such unity or certainty of opinion as
might enable them to arraign the medical profession.”
In Great Britain and Ireland, since the passing of the Medical Act
of 1858, every one registered under the provisions of that Act is
entitled, according to his qualification, to practise medicine or
surgery, or both (as the case may be), in any part of Her Majesty’s
Dominions, and to recover on any court of law (should any patient
neglect to pay) his reasonable charges for professional aid, advice and
visits, and the costs of any medicine, or other medical or surgical
appliances rendered or supplied by |44| him to his patient; but any
one not so registered cannot recover any such charges in any court of
law. Proof of registration is absolutely necessary for a recovery;
but it will suffice if the registration has taken place before the
trial [91].
And as to who may be registered; the Act says any one may be who is a
fellow, member, licentiate, or extra licentiate, of the Royal College
of Physicians of London, or of the Royal College of Physicians of
Edinburgh, or of the King and Queen’s College of Ireland; or fellow,
member, or licentiate in midwifery, of the Royal College of Surgeons
of England, or fellow or licentiate of the Royal College of Surgeons
of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow,
or of the Society of Apothecaries, London, or of the Apothecaries
Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any
university of the United Kingdom, or licentiate in surgery of any
university in Ireland; or doctor of medicine by doctorate granted prior
to August, 1858, by the Archbishop of Canterbury; or doctor of medicine
of any foreign or colonial college, after examination, or who satisfies
the Council of Education and Registration that there is sufficient
reason for admitting him to be registered [92].
In France, the medical profession is divided into two grades; in the
higher grade are all doctors of medicine of the universities; those
in the lower grade are _officiers de santé_. In Germany, the right
to practise is conferred by a state licence granted on passing the
_staats-examen_: the degree of doctor of medicine is almost always
taken at some university after obtaining the state license. In Austria,
the |45| right to practise is carried by the degree of doctor of
medicine obtained from a university [93].
The legislature of every colony of Great Britain has full power to
make laws for the purpose of enforcing the registration within its
jurisdiction of medical practitioners, including those registered under
the Imperial Act.
In Ontario, the medical profession is incorporated under the name and
style of “The College of Physicians and Surgeons of Ontario,” and
every person registered under the provisions of the Ontario Medical
Act [94] is a member of the college. There is a “Council,” in part
appointed by certain educational institutions, in part elected by
practitioners. This council fixes the curriculum of studies, appoints
examiners, and arranges the examinations of those desirous of admission
to practise; it also arranges for the registration of those who pass
the examinations, or had certain qualifications before July, 1870.
Every one who passes the examinations and has complied with the rules
and regulations of the council, and paid his fees, is entitled to
registration, and by virtue thereof to practise medicine, surgery and
midwifery in the Province. If registration is not granted to one he may
compel it by a writ of mandamus [95].
Registration is essential to entitle a practitioner to recover
any charges for medical or surgical advice, or for attendance, or
for performance of any operation, or for any medicine he may have
prescribed or supplied. (This last clause does not apply to any
licensed chemist or druggist.) And if any one unregistered, for hire,
gain or hope of reward, practises or professes to practise medicine,
surgery or midwifery, or advertises to give advice therein, he is
liable |46| to a fine of from $25 to $100. And any one 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 that
he is recognized by law as a physician, surgeon, accoucheur, or a
licentiate in medicine, surgery or midwifery, is liable to the same
penalty. Any person who wilfully or falsely pretends to be a physician,
doctor of medicine, surgeon, or general practitioner, or assumes any
title, addition or description, other than he actually possesses and
is legally entitled to, is liable to a fine of from $10 to $50. But it
is not punishable to practise for love or charity, and any one who has
the degree of doctor of medicine may place the letters “M.D.” after his
name, even though he is not a registered practitioner, if he do not act
as such for hire or gain [96].
Where one partner was registered and the other was not, and there was
painted on the sign after the name of the first “M.D., M. C. P. &
S., Ont.,” and after the name of the other only “M.D.,” it was held
that the use of the simple letters “M.D.,” in contradistinction to
the full titles of the partner on the same sign was not the use of a
title “calculated to lead people to infer registration,” and that the
unregistered partner was not guilty of an offence under the act [97].
In Ontario, provision is made for the registration of Homœopathists
as well as of regular practitioners, and for the Eclectics who were
practising in the Province for six years before 1874.
A physician practising in another country, and performing medical
services for a patient then residing there, may recover his fees in
this Province notwithstanding he is not |47| registered [98]. A medical
practitioner duly registered in England, under the Imperial Act, is
entitled in Ontario to registration upon payment of fees without
examination [99].
In the United States, the common law doctrine, which favours the right
of every man to practise in any profession or business in which he is
competent, prevails to a great extent; and medicine being regarded by
it as an honorific profession, no apprenticeship was required, but
the practitioner always prescribed at his peril. This was also the
doctrine of the civil law, which drew no barriers around either law or
medicine. Any one who pleased might practise them without any previous
qualification; subject always to responsibility for injury inflicted
upon others.
In the absence of any statutes, therefore, limiting the common law
right to practise medicine inherent in every person, the term physician
may there be applied to any one who publicly announces himself to be
a practitioner of the art and undertakes to treat the sick, either
for or without reward. The common law knows nothing of systems or
schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical,
Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer
Doctor, Indianopathist, Clairvoyant Doctor and regular physician are
alike. The scales of justice are no more affected by the large doses of
the allopathist than by the infinitesimal supplies of the homœopathist.
But the law will sometimes interfere where one not pretending to be
a practising physician uses a peculiar system in his own family. A
father, during the sickness of his children and wife, refused to
provide any medical treatment, except that applied by himself, called
the Baunscheidt system, which consists in pricking the skin of the
patient in different parts of the body with an instrument armed with
|48| a number of needles and operated by a spring, and then rubbing
the parts affected with an irritating oil. The wife and three children
had died within a month. The man practised the exanthematic treatment
upon them, but did not even call in physicians who used that mode.
The Superior Court of Pennsylvania deprived this believer in the
Baunscheidt panacea of the custody of his surviving children [100].
Before the common law every one undertaking to treat the sick
professionally, and as the exercise of his vocation, is legally a
physician. He has the rights of one, and when he assumes those rights
the law lays upon him the heavy burdens and responsibilities of the
profession. It is, of course, far otherwise if any statute prescribes
particular qualifications for the practice of the profession and one
undertakes to discharge its duties without such qualifications. Then
he is doubly a wrong-doer; first, as against the statute; and, second,
as against the public, who have a right to demand in him the ordinary
proficiency of his profession [101].
In Arkansas, California, Connecticut, Kentucky, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and
Vermont, there appear to be no statutory requirements regulating the
practice of physicians or surgeons. In Virginia, the practitioner
only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine,
Minnesota, Ohio and Wisconsin, a practitioner must either have a
license from a medical board or society, constituted according to
the law of the respective States, or else be a graduate of a medical
college. In South Carolina and the District of Columbia, he must be
licensed by the medical board; so, too, in Delaware. But this rule
in Delaware does not apply to those who practise exclusively the
|49| Thompsonian or botanic, or homœopathic systems; or practise
gratuitously or for what is willingly given them.
In New York State, early in the century, it was enacted that no one
practising physic or surgery, without a license, could collect any
debts incurred by such practice, and it was a penal offence so to
practise. In 1830, the unauthorized practice of physic or surgery
was made a misdemeanor punishable by fine or imprisonment, or both.
Shortly afterwards the offence was made penal instead of criminal,
and it was declared the provisions should not extend to any one using
or applying for the benefit of any sick person any roots, barks, or
herbs, the growth or produce of the United States. In 1844, all laws
limiting the right to practise medicine or surgery were repealed; free
trade in physic prevailed; all examinations, certificates and licenses
were declared unnecessary; the repealing Act expressly permitted any
person to practise physic subject to punishment, as for a misdemeanor,
if he should be convicted of gross ignorance, malpractice, or immoral
conduct. However, a change came, and, in 1874, the legislature declared
that it was “a misdemeanor for any person to practise medicine or
surgery in the State of New York, unless authorized so to do by a
license or diploma from some chartered school, State board of medical
examiners, or medical society,” or to practise under cover of a medical
diploma illegally obtained. The penalty for the first offence is a fine
of not more than $200; for a subsequent offence a fine of from $100 to
$500, or imprisonment for not less than thirty days, or both [102]. In
1880, it was further enacted that no person shall “practise physic
or surgery within the State unless he is twenty-one years of age, and
has been heretofore authorized so to do pursuant to the laws in force
at the time of his authorization, or is hereafter authorized so to do,
either by license from the regents of the University of the State |50|
of New York, a diploma of an incorporated medical college within the
State, or of one without the State approved of by some proper medical
faculty within the State.” Every physician or surgeon, except those who
had been practising ten years before 1880 (and a few others), had to
register with the clerk of the county, where he practised, his name,
residence, place of birth, together with his authority to practise.
After the repeal of the old Medical Acts, and before the enactment
of the law of 1874, the New York Court of Common Pleas had to define
who was a physician or doctor, and it said the words simply meant,
“a person who made it his business to practise physic; and it was
wholly immaterial to what school of medicine he belonged, or whether
he belonged to any. The legal signification of the term doctor means
simply a practitioner of physic. The system pursued is immaterial.
The law has nothing to do with the merits of particular systems.” The
point came up in considering a case where an agreement of employment
between an opera director and a vocalist provided for the forfeiture of
a month’s salary in case the latter should fail to attend at any stated
performance, except in the case of sickness, certified to by a doctor
to be appointed by the director. The director appointed Dr. Quin, an
homœopathist. Signor Corsi, the baritone, had a bad cold and a sore
throat, but would not consult Dr. Quin, and proffered a certificate of
an allopathist of his own choosing. This Max Maretzek would not take,
and he refused to pay Corsi his salary. The singer sued, but the Court
held that the provision was binding upon the artist, although the
director had appointed a person in the practice of what is known as the
homœopathic system of medicine. * * * The Court considered it was error
to attempt in the then present state of medical science to recognize as
a matter of law any one system of practice, or to declare that the |51|
practitioner who follows a particular system is a doctor, and that one
who pursues a different method is not [103].
It has been held, however, that where a “regular physician” is spoken
of, an allopathic is meant [104].
In Iowa, the Court said, “As yet there is no particular system of
medicine established or favoured by the laws of Iowa, and as no
system is upheld none is prohibited. The regular, the botanic, the
homœopathic, the hydropathic and other modes are alike unprohibited.
Though the regular system has been advancing as a science for
centuries, aided by research and experiment, by experience and skill,
still the law regards it with no partiality or distinguishing favour,
nor is it recognized as the exclusive standard or test by which the
other systems are to be adjudged” [105].
Notwithstanding the New York law of 1874, one can undertake to effect
cures by manipulation without possessing a diploma. He may even
maintain an action for the compensation agreed upon, although not a
graduate and having no license to practise. A man professed to cure
by rubbing, kneading and pressing the body. The court considered his
system was rather one of nursing than of either medicine or surgery,
and that it could not result in any injury to the person practised
upon than that of possible financial loss [106]. Yet, in Maine, where
a license is required, even a “medical clairvoyant” was held to come
within the statute, and it was decided that he could not render his
professional services without having the legal permission. In England,
an unregistered person sued to recover his charges for galvanic
operations, and for materials and electric fluid used therein. The jury
decided in favour of the galvanizer, and the court |52| would not
disturb the verdict, as the work was done before the Act of 1858 came
into operation, but expressed a strong opinion that if the work had not
been done when it was, it would have been impossible to hold that the
case did not fall within the statute [107].
A physician must practise according to the principles of his school.
There are distinct and different schools of practice; allopathic or old
school, homœopathic, Thompsonian, hydropathic or water cure; and if a
physician of one of those schools is called in, his treatment is to be
tested by the general doctrines of his school, not by those of other
schools. It is presumed that patient and physician both understand
this [108].
A person professing to follow one system of medical treatment cannot
be expected by his employer to practise another. While the regular
physician is expected to follow the rules of the old school in the art
of curing, the botanic physician must be equally expected to adhere to
his adopted method. While on the part of every medical practitioner the
law implies an undertaking that he will use an ordinary degree of care
and skill in medical operations, and he is unquestionably liable for
gross carelessness or unskilfulness in the management of his patients,
still the person who employs a botanic practitioner has no right to
expect the same kind of treatment or the same kind of medicine that
a regular physician would administer. The law does not require a man
to accomplish more than he undertakes, nor in a different manner from
what he professes. So, if one is employed as a botanic physician, and
performs his services with ordinary care and skill, in accordance
with the system he professes to follow, that will be regarded as a
legal defence to a suit for malpractice. It would show a full |53|
compliance with his profession and undertaking, and if injury resulted
to the plaintiff he could blame no one but himself [109].
If a patient has not been deluded by any but himself, and voluntarily
employs in one art a man who openly exercises another, his folly has no
claim to indulgence. The old Mahomedan case, cited by Puffendorf with
approbation, is very much to the point. A man who had a disorder in his
eyes called on a farrier for a remedy. This worthy gave him a remedy
commonly used by his quadrupedal patients. The man lost his sight, and
brought an action against the farrier for damages; but the Judge said
that no action would lie, for, if the complainant had not himself been
an ass, he would never have employed a horse doctor. But when a case,
the converse of this, came up, the Court remarked that, “stock and the
human family are animals with many similitudes and some variances;
so that, although it be admitted that one acquainted with the mode
of treating diseases of the human family should not be relied on to
select from the materia medica substances apt for the treatment of
stock, still we think it clear that one having a scientific knowledge
of the diseases of men must be presumed to have so much knowledge of
the diseases of a mule as to enable him to determine whether a disease
with which the animal is afflicted be of recent or long standing. An
expert in the diseases of man is necessarily an expert in the diseases
of animals, so as to make his opinion competent evidence upon a matter
in reference to which he will swear that his scientific knowledge has
enabled him to form an opinion.” And so a physician was allowed to give
his opinion as to whether the disease with which a mule was afflicted
was, or was not, of long standing, as he considered himself competent
so to do from his knowledge |54| of the diseases to which human flesh
is heir, although he knew nothing in particular about the diseases of
stock [110].
As one who employs a homœopathic or botanic physician knowingly cannot
object to his bill because he was not treated in the way usual among
orthodox practitioners; so, on the other hand, if a physician of one
school is employed by one who has a _penchant_ for that particular
system, and treats his patient according to a different system, he
cannot recover for his services if he fail to benefit the patient [111].
Proof that one practises physic is _prima facie_ evidence of his
professional character; and if one holds himself out as a physician and
surgeon, and acts as such, the law will hold him liable as such [112].
A physician who merely casually makes up a prescription for a friend
when meeting him upon the street, cannot be called his medical
attendant; that term means one to whose care a sick person has been
confided [113].
|55|
CHAPTER V.
NEGLIGENCE AND MALPRACTICE.
Malpractice, or _mala praxis_, may be defined to be an improper
discharge of professional duties, either through want of skill or
negligence. It is now more particularly applied to torts—when committed
by a physician, surgeon, or apothecary.
It is a great misdemeanor and offence at common law, whether it arise
from curiosity and experiment, or from neglect; because it breaks the
trust which the party has placed in the physician, tending directly to
his destruction [114]. A medical man who is guilty of gross negligence,
or evinces a gross ignorance of his profession, is criminally
responsible for the consequences. And one who, by a culpable want of
care and attention, or by the absence of a competent degree of skill
and knowledge, causes injury to a patient, is liable to a civil action
for damages; unless, indeed, such injury be the immediate result of
intervening negligence on the part of the patient himself; or unless
such patient has by his own carelessness directly conduced to such
injury [115].
It is sometimes difficult to distinguish between civil and criminal
malpractice, or to say when one is criminally, and when only civilly
responsible. But it may be said generally, that to constitute criminal
liability there must be such a |56| degree of complete negligence in
the practice as the law means by the word felonious [116].
There may be malpractice by commission, _i. e._, from the want of
ordinary skill in the discharge of professional duties; or malpractice
by omission, _i. e._, from negligence in the discharge of such duties.
The question, “Was there negligence?” will be answered from the stand
point of the law, not from that of medicine, when a matter comes to be
judicially investigated. The law as applicable to other professions
and occupations will be applied to the medical or surgical case under
consideration.
Strictly speaking, the term _negligence_ is limited in its application
to carelessness in the performance of professional duty; _carelessness_
is its proper synonyme. Duties performed without care, caution,
attention, diligence, skill, prudence, or judgment, are negligently
performed. Acts are so designated which are performed by one
heedlessly, even when there is no purpose to omit the performance of
duty. It is _non-feasance_, not malfeasance. It is the omitting to do,
and not the ill-doing—it is the leaving undone what one ought to have
done—not the doing what one ought not to have done—this last being a
want of skill. In its various degrees it ranges between simple accident
and actual fraud, the latter beginning where negligence ends [117].
Wharton, after criticising various definitions, proposes this,
“Negligence, in its civil relations, is such an inadvertent
imperfection, by a responsible human agent, in the discharge of a legal
duty, as immediately produces, in an ordinary and natural sequence,
a damage to another” [118]. |57| Negligence, in medical practice, is
a violation of the obligation that medical men impliedly enter into
when they accept the charge of a patient; such obligation enjoins care
and caution in what they do, and in what they omit to do. A medical
man is liable as well for want of skill, as for negligence, and an
injured party may bring his action to recover for damage resulting from
ignorance and carelessness, and recover on proving that he sustained
damage from either [119].
Physicians and surgeons have specified duties imposed upon them when
they undertake the charge of a patient. Refusing to perform their part
of the implied contract will constitute negligence, and for all injury
resulting therefrom they will be held accountable. It will constitute
a tort for which the law gives damages [120]. Of course a medical man,
unless he be an officer of the Government, charged with specific duties
which he thereby violates, has a legal right to decline to take charge
of a particular case. When in charge, however, he is liable for any
negligence, whether of omission or commission, which may produce injury
to his patient. _Voluntatis est suscipere mandatum, necessitas est
consummare_ [121].
There is an implied obligation on a man holding himself out to the
community as a physician and surgeon, and practising his profession,
that he should possess the ordinary skill requisite for reasonable
success, and that he should attend to the case with due care [122].
If the patient knows of the practitioner’s want of skill, he cannot
complain of the lack of that which he knew did not exist. |58|
A surgeon does not become an actual insurer [123]; the implied contract
is not to cure, but to possess and employ in the treatment of the
case such reasonable skill and diligence as are ordinarily exercised
by thoroughly educated surgeons; and in judging of the degree of
skill and attention required, regard is to be had to the time and
place. The law implies that in the treatment of all cases which they
undertake medical men will exercise reasonable and ordinary care and
diligence; they are bound always to use their best skill and judgment
in determining the nature of the malady and the best mode of treatment,
and in all respects to do their best to secure a perfect restoration
of their patients to health and soundness. But they do not impliedly
warrant the recovery of their patients, and are not liable on account
of any failure in that respect, unless it is through some default of
their own [124]. Tindal, C.J., in summing up to the jury in an action
for improper treatment to a hand and wrist, whereby the plaintiff
lost the use of her hand, well 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 undertake, if he is a
surgeon, that he will perform a cure, nor does he undertake to use the
highest possible degree of skill. There may be persons who have higher
education and greater advantages than he has, but he undertakes to
bring a fair, reasonable and competent degree of skill.”
Wharton and Stillé thus state the law: “A physician and surgeon is
only responsible for ordinary skill, etc., and for the exercise of his
best judgment in matters of doubt. He is not accountable for a want of
the highest degree of skill [125], nor for an erroneous, though honest
conclusion, |59| according to his best light [126]. The law has no
allowance for quackery. It demands qualification in the profession
practised, not extraordinary skill such as belongs to few men of rare
genius and endowment, but that degree which ordinarily characterizes
the profession. And in determining whether the practitioner possesses
ordinary skill, regard must be had to the advanced state of the
profession at the time [127].
As to what is ordinary or reasonable skill or care, the rule has
sometimes been laid down thus favourably, “The least amount of skill
with which a fair proportion of the practitioners of a given locality
are endowed, is to be taken as the criterion by which to judge the
physician’s skill or ability” [128]. Or, as another writer puts it,
“It has been finally determined to consider the least amount of skill
compatible with a scientific knowledge of the healing art as sufficient
to predicate the existence of ordinary skill” [129]. To render a medical
man liable even civilly for negligence, or want of due care or skill,
it is not enough that there has been a less degree of skill than some
other medical man may have shown, or a less degree of care than even
he himself might have bestowed, nor is it enough that he himself
acknowledges 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 [130].
In a city there are many means of professional culture which are
inaccessible in the country. Hospitals can be walked, libraries
visited, new books and appliances bought, |60| constant intercourse
had with the greater lights of the profession. What is due diligence,
therefore, in the city, is not due diligence in the country; and what
is due diligence in the country is not due diligence in the city.
Hence, the question, in each particular case, is to be determined,
not by enquiring what would be the average diligence or skill of the
profession (which would be a thing very difficult to reach), but
what would be the diligence or skill of an honest, intelligent and
responsible practitioner in the position in which the one in question
was placed [131].
The skill required is not an _absolute_ but a _relative_ qualification;
and as such, therefore, always subordinated to whatever conventional
standard of professional proficiency we may choose to adopt. Like
morals, it may vary with times and places, or, if based upon
representative intellects, it is clear that the ideal type selected
must be one to which the majority, rather than the minority, of minds
approximate [132]. A physician, when called upon to manage a case, is
not required to apply the skill and care which could be applied by the
perfect ideal physician, for the reason that from the limitation of the
human intellect no perfect ideal physician exists in practice, and,
from the limitation of human endurance, no perfect ideal physician,
even if he existed, could watch a patient unintermittingly. But a
physician, when called upon to manage a case, is bound to exercise
the skill and vigilance which good and faithful physicians, under the
circumstances in which he is placed, would exercise. If called upon in
a country town, remote from the great centres of scientific activity,
to attend to an exceptional case which requires immediate action, he
is not liable if he does not employ those mechanisms which only a
residence in such a centre of scientific activity would enable him to
procure. On the other hand, a physician living in such a |61| centre
is liable for negligence, if, when called upon in such a case, he does
not use such mechanism, supposing its application to be advisable [133].
A physician and surgeon is bound to possess the ordinary skill,
learning and experience of his profession generally at the time in
similar localities, and with similar opportunities for experience [134].
A patient is entitled to the benefit of the increased knowledge of
the day. The physician or surgeon who assumes to exercise the healing
art is bound to be up to the improvements of the day. The standard of
ordinary skill is on the advance; and he who would not be found wanting
must apply himself with all diligence to the most accredited sources of
knowledge [135].
Sex is no excuse for negligence; there is no rule of law to the effect
that less care is required of a woman than a man. A lady physician
cannot as such claim any privilege of exemption from the care and
caution required of men, any more than a woman acting as a locomotive
engineer could be allowed to use less diligence to avoid mischief to
others than men must use. Male and female are governed by the same rule
in this respect: the rule of prudent regard for the rights of others
knows nothing of sex [136]. Inasmuch as gratuitous services are more
generally rendered by young and inexperienced physicians than by those
who are well established in their business, a presumption naturally
arises that one who renders such services is not possessed of great
skill, and was not supposed to be by the patient. This presumption may
be overcome by proof to the contrary; and the physician must be judged
by the |62| standard to which he led the patient to believe he had
attained; or, if he has done nothing to mislead his patient upon this
point, his responsibility will be measured by the degree of skill which
he is proved actually to possess [137].
It has been laid down in Maine, that physicians and surgeons who offer
themselves to the public as practitioners impliedly promise thereby
that they possess the requisite skill and knowledge to enable them to
heal such cases as they undertake with reasonable success; and that
this rule does not require the possession of the highest, or even the
average skill, knowledge and experience, but only such as will enable
them to treat the case understandingly and safely [138].
Considering how much the treatment of a case depends upon its varying
phases, which change as quickly as the shifting hues of the heavens, it
is hard for one medical man to come forward and condemn the treatment
of a brother in the profession, and to say he would have done this or
that, when probably, had he been in a position to judge of the case
from the first, he would have done no better [139].
If a physician does not bring to the treatment of an injury or of
a disease the ordinary amount of skill possessed by those in his
profession, it is immaterial how high his standing may be; if he has
skill and does not apply it he is guilty of negligence, and if he
does not have it then he is liable for the want of it. When a case of
alleged malpractice is before the court, the questions to be considered
are: Did the defendant possess the ordinary skill of persons acting as
medical men? If he did, was he chargeable in not applying it in the
treatment of the patient? Whether |63| he possessed greater skill,
or had been successful in the treatment of other patients, is wholly
immaterial. Where the point in issue is whether skill was applied in a
given case, the possession of skill without proof that it was applied
will be no defence [140].
The law punishes negligence no less than want of skill. It is
undoubtedly true that the physician is the best judge of the degree
of attention which any case requires. Nor is it in the omission to
make a given number of visits that negligence resides, but whenever
any important step in the treatment of disease is neglected, or any
important stage of it overlooked, which might have been used for the
benefit of the patient, then it may be averred that the physician has
been guilty of negligence, however assiduous he may otherwise have
been at different periods of his treatment. Skill and diligence may be
considered, therefore, as indissolubly associated, since skill judges
of the measure of diligence required and also furnishes the latter with
the eyes of observation and the hands of execution; while diligence on
her part gives cumulative power to skill, and leaves no link wanting
in the continuous train of treatment [141]. The measure of skill which
a physician is bound to exercise is not affected by his refusal of the
proffer of assistance from other medical men [142]. The Court said that
such a refusal is no more than an implied declaration of ability to
treat the case properly. By assuming and continuing the charge of the
patient, the physician is under an obligation to exercise a degree of
skill which is neither increased or diminished by such refusal.
In considering the skill and knowledge of a practitioner regard must
be had to the school to which he professes to |64| belong; and where
there is no particular system established or favoured by law, and no
system is prohibited, every physician is expected to practise according
to his professed and avowed system. A botanic physician is to be gauged
according to the botanic system, and a homœopathic physician by the
homœopathic system: so if a botanic doctor, or a homœopathist, is sued
for malpractice he may free himself from blame by showing that his
practice was according to the rules of the school which he professed
and was known to follow, and a departure from the received canons of
his system will be taken as a want of ordinary skill. But the jury is
not to judge by determining which school in their own view is best [143].
A sign or other proof that one actually practises physic or surgery
is _prima facie_ evidence of his professional character [144]. And
when a physician’s skill is at issue he may adduce evidence to prove
the existence of such general skill on his part, irrespective of the
particular case as to which the question arises; and he may show this
by the testimony of those in his profession who can speak from personal
knowledge of his practice [145].
The possession of a medical diploma is _prima facie_ of ordinary skill.
But of course it must be shown that the college from which it emanated
had authority to grant degrees in medicine [146].
If, in the absence of a medical man, a non-professional person is
called in to assist a person taken suddenly sick, such amateur is not
liable for special or slight negligence, |65| that is for the lack of
that diligence and skill belonging to a professed physician; but he
is liable for gross negligence (the _culpa lata_ of the Latinists),
that is, the lack of the diligence and skill belonging to ordinary
unprofessional persons of common sense; while, as we have seen, the
physician is liable for slight negligence (_culpa levis_), if he either
undertakes the case without the ordinary qualifications of a physician
under such circumstances, or manages it without the ordinary skill of
such a physician [147].
If a physician treats a patient without being requested so to do,
he is held to a more strict account than in ordinary cases. In one
instance, a medical man administered physic to a slave without the
owner’s consent, and the court held him responsible for all the evil
consequences which resulted [148]; and this rule is still more rigidly
enforced when the volunteer by his officiousness excludes a competent
practitioner who would have been otherwise obtainable. If one who is
not a regular medical practitioner professes to deal with the life and
health of others, he is bound to have and employ competent skill [149].
The mere fact that he renders his services gratuitously, or out of
charity, does not free the practitioner from all liability. But,
according to some authorities, the attendant in such cases is held to
a less strict accountability than when his services are based upon
an implied contract, and is liable only for gross negligence [150].
Amos, in his “Science of Law,” says, “The less the payment made in
return for diligence, the less the diligence that is expected; and if
no payment at all is made, as little diligence as possible is |66|
usually expected, though it may be that some is.” Wharton cannot accept
this doctrine from humane and other considerations [151]. And Ordronaux
says that it may be considered as a received principle of law that, a
physician, though rendering his services gratuitously, as in hospitals
or among the out-door poor, is bound to exhibit the same degree of
ordinary skill and diligence in the treatment of a patient as if he
were acting under the incentive of a consideration or prospective
reward. If he undertakes to execute the trust reposed in him, he is
bound to do it well, or else he may be compelled to respond in damages
to the party injured by his misfeasance. It is not the consideration
which constitutes the foundation of his responsibility, but the fact
that in voluntarily accepting the mandate, _spondet peritiam artis_,
indiscriminately to all. He cannot apportion medical skill or his
diligence to meet the prospective emoluments flowing out of any given
case [152].
In a criminal case, Denman, J., told the jury that it made no
difference whether a medical man was dealing with a patient or acting
as a volunteer, and dealing with a friend or with his own wife [153].
But Cockburn, C.J., in a case where a patient in a hospital sued two
surgeons for injury received from being scalded in a bath, in which
he had been placed by the nurses on the orders of the surgeons, said,
no doubt persons who went as patients into hospitals were not to be
treated with negligence; but, on the other hand, medical gentlemen
who gave their services gratuitously were not to be made liable for
negligence for which they were not personally responsible. The jury
gave a verdict in favour of the doctors [154].
If a sick man applies to one, not a physician, for |67| gratuitous
medical assistance, and this one either does not exert all his skill,
or administers improper medicine to the best of his ability, he is not
liable for damage [155].
The amount of prudence which a man must exercise in selecting a
physician, and the means to be cured, is the same that any prudent and
reasonable man would do in any other matter [156].
It is the duty of a patient to co-operate with his medical adviser, and
to conform to the necessary prescriptions; and if, under the pressure
of pain, he does not, or, if by refusing to adopt the remedies of the
physician, he frustrates the latter’s endeavours, or, if he aggravates
the case by his own misconduct, he cannot charge against the physician
the consequences due distinctively to himself; for no one can take
advantage of his own wrong. In such a case, even if the physician’s
treatment was objectionable, he can only recover nominal damages; and
if the injury was due to the patient’s fractiousness and disregard of
the doctor’s orders (the latter being judicious), no action at all will
lie [157].
In Ohio, it was held that, in an action for malpractice in the
treatment of a swollen ankle and diseased foot, the Judge had not erred
in saying to the jury, “If you find that the defendant directed the
plaintiff to observe absolute rest as a part of the treatment to his
foot, and that direction was such as a surgeon or physician of ordinary
skill would adopt or sanction, and the patient negligently failed to
observe such direction, or purposely disobeyed the same, and that such
negligence or disobedience approximately |68| contributed to the injury
of which he complains, he cannot recover in this action; although
he may prove that the defendant’s negligence and want of skill also
contributed to the injury. The injured party must not have contributed
at all.” The information given by a surgeon to his patient concerning
the nature of his malady is a circumstance that should be considered in
determining whether the patient, in disobeying the instructions of the
surgeon, was guilty of negligence or not [158].
The general doctrine of contributory negligence is this, that although
there may have been negligence on the part of the plaintiff, yet,
unless he might, by the exercise of ordinary care, have avoided the
consequence of the defendant’s negligence, he is entitled to recover;
if, by ordinary care, he might have avoided it, then he is the author
of his own wrong [159]. The rule is laid down in another case as
follows: If it be impossible to separate the injury occasioned by the
plaintiff from that occasioned by the neglect of the defendant, the
plaintiff cannot recover; if, however, they can be separated, for such
injury as the plaintiff may show thus preceded solely from the want of
ordinary skill or ordinary care of the defendant, he may recover [160].
The patient must exercise ordinary care and prudence; he is not bound
to observe the utmost possible caution. And the ordinary care required
has been defined to be that degree of care which persons of ordinary
care and prudence are accustomed to use and employ under similar
circumstances [161]. In fact the plaintiff must use his own senses [162].
Still, if he is rash and negligent, and yet the |69| physician has
been so very neglectful that ordinary care on the part of the patient
would not have prevented the unfortunate result, the plaintiff will be
entitled to recover damages [163]. So, where the doctor’s negligence is
the proximate cause of the injury, and that of the patient only the
remote cause [164]. And proximate does not mean the first or nearest in
order of time, but the first or nearest in order of cause [165].
It is to be remembered that a physician may be called to prescribe for
cases which originated in the carelessness of the patient; and though
such carelessness would remotely contribute to the injury sued for,
it would not relieve the physician from liability for his distinct
negligence and the separate injury occasioned thereby. The patient
may also, while he is under treatment, injure himself by his own
carelessness; yet he may recover of the physician, if he carelessly
or unskilfully treats him afterwards, and thus does him a distinct
injury [166]. The burden of proving that the plaintiff’s own negligence
contributed to the injury rests upon the defendant [167]. Evidence that
the patient requested the defendant to perform an operation, or do
an act, which caused the injury, does not tend to prove contributory
negligence, if the injury was not the natural result of such act
carefully performed [168].
If the patient is insane, and so incapable of co-operating with the
physician, contributory negligence is not imputable. And this inability
the physician is bound to take into account [169]. |70|
If the physician has injured the patient by his negligence, the
refusal of the patient, or his custodian, to allow an experiment,
by another physician, to repair the injury is not contributory
negligence, unless he had reasonable assurance of the success of the
experiment [170].
The practitioner is liable where a patient suffers from his want of
ordinary skill and diligence, even though the carelessness of those
nursing the patient may have aggravated the case and rendered the
ultimate condition of the patient worse than it otherwise would have
been. Although this carelessness in nursing may be proved in mitigation
of the damages sought against the physician, it will not serve to
bar the right of action [171]. And where two surgeons, who gave their
services gratuitously to the sick in a hospital, were sued by one
Perionowsky, for maltreatment there by causing him to be placed in a
bath so hot that he was scalded and injured, and it was proved that
the bath, though ordered by the defendants, was actually administered
by the nurses, and that the defendants were not present when it was
given, and that it was no part of their duty personally to superintend
such things. Cockburn, C.J., in summing up, told the jury that the
surgeons would not be liable for the neglect of the nurses unless near
enough to be aware of it and to prevent it [172]. And, in another case,
the court held that if a jury were to find that the parents of the
patient (a boy) were in charge of and nursed him during his sickness,
and that they did not obey the directions of the physician in regard to
the treatment and care of their son during such time, but disregarded
the same, and thereby contributed to the several injuries of which he
complains, he could not recover. If the injuries were |71| the result
of mutual and concurring neglect of the parties no action to recover
damages therefor will lie [173].
The medical man has ofttimes to sail between Scylla and Charybdis.
While, on the one hand, he is bound to consult the attainable
literature in his profession, and to diligently gather in, for every
case he undertakes to treat, the experience of his confreres—for in
determining what is negligence, the improvements that are constantly
taking place are always considered—at the same time he must not try new
modes or methods too readily, lest a Judge say of him, as one said in
a surgery case, “It appears from the evidence of the surgeons that it
was improper to disunite the callus without consent. This is the usage
and law of surgeons. Then it was ignorance and unskilfulness, in that
very particular, to do contrary to the rule of the profession what no
surgeon ought to have done. For anything that appears to the court,
this was the first experiment made with this new instrument; and, if
it was, it was a rash action, and he who acts rashly acts ignorantly;
and although the defendants (a surgeon and an apothecary), in general,
may be as skilful in their respective professions as any two gentlemen
in England, yet the court cannot help saying that, in this particular
case, they acted ignorantly and unskilfully, contrary to the known rule
and usage of surgeons;” (and they had to pay the plaintiff £500 for the
damage to his leg) [174]. Success is the only thing that justifies an
innovation either in politics or physic.
When it is proved that the physician has omitted altogether the
established mode of treatment, and has adopted one that has proved to
be injurious, evidence of skill, or of reputation for skill, is wholly
immaterial, except to show (what the law presumes) that he possesses
the ordinary |72| degree of skill of persons engaged in the same
profession. In such a case, it is of no consequence how much skill he
may have; he has demonstrated a want of it in the treatment of the
particular case.
The failure to use skill, if the surgeon has it, may be negligence; but
when the treatment adopted is not in accordance with the established
practice, but is positively injurious, the case is not one of
negligence, but of want of skill. If the case is a new one, the patient
must trust to the skill and experience of the surgeon he calls. So must
he if the injury or disease is attended with injury to other parts,
or other diseases have developed themselves, for which there is no
established mode of treatment. But when the case is one as to which a
system of treatment has been followed for a long time, there should be
no departure from it, unless the surgeon who does it is prepared to
take the risk of establishing by his success the propriety and safety
of his experiment. This rule protects the community against reckless
experiments, while it admits the adoption of new remedies and modes of
treatment only when their benefits have been demonstrated, or where,
from the necessity of the case, the surgeon or physician must be left
to the exercise of his own skill and experience [175].
Physicians are not bound to comply with the demands of the public; they
may accept or refuse a call: but having accepted, one must continue in
attendance upon the case until recovery, unless dismissed, or unless
he has withdrawn in a proper way. Even if his services are gratuitous,
he must continue them until reasonable time has been given to procure
other attendance.
A husband sued a medical man for neglecting to attend |73| his wife,
according to agreement, during childbirth, and the jury gave him a
verdict of $500; the court considered that the physician had broken his
contract and was liable therefor, but reduced the damages to a nominal
sum, as, in an action on contract, the husband could not recover for
the personal injury and sufferings of the wife [176].
If a physician at any time desires to withdraw from a case, he must
give such reasonable notice as will enable the patient to obtain
assistance elsewhere. He has a right to withdraw at any time,
especially with his patient’s consent, but if he insists upon that
assent as a shield from liability for any negligence of which he may
have been guilty, or for any malpractice committed, the patient may
show, if he can, that the consent was obtained by representations
that were false; and then the consent will be no protection against
liability for damage that had occurred before the consent was
given [177].
While it is quite competent for a physician and his patient to make
any agreement they think fit, limiting the attendance to a longer or
shorter period, or to a single visit; and while, if there is no such
limitation, the physician can discontinue his attendance at his own
pleasure, after giving reasonable notice of his intention to do so;
yet, if he is sent for at the time of an injury by one whose family
physician he has been for years, the effect of his responding to the
call will be an engagement to attend upon the case so long as it
requires attention, unless he gives notice to the contrary, or is
discharged by the patient; and he is bound to use ordinary care and
skill, not only in his attendance but in determining when it may be
safely and properly discontinued [178]. Ordronaux says a physician
cannot |74| abandon a case without due notice. To do so would
constitute negligence of a grave character, and render him answerable
for all injury sustained by the patient in consequence thereof. The
contract is for the performance of a service of indefinite duration,
and usually without stipulation for its continuance during any
particular period. It is plainly a fraud upon the employer to abandon
or neglect discharging the trust after having accepted it, for the
acceptance constitutes a promise, and a promise is a good foundation
upon which to rest a legal obligation. If the physician retires from
it, he can only do so by placing the employer in as good circumstances
as he found him, and by giving due notice of his intention [179].
A medical man is liable to a civil action for injury resulting to
a patient from his negligence or unskilful treatment, although the
patient neither employed nor was to pay him. As Baron Parke said:
“If an apothecary administers improper medicines to his patient, or
a surgeon unskilfully treats him, and thereby injures his health, he
will be liable to the patient, even where the father or friend of the
patient may have been the contracting party with the apothecary or
surgeon; for, though no such contract had been made, the apothecary,
if he gave improper medicines, or the surgeon, if he took him as a
patient and unskilfully treated him, would be liable to an action for
a misfeasance” [180]. And as Richards, C.B., said: “From the necessity
of the thing, the only person who can properly sustain an action for
damages for an injury done to the person of a patient, is the patient
himself, for damages could not be given on that account to any other
person, although the surgeon may have been retained and employed by
him to undertake the case” [181]; and in this same case, which was an
|75| action brought by a husband and a wife for an injury done to the
wife, Garrow, B., said; “In the practice of surgery, the public are
exposed to great risks from the number of ignorant persons professing
a knowledge of the art, without the least pretensions to the most
necessary qualifications, and they often inflict very serious injury
on those who are so unfortunate as to fall into their hands. In cases
of the most brutal inattention and neglect, the patients would be
precluded frequently from seeking damages by course of law, if it
were necessary to enable them to recover, that there should have been
a previous retainer, on their part, of the person professing to be
able to cure them. In all cases of surgeons retained by any public
establishments, it would happen that the patient would be without
redress, for it could hardly be expected that the governors of an
infirmary should bring an action against the surgeon employed by them
to attend the child of poor parents, who may have suffered from his
negligence and inattention” [182].
As in the case of an attorney, so with a physician, it is not every
mistake or misapprehension that will make him liable to an action for
negligence. There is scarcely a case in which a physician is called in,
in which he may not be charged with _culpa levissima_, or the omission
to ward off every possible casualty; and if _culpa levissima_ makes
him liable, then his liability becomes almost co-extensive with his
practice. He is only responsible for _culpa levis_ [183].
It must be remembered that the implied liability of a physician or
surgeon, retained to treat a case professionally, extends no further,
in the absence of a special agreement, than that he will indemnify his
patient against any injurious consequences resulting from his want of
the proper degree of skill, care or diligence, in the execution of his
|76| employment; and in an action against the surgeon for malpractice,
the plaintiff, if he shows no injury resulting from negligence or want
of skill in the defendant, will not be entitled to recover even nominal
damages [184].
The question whether the physician possessed adequate skill, and
exercised adequate care, is, in a case of malpractice, for the jury
to decide. Theoretically, and we may add, literally, the jury have
the unquestioned right to decide every controverted fact, even if its
decision may involve the most abstrusively difficult and uncertain
questions in the regions of scientific enquiry. But it is for the
Judge to determine whether there is or not such evidence as ought
reasonably to satisfy the jury that the fact sought to be proved is
established. As Lord Cairns once put it, “The Judge has to say whether
any facts have been established by evidence from which negligence _may
be reasonably inferred_, the jury have to say whether from these facts,
when submitted to them, _negligence ought to be inferred_.” It is for
the Judge to say whether the case should or should not be submitted
to the jury; and the rule is imperative that it should not be, unless
the evidence be such that therefrom the negligence charged may be
reasonably inferred [185].
Judges are generally desirous of impressing on juries the necessity of
construing everything in the most favourable way for the defendant,
when such actions are brought against a surgeon. “It is notorious
there are many cases in which jurors are not the most dispassionate or
most competent persons to try the rights of parties, and an action of
this kind (_i. e._, against a surgeon for malpractice) comes within
this class. In such actions the Judge should |77| firmly assume the
responsibility of determining himself whether sufficient evidence has
or has not been given to compel him to leave the case to the jury” [186].
Medical writers speak strongly against such actions. One says, “In
the majority of cases these actions are the direct offspring of envy,
hatred, malice and all uncharitableness, and when, rocked in the
cradle of calumny and nursed by the hand of speculation, injury is
often inflicted upon the character of the physician, who is at the
same time left without any proper remedy at law. The effect, also, of
such suits upon the public mind is apt to be pernicious, for success
in obtaining damages often stimulates others into a repetition of
the experiment, and the physician consequently practises his art
in chains, being perpetually exposed to the risk of a suit, which
may ruin his reputation as well as his fortune. It becomes lawyers,
therefore, to consider, when called upon to institute such suits, that
little value can be placed on the _ipse dixit_ of a layman sitting as
critic upon the professional conduct of a physician. And that, aside
from such personal delinquencies as drunkenness, or gross negligence,
cruelty towards, or abandonment of his patient, the field in which the
physician discharges his professional duties is practically _terra
incognita_ to the unlearned, and one where no lay critic can follow
him” [187].
The same critic points out that the majority of suits for malpractice
have been brought against surgeons and not against physicians.
“Failure is rarely excused in a surgeon. He is expected to be an
adroit medical carpenter who, with knife and saw and splint, can so
re-construct the fractured or disjointed members of the human body as
to leave no mark or line as evidence of their previous |78| disruption.
On the other hand, the physician, enshrined within the penetralia
of his mystic art, and mounted upon a Delphic tripod, inaccessible
to vulgar criticism, pronounces his diagnosis and formulizes his
prescriptions with unquestioned judgment. His diagnosis may be faulty,
his medicines ill-selected, or ill-timed in their administration, and
still no blame be incurred by him for any evil consequences that may
ensue. For who will presume to say, in case of the patient’s death,
that he had not naturally reached that last illness foreordained to
all men, and of which the physician’s unsuccessful treatment is only
official testimony? Who knows, in fact, when a man has reached his last
illness until he dies? * * * And, as a corollary to this, strange as it
may seem, one might, through unskilfulness, sacrifice a human life with
more impunity than he could mutilate or deform a toe or a finger” [188].
The question of the amount of damages for personal injuries arising
from malpractice is one resting a good deal in the discretion of the
jury, and must of necessity be more or less uncertain. The party must
recover all his damages, present and prospective, in one action.
If the damages are so excessive as to strike all mankind, at first
blush, as beyond all measure unreasonable and outrageous, and such as
manifestly show the jury to have been actuated by passion, partiality,
corruption, or prejudice, the court will grant a new trial. Sometimes,
however, courts have granted new trials for excessive damages where the
excessiveness has fallen short of this.
In considering what should be taken into account by a jury estimating
the amount of damages to be awarded, the American courts have held,
that the loss of time caused by the injury is to be considered [189].
Also, the age and |79| situation in life of the injured one,
the expenses incurred, the permanent effect upon the plaintiff’s
capacity to pursue his professional calling, or to support himself as
beforetimes, are essential factors [190].
Bodily pain, too, is to be considered and compensated for; and so much
of mental suffering as may be indivisibly connected with it; but mental
anguish and agony cannot be measured by money—the courts consider—and
there is no established rule authoritatively commanding such a futile
effort [191]. In fact, the courts say, that one should get compensation
for all the injuries that are the legal, direct, and necessary results
of the malpractice [192].
The late case of _Phillips_ v. _The South Western Railway Company_
fully enunciates what, in the estimation of the English Judges, are
to be considered in fixing the damages. Cockburn, C.J., said, that
the heads of damages were the bodily injuries sustained, the pain
undergone, the effect on the health of the sufferer, according to
its degree and its probable duration as likely to be temporary or
permanent, the expenses incidental to attempts to effect a cure,
and the pecuniary loss sustained through inability to attend to
a profession or business [193]. In the Court of Appeal, Bramwell,
L.J., remarked, “You must give the plaintiff a compensation for
his pecuniary loss, you must give him compensation for his pain and
bodily suffering. Of course, it is almost impossible to give an
injured man what can be strictly called compensation, but you must
take a reasonable view of the case, and must consider, under all the
circumstances, what is a fair amount to be awarded to |80| him” [194].
Phillips, who was a physician of middle age and robust health, making
£5,000 a year, was so injured by a railway company, that he was totally
unable to attend to his business; his life was a burden and a source of
utmost pain, and the probability was that he would never recover. The
jury gave him £16,000, and the court refused to consider it excessive.
A physician, who has received personal injuries, may recover damages
for loss of business as a physician, although he has not such a
degree as would entitle him to maintain an action for professional
services [195]. The value of the fees which he would have received
without suit may be estimated.
An action cannot be maintained against the representatives of a
deceased surgeon to recover damages arising from the unskilful
treatment of a patient. Such actions do not survive [196].
A medical practitioner who causes the death of a patient by such
malpractice or negligence as would have entitled the patient (if death
had not ensued) to maintain an action and recover damages against him
in respect of the injury sustained thereby, is liable to an action for
damages, notwithstanding the death of the patient, and although the
circumstances under which the death was caused amount to felony. Such
action may be brought for the benefit of the wife, husband, parent
and child of the deceased, and the jury may give such damages as they
may think proportioned to the injury resulting from such death to the
parties respectively for whom and for whose benefit such |81| action
is brought; but such injury must be a pecuniary loss, and the jury may
not give damages as a _solatium_ [197]. In some of the American cases
the mental anguish caused by the injury has been taken into account in
estimating the damages to be given [198].
Not more than one action, however, will lie for and in respect of
the same subject-matter of complaint, and every such action must be
commenced within twelve months after the death of the person injured.
|82|
CHAPTER VI.
CRIMINAL MALPRACTICE.
Whenever death ensues as the alleged consequence of malpractice it
becomes necessary to inquire into the conduct of the physician, so as
to determine how far his want of skill, or negligence, has conspired
to produce it. The offence may, under certain circumstances indicating
a wanton and malicious disregard of human life, amount to murder. Of
course, a medical practitioner who should intentionally, and with
malice, cause the death of a patient, would be held guilty of this
crime; but in no case will an indictment for murder lie, unless there
be a felonious destruction of life, with malice either express or
implied. If a patient die from want of competent skill or sufficient
attention the practitioner is guilty of manslaughter [199]. “If one
that is of the mystery of a physician take upon him the cure of a
man, and giveth him such physic so as he dieth thereof, without any
felonious intent and against his will, it is no homicide.” So saith my
Lord Coke. Blackstone says, “This is neither murder nor manslaughter,
but misadventure, and he shall not be punished criminally.” On the
one hand, we must be careful and most anxious to prevent people from
tampering in physic so as to trifle with the life of man; and on the
other hand, we must take care not to charge criminally a person who is
of general skill because he has been unfortunate in a particular case.
It is God who gives, man only administers, medicine; and the medicine
|83| that the most skilful may administer may not be productive of
the expected effect; but it would be a dreadful thing if a man were to
be called in question, criminally, whenever he happened to miscarry in
his practice. It would be most fatal to the efficiency of the medical
profession if no one could administer medicine without a halter round
his neck [200].
At one time it was held, that if one, not a regular physician or
surgeon, should administer a medicine or perform an operation with a
fatal effect, it would be manslaughter at the least; but long since,
by Sir Matthew Hale, (one of the greatest Judges that ever adorned the
English Bench), this doctrine was questioned [201]. Now, however, both
in England and America, it is well settled that it makes no difference
whether the party be a regular practitioner or not; if he, _bona fide_
and honestly exercising his best skill to cure a patient, performs an
operation or administers a medicine which causes the patient’s death
he is not guilty of manslaughter. “God forbid,” saith Lord Hale, “that
any mischance of this kind should make a person not licensed, guilty
of murder or manslaughter. This doctrine, that if any one dies under
the hand of an unlicensed physician, it is felony, is apochryphal and
fitted, I fear, to gratify and flatter doctors and licentiates in
physic; though it may have its use, to make people cautious and wary
how they take upon themselves too much, in this dangerous employment.”
Hullock, B., remarked that it would be most dangerous for it to get
abroad that if an operation should fail the surgeon would be liable to
be prosecuted for manslaughter. And as to making a difference between
regular and irregular practitioners the same learned Judge aptly put
it, “in remote parts of the country many persons would be left to die
if |84| irregular surgeons were not allowed to practise.” Or as another
Judge put it, we should have many of the poorer sort of people die for
want of help, lest their intended helpers might miscarry [202].
Lord Lyndhurst agrees with the rule, but makes an exception. He says,
“I agree that in these cases there is no difference between a licensed
physician or surgeon and a person acting as a physician or surgeon
without a license. In either case if a party having a competent degree
of skill and knowledge makes an accidental mistake in the treatment
of a patient, through which mistake death ensues, he is not thereby
guilty of manslaughter; but if, where proper medical assistance can be
had, a person, totally ignorant of the science of medicine, takes on
himself to administer a violent and dangerous remedy to one labouring
under disease, and death ensues in consequence of that dangerous remedy
having been so administered, then he is guilty of manslaughter.” Webb,
a publican, had given large doses of Morrison’s pills to one ill of
small-pox [203].
“If any one, whether he be a regular or licensed medical man or not,
professes to deal with the life or health of others, he is bound to
have competent skill to perform the task that he holds himself out to
perform, and he is bound to treat his patient with care, attention
and assiduity;” and if the patient dies for want of either, the
practitioner is guilty of manslaughter. “Every person who enters
into a learned profession undertakes to bring to the exercise of it
a reasonable degree of care and skill” [204]. And if a medical man,
though lawfully qualified to act as such, cause |85| the death of
a person by the grossly unskilful or grossly incautious use of a
dangerous instrument, he is guilty of manslaughter. No one is justified
in making use of an instrument, in itself a dangerous one, unless he
does so with a proper degree of skill and caution [205]. There must be
competent knowledge and care in dealing with a dangerous drug; if a man
is ignorant of the nature of the drug he uses, or is guilty of gross
want of care in its use, it would be criminal culpability [206]. In
Iowa, it was held that one assuming to act as a physician, who treats a
patient in good faith and to the best of his ability, is not criminally
responsible for the death of his patient, caused by the medicine he
administers [207].
“To substantiate the charge of manslaughter, the prisoner must have
been guilty of criminal misconduct, arising either from the grossest
ignorance, or the most criminal inattention; one or other of these
is necessary to make him guilty of that criminal negligence and
misconduct which is essential to make out a case of manslaughter.”
Thus Lord Ellenborough laid down the law in the case of a man midwife
who was on his trial for murder by malpractice [208]. Long since in
the _Mirror_ [209] it was said, “If physicians or chirurgeons take
upon them a cure, and have no knowledge or skill therein, or if they
have knowledge, if nevertheless they neglect the cure, or minister
that which is cold for hot, or take little care thereof, or neglect
due diligence therein, and especially in burning and cutting off
members, which they are forbidden to do, but at the peril of their
patient; if their patients die or lose their members, in such cases
they are manslayers or mayhemdors.” Park, J., |86| charged the
jury very similarly in one of St. John Long’s celebrated cases.
“If,” said his Lordship, “you think there was gross ignorance or
scandalous inattention in the conduct of the prisoner, then you will
find him guilty; if you do not think so, then your verdict will be
otherwise” [210].
Wharton considers that the position assumed by Lord Ellenborough
depends upon the honesty and _bona fides_ of the practitioner; and
that if he is pursuing a plan of bold imposture the law would be
otherwise [211].
In Long’s case, Baron Garrow said, “I make no distinction between the
person who consults the most eminent physician and the cases of those
whose necessities or whose folly may carry them into any other quarter.
It matters not whether the individual consulted be the President of
the College of Surgeons, or the humblest bone-setter of the village;
but, be it one or the other, he ought to bring into the case ordinary
skill and diligence. I am of opinion that if a person who has ever so
much or so little skill sets my leg and does it as well as he can and
does it badly, he is excused; but, suppose the person comes drunk,
and gives me a tumbler full of laudanum, and sends me into the other
world, is it not manslaughter? And why is that? Because I have a right
to have reasonable care and caution.” In a subsequent case against the
same practitioner, Bayley, B., said to the jury, “I have no hesitation
in saying for your guidance, that if a man be guilty of gross neglect
in attending to his patient after he has applied a remedy, or of gross
rashness in the application of it, and death ensues in consequence, he
will be liable to a conviction for manslaughter.” “I consider rashness
will be sufficient to make it manslaughter. As, for instance, if I have
the toothache, and a person undertakes to cure it by |87| administering
laudanum, and says, ‘I have no notion how much will be sufficient,’ but
gives one a cupful, which immediately kills; or if a person prescribing
James’ powder says, ‘I have no notion how much should be taken,’ and
yet gives one a tablespoonful, which has the same effect; such persons,
acting with rashness, will, in my opinion, be guilty of manslaughter.
A prosecution is for the public benefit, and the willingness of the
patient cannot take away the offence against the public” [212].
The matter has been well put in a Missouri case. “If,” said the Judge,
“the party prescribing has so much knowledge of the fatal tendency
of the prescription that it may reasonably be presumed that he
administered the medicine from an obstinate and wilful rashness, and
not from an honest intention and expectation of effecting a cure, he
is guilty of manslaughter at least, though he might not have intended
any bodily harm to the patient” [213]. It is the presence of intention
which determines the moral complexion of an action, and whenever this
intention (always presumed to be good) is proved to be bad, then, and
then only, does a physician become criminally responsible for his
wrongdoings. Doubtless, a bad intention may be at times inferred from
the character of the misconduct; and neglect, particularly when gross,
may be classed among those reasons which justify such an inference [214].
What the law deems gross negligence has been thus defined in a case
where a “Herbalist” was on trial for manslaughter, for the death of a
patient through an overdose of colchium seeds and brandy for a cold.
“Gross negligence might be of two kinds; in one sense, where a man, for
instance, went hunting, and neglected his patient, |88| who died in
consequence. Another sort of gross negligence consisted in rashness,
where a person was not sufficiently skilled in dealing with dangerous
medicines which should be carefully used, of the properties of which he
was ignorant, or how to administer a proper dose. A person who, with
ignorant rashness, and without skill in his profession, used such a
dangerous medicine, acted with gross negligence. It was not, however,
every slip that a man might make that rendered him liable to a criminal
investigation. It must be a substantial thing. If a man knew that he
was using medicines beyond his knowledge and was meddling with things
above his reach, that was culpable rashness. Negligence might consist
in using medicines in the use of which care was required, and of the
properties of which the person using them was ignorant. A person who so
took a leap in the dark in the administration of medicines, was guilty
of gross negligence. If a man was wounded and another man applied to
his wound sulphuric acid, or something which was of a dangerous nature,
and ought not to be applied, and which led to fatal results, then the
person who applied this remedy would be answerable, and not the person
who inflicted the wound, because a new cause had supervened. But, if
the person who dressed the wound applied a proper remedy, then, if
a fatal result ensued, he who inflicted the wound remained liable.”
In these words Willes, J., charged the jury, and they, after a long
deliberation, brought in a verdict of “not guilty” [215]. And in the
very recent case of _State_ v. _Hardister_ [216], it was held that a
physician is criminally liable for his gross ignorance causing the
death of his patient, but not for a mere mistake of judgment.
However, in the celebrated case against the father and founder of the
botanic or steam system of medicine, whose |89| favorite remedies
were coffee, “well-my-gristle,” and “ram cats,” it was held, that
if a person assuming to be a physician, through gross ignorance,
but honestly and _bona fide_, administers medicine which causes the
death of the patient, he is not guilty of manslaughter [217]. This was
in the year 1809; and the doctrine laid down was followed in 1844
in Missouri in an exactly similar case [218]. And quite recently in
Iowa, where one Shulz was tried for manslaughter because his patient
died under the Baunscheidt practice, _i. e._, pricking the body and
rubbing in a certain kind of oil, the Court on review said: “In 2
Bishop’s Criminal Law, (4th Ed.) sec. 695, the law upon this subject is
declared as follows: ‘From the relationship of physician and patient
the death of the latter not unfrequently arises. On this subject the
doctrine seems to have been held that whenever one undertakes to cure
another of disease or to perform on him a surgical operation, he
renders himself thereby liable to the criminal law, if he does not
carry to his duty some degree of skill, though what degree may not be
clear; consequently, if the patient dies through his ill-treatment,
he is indictable for manslaughter. On the other hand, a more humane
doctrine is laid down, that since it is lawful and commendable for
one to cure another, if he undertakes this office in good faith and
adopts the treatment he deems best, he is not liable to be adjudged
a felon, though the treatment should be erroneous, and in the eyes
of those who assume to know all about this subject, which in truth
is understood by no mortal, grossly wrong, and though he is a person
called, by those who deem themselves wise, grossly ignorant of medicine
and surgery. The former doctrine seems to be the English one, and so
in England a person, whether a licensed medical practitioner or not,
who undertakes to deal with the life or health of |90| people, is bound
to have competent skill or suffer criminally for the defect. Now, if
a man thinks he has competent skill, and makes no misrepresentation
to his patients concerning the amount or kind of medical education
actually received by himself, he seems in reason to stand on exactly
the foundation occupied by every person who honestly undertakes
medical practice after full advantages, so far as concerns his state
of mind, and it is the mind to which we look in questions of legal
guilt. Any person undertaking a cure, but being grossly careless and
thus producing death, is for a different reason liable to a charge of
manslaughter, whether he is a licensed practitioner or not.’ These
cases seem to us to announce a correct rule. The interests of society
will be subserved by holding a physician civilly liable in damages for
the consequences of his ignorance, without imposing upon him criminal
liability when he acts with good motives and honest intentions” [219].
If the death of a man has been accelerated by the want of due skill
and competency, or by the carelessness, of his physician, the latter
cannot defend himself by proving that his patient was afflicted with
a mortal disease [220]. If a man who has received a serious wound is
placed under the charge of a surgeon who, in probing the wound or
otherwise operating on the patient, immediately causes his death;
then, if the surgeon has acted negligently, or maliciously, he is
indictable for the homicide, and the original assailant only for an
attempt. But, if the surgeon using due skill and care occasions death
while he is endeavouring to heal the wound, then he who inflicted
the wound is chargeable with the death; for he who does an unlawful
act is responsible for all the consequences that in the ordinary
course of events flow from it. It is an ordinary consequence of a
wound that a surgeon should be called in to attend to it, |91| and
it is a necessary incident of surgery that patients should die under
the knife. It is no defence, where a death is not shewn to have been
produced by the medical attendant’s negligence, that the deceased
might have recovered if a higher degree of professional skill had been
employed [221].
If a person is assailed by a fatal disease, and there is no escape
from it, save by a dangerous surgical operation, then, if he gives his
free and intelligent consent to the operation, and it is skilfully
performed, the surgeon cannot be blamed even though the patient perish
under the knife. The German Jurists go still further and say, suppose
a dangerous operation is required as the last hope of resuscitating an
unconscious person; if the operation is performed with the skill usual
to surgeons under such circumstances, and death ensue, the surgeon is
blameless [222]. If a woman is in such a state of labor that her life
can only be preserved by the sacrifice of that of the child, then
it is not only the right but the duty of the attendant to save the
mother at the expense of the babe. Wharton says that this position is
indisputable [223].
From the leading cases the following propositions may be extracted, say
Wharton and Stillè, sec. 1063.
1. If the defendant acted honestly and used his best skill to cure, and
it does not appear that he thrust himself in the place of a competent
person, it makes no difference whether he was at the time a regular
physician or surgeon, or not.
2. To constitute guilt, gross ignorance or negligence must be proved.
|92|
3. A defendant who, with competent knowledge, makes a mistake in a
remedy is not answerable, but it is otherwise when a violent remedy,
shewn to have occasioned death, is administered by a person grossly
ignorant but with average capacity, in which case malice is presumed in
the same way that it is presumed when a man _compos mentis_ lets loose
a mad bull into a thoroughfare, or casts down a log of wood on a crowd.
4. Where competent medical aid can be had, the application of violent
remedies by an ignorant person, though with the best motives, involves
him in criminal responsibility.
5. Express malice, or an intent to commit a personal or social wrong,
makes the practitioner criminally responsible in all cases of mischief.
These well known writers say, that according to Caspar and Böcker, in
the treatment of internal diseases, the physician can never be held
guilty of criminal carelessness for failing to use any particular
remedy, since there is never any remedy upon which all authorities are
agreed, and since it is always possible the patient may recover without
the use of such remedy [224].
|93|
CHAPTER VII.
PROFESSIONAL EVIDENCE.
It was decided nearly one hundred years ago, in the Duchess of
Kingston’s case, that a medical man has no privilege to avoid giving in
evidence any statement made to him by a patient, but that he is bound
to disclose, when called upon to do so in a court of justice, every
communication, however private and confidential, which has been made to
him by a patient while attending him in a professional capacity [225].
This has often been deemed a grievance by medical men, and considered
a compulsory breach of professional ethics; for the relations between
patient and physician, being necessarily of a confidential character,
communications made to a physician are looked upon, by the profession,
as confessions which should be kept religiously locked in the brain of
the physician. Lord Mansfield said, “If a medical man was voluntarily
to reveal those secrets, to be sure he would be guilty of a breach of
honour and of great indiscretion, but to give that information which by
the law of the land he is bound to do will never be imputed to him as
any indiscretion whatever” [226].
A French writer says, the tribunals neither ought, nor have they the
power, to exact from a physician the revelation of a secret confided to
him because of his office; at all events, he may and ought to refuse
to tell. Religion, |94| probity, nay, the rights of society, make
this the law. Still more are we bound to secrecy when not compelled
to disclose. Upon this point casuists and jurisconsults are of one
opinion [227].
These communications between physician and patient, which may relate
to the history of a transaction in which a wound has been received,
or a particular disease communicated, whenever essential to the
treatment of the patient’s case, are in some States of the American
Union considered privileged communications, which the physician is
either expressly forbidden, or not obliged, to reveal. This is the
law in Arkansas, California, Indiana, Michigan, Iowa, Missouri,
Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is
not compelled, and in the other States named he is not allowed to make
the disclosure; but in Minnesota the prohibition extends only to civil
cases; and in Iowa, Indiana and Minnesota, the seal can be removed by
the patient himself. In these States the confession, in order to be
protected against disclosure, must relate exclusively to such matters
as are indispensable to the professional treatment of the patient.
Communications made outside of this sphere acquire no immunity from
having been entrusted to physicians, for at common law such are not
deemed privileged, and wherever so recognized they are the creatures of
statutory enactment [228].
As stated, in some of the above-mentioned States, the party interested
may waive the privilege, in which case the communication may be
disclosed [229]. But in New York it is expressly enacted that “no
person duly authorized to practise physic, or surgery, shall be allowed
to disclose any information which he may have acquired in attending any
|95| patient in a professional character, and which information was
necessary to enable him to prescribe for such patient as a physician,
or to do any act for him as a surgeon” [230].
Yet, even there, the statute will not be construed so as to shield
a person charged with a crime, instead of being a protection to the
victim, the patient [231].
The seal upon the physicians lips is not taken away by the patient’s
death [232].
Necessarily all communications to be privileged must be of a lawful
character, and not against morality or public policy; hence a
consultation as to the means of procuring an abortion on another is
not privileged; nor, by parity of reason, would any similar conference
which was held for the purpose of devising a crime or evading its
consequences [233].
It must appear not only that the information was acquired during
professional attendance, but was such as was necessary to enable the
physician to prescribe. It is for the party objecting to shew that the
information sought to be obtained is within the statutory exclusion.
“It will not do to extend the rule of exclusion so far as to embarrass
the administration of justice. It is not even all information which
comes within the letter of the statute which is to be excluded. The
exclusion is aimed at confidential communications of a patient to
his physician, and also such information as a physician may acquire
of secret ailments by an examination of the person of his patient.
The policy of the statute is to enable a patient, without danger of
exposure, to disclose to his physician all |96| information necessary
for his treatment. Its purpose is to invite confidence and to prevent
a breach thereof. Suppose a patient has a fever, or a fractured leg or
skull, or is a raving maniac, and these ailments are obvious to all
about him, may not the physician who is called to attend him testify
to these matters?” “Before information sought to be obtained from
physicians, witnesses, can be excluded the court must know somewhat of
the circumstances under which it was acquired, and must be able to see
that it is within both the language and the policy of the law” [234].
A report of the medical officer of an insurance company on the health
of a party proposing to insure his life is not privileged from
production; nor is the report of a surgeon of a railway company, as to
the injuries sustained by a passenger in an accident, unless such a
report has been obtained with a view to impending litigation [235].
Representations made by a sick person of the nature and effects of the
malady under which he is suffering are receivable as original evidence,
whether made to a physician or to any other; though, if made to a
physician, they are entitled to greater weight than if made to a man
incapable of forming a correct judgment respecting the accuracy of the
statements, from unacquaintance with the symptoms of diseases [236].
When the bodily or mental feelings of a party are to be proved, his
exclamations or expressions indicating present pain or malady are
competent evidence [237]; and |97| the complaints and statements of
the injured party, if made at the very time of the occurrence, are
admissible as _res gestæ_, not only as to the bodily suffering, but
as to the circumstances of the occurrence; and the time in question
is not the time of injury, but the time when it is material to prove
a condition of bodily or mental suffering, and that may be material
for weeks, and perhaps months, after an injury has been inflicted.
The statements are admissible even though made after the commencement
of an action, though this may be a circumstance to detract from the
weight of the evidence of a physician, so far as it was founded on
the statements [238]. But statements or declarations of a sick or
injured person, referring to his state and condition at a time past,
and not furnishing evidence of a present existing malady, are to be
carefully excluded, whether made to an expert or a non-expert [239],
and statements in writing by patients to a medical man, describing
the symptoms of the illness upon which the physician has advised the
patient, are also inadmissible in evidence [240]. It has been said in
Illinois, that as a physician must necessarily, in forming his opinion,
be, to some extent, guided by what the sick person may have told him in
detailing his pains and sufferings, not only the opinion of the expert,
founded in part upon such data, is receivable in evidence, but that he
may state what the patient said in describing his bodily condition, if
said under circumstances which free it from all suspicions of being
spoken with reference to future litigation and give it the character of
_res gestae_ [241]. |98|
On the other hand, in Massachusetts, in an action for personal
injuries, a surgeon who had attended plaintiff was held competent to
testify as to plaintiff’s condition from what he saw, but not from
anything the patient told him [242]. A physician testified that the
plaintiff stated she had received a blow in the stomach. The Court said
that it would clearly have been competent for the physician, after
having testified to the plaintiff’s condition and to the complaints
and symptoms of pain and sufferings stated by her, to have given his
opinion that they were such as might have been expected to follow
the infliction of a severe blow. But it was not competent for the
physician to testify to her statement that she had received a blow in
her stomach [243]. And in Tennessee, the statement made by a man when
his wounds were being examined, as to who made them, or as to the
instrument with which they were inflicted, was deemed inadmissible [244].
Memoranda, although not legal instruments in the proper sense of the
term, have been considered as an inferior class of records, and as
such entitled to some standing in courts. Such minutes of past facts
may be used by experts while under examination, but only to refresh
their memory, and not to take its place. For this purpose they may use
written entries in note books, or even copies of them, provided always
they can swear to the truth of the facts as there stated. Yet, if they
can not from recollection speak to the fact any farther than as finding
it stated in a written entry, their testimony will amount to nothing.
It is not necessary that the writing should have been made by the
expert himself, nor even that it should be an original |99| writing,
provided, after inspecting it, he can testify to the facts from his own
recollection [245].
The English and American authorities agree that medical, or other
scientific books, are not competent evidence in courts of law; they
cannot be put in evidence, although the medical witnesses state that
such books are works of authority in medicine. Tindal, C.J., thought
that witnesses might be asked whether in the course of their reading
they had found such-and-such a rule laid down; they might be asked how
far their opinion was founded on books, and might refer to such books;
they might be asked their judgment on the point, and the grounds of
it, which may be in some degree founded on these books, as a part of
their general knowledge, but the book itself could not be read. And
as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical
Jurisprudence to be read to the jury, saying: “That is no evidence in
a court of justice. It is a mere statement by a medical man of hearsay
facts of cases at which he was, in all probability, not present. I
cannot allow it to be read.” And the refusal seems to be the rule in
England. And Redfield, C.J., says, that when objected to, these books
have not generally been allowed to be read in the United States, either
to the Court or jury. And a very recent writer says, “The result of the
cases on this subject shews clearly that the very decided weight of
authority is against the admissibility in evidence of standard medical
treatises.” Such is the rule in England, Ontario, Indiana, Maine,
Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and
Wisconsin, supported by _dicta_ in California and New Hampshire, and
opposed by decisions in Alabama and Iowa [246]. |100|
In Iowa and Wisconsin such books have been allowed to be read, the
Court in one case remarking, “The opinion of an author, as contained
in his works, we regard as better evidence than the mere statement of
those opinions by a witness, who testifies as to his recollection of
them from former reading. Is not the latter secondary to the former?
On the whole, we think it the safest rule to admit standard medical
books as evidence of their opinions upon questions of medical skill or
practice involved in the treatment.” In Wisconsin, however, the court
seems now to have overruled its earlier decisions, and to have sided
with the majority [247].
In Illinois, a witness may, to test his knowledge, be cross-examined
as to his reading of particular authors upon the subject, and as to
whether reputable writers do not entertain certain views upon the
subject. Paragraphs from standard authors, treating of the disease in
question, may be read to the witness, and he may be asked if he agrees
therewith, as one of the means of testing his knowledge; but care
should be taken by the court to confine such cross-examination within
reasonable limits, and to see that the quotations read are fairly
selected so as to present the author’s views. Mr. Rogers questions the
wisdom of this decision [248]. The witness, however, cannot read from a
scientific work in his examination in chief, though he be an expert and
agree with the views expressed by the author [249]. Nor can a passage
from a book be got before a jury as evidence in an indirect manner,
when it cannot be read to them. So it was decided where a medical man
was asked if he was acquainted with a certain book; he replied, that he
had heard of it, but had not read it. He was then asked |101| whether
it was considered good authority, and he said it was. He was then asked
to read a certain paragraph; this he did, and was re-called. Counsel
then read from the book the same paragraph and asked if such a case as
that stated was reported. Held to be error [250]. And in Ontario it has
been held improper to ask medical witnesses, on cross-examination, what
books they consider best upon the subject in question, and then to read
such books to the jury; but they may be asked whether such books have
influenced their opinion [251].
Although, as a rule, scientific books cannot be read to a jury as
evidence, they may be read to discredit the testimony of experts, who
claim to be familiar with them and refer to them as authority. Where
one borrows credit for his accuracy, by referring to books treating of
the subject, and by implying that he echoes the standard authorities,
the book may be resorted to, to disprove the statement of the witness,
and to enable the jury to see that the book does not contain what
he says it does, and thus to disparage the witness, and hinder the
jury from being imposed upon by a false light [252]. It has been held
again and again that scientific books cannot be read by counsel to
the jury as a part of their argument. Shaw, C.J., of Massachusetts,
says, “Facts or opinions cannot be laid before the jury, except by
the testimony under oath of persons skilled in such matters.” Again,
“where books are thus offered (_i. e._, to be read in argument), they
are, in effect, used as evidence, and the substantial objection is,
that they are statements wanting the sanction of an oath; and the
statement thus proposed is made by one not present, and not liable to
cross-examination. If the same author were cross-examined, and |102|
called to state the grounds of his opinions, he might, himself, alter
or modify it, and it would be tested by a comparison with the opinions
of others. Medical authors, like writers in other departments of
science, have their various and conflicting theories, and often defend
and sustain them with ingenuity. But as the whole range of medical
literature is not open to persons of common experience, a passage may
be found in one book favorable to a particular opinion, when, perhaps,
the same opinion may have been vigorously contested, and, perhaps,
triumphantly overthrown, by other medical authors, but authors whose
works would not be likely to be known to counsel or client, or to
Court or jury. Besides, medical science has its own nomenclature, its
technical terms and words of art, and also common words used in a
peculiar manner, distinct from the received meaning in the general use
of the language. From these and other causes, persons not versed in
medical literature, though having a good knowledge of the general use
of the English language, would be in danger, without an interpreter,
of misapprehending the true meaning of the author. Whereas a medical
witness could not only give the fact of his opinion, and the grounds on
which it is formed, with the sanction of his oath, but would also state
and explain it in language intelligible to men of common experience.
If it be said that no books should be read, except works of good
and established authority, the difficulty at once arises as to the
question, what constitutes “good authority?” [253].
In an English case, counsel, in addressing the jury, attempted to quote
from a work on surgery; Alderson, B., would not allow him, saying,
“You surely cannot contend that you may give the book in evidence,
and if not, what right have you to quote from it in your address, and
do that indirectly which you would not be permitted to do in |103|
the ordinary course?” In Massachusetts, North Carolina, Michigan,
California and New York, similar decisions have been given [254]; and
in giving the dissenting opinion in _State and Hoyt_ [255], Loomis, J.,
said, “Books may be crazy as well as men, and all sorts of theories
relative to responsibility for crime are advocated in books. Courts do
not take judicial notice of standard medical or scientific works, and
the standard works of to-day may not long continue such, owing to new
discoveries and advancing knowledge.” In this case the question was
as to reading medical books on insanity on trials where the question
of insanity arose; the book was Ray’s “Medical Jurisprudence of
Insanity.” In a still later case [256], it was held to have been error
for the attorney, on the argument, to read to the jury extracts from
Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it
is peculiarly important that a defendant charged with a crime should be
confronted by the expert witnesses against him, and that they should be
cross-examined in his presence. But when the opinions of a writer are
permitted to go to the jury, the writer is not sworn or cross-examined.
If held admissible the question (of insanity) may be tried, not by the
testimony, but upon excerpts from works presenting partial views of
variant and perhaps contradictory theories [257].
In Connecticut, however, in a murder case the Court (Loomis, J., and
Park, C.J., out of the five Judges dissenting,) held, that standard
medical works on insanity might be read to the jury by the counsel for
the accused, when |104| discussing the question of his insanity. It
was said that “in this jurisdiction (that of Connecticut) for a long
series of years counsel have been permitted to read to the jury, as
a part of their argument upon this part of their case, extracts from
such treatises as by the testimony of experts have been accepted by
the profession as authority upon that subject, such treatises as have
helped to form the opinion expressed by the expert. The practice by
repetition has hardened into a rule” [258]. In Indiana, it was held that
if the extracts were merely argumentative and contained no opinions
that could be regarded as properly matters of evidence, they might be
admitted, subject to the instructions of the Court as to the law of
the case and under the warning that they were not evidence. In Texas
and in Delaware, similar decisions have been given [259]. And in Ohio,
where, at the trial of a cause, counsel was forbidden to read to the
jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said,
“It is not to be denied, but that a pertinent quotation or extract from
a work on science or art, as well as from a classical, historical, or
other publication, may, by way of argument or illustration, be not only
admissible, but sometimes highly proper, and it would seem to make no
difference whether it was repeated by counsel from recollection or
read from a book. It would be an abuse of this privilege, however,
to make it the pretence of getting improper matter before the jury
as evidence in the cause.” As it did not appear that the proposed
quotation was relevant or came within the appropriate and legitimate
scope of the argument, or that the party was injured by its exclusion,
the Court would not reverse on this ground [260]. Where the reading
is allowed, it seems to be considered “a valuable privilege, yet so
susceptible of abuse, that the |105| extent and manner of its exercise
must be entrusted in a great measure to the sound discretion of the
Court;”—“not a practice ever sanctioned directly or indirectly by the
Court, nor one which has generally been considered by the Judges as of
binding force in law, but rather as subject to the discretion which, it
is true, has been usually exercised in favor of the accused in capital
trials” [261].
Where the exclusion rule obtains, counsel in addressing the jury has
no right to quote the opinions of medical men as given in their works;
if they do, it is the duty of the Court to instruct the jury that such
books are not in evidence but theories simply of medical men [262]. But
there is no question that, under all circumstances, books of science
may be read in argument to the Court.
Medical men are often called to give evidence as to dying declarations
where there is a charge of homicide, and where the cause of the death
of the declarant is the subject of the declaration. They should
remember that the declaration will not be admissible unless the
deceased was conscious of approaching death and made it under a sense
of his impending doom; any hope of recovery, however slight, renders
the declaration inadmissible; and the question turns rather upon the
expectation of death at the time of making the declaration than upon
the interval between it and the death [263].
An entry made by a medical man, in the course of his profession, is
admissible in evidence after his death, if it be against his interest;
and such an entry will be received as evidence of collateral and
independent matter, etc. When |106| the question was as to the age
of a child, the book of the accoucheur who attended the mother was
produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife;
_Filius circa hor. 3 post merid. nat._ etc. W. Fowden, 1768, April 22.
_Filius natus_ wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid”
was against the pecuniary interest of the accoucheur, so the entry was
admitted to prove the date of the birth [264].
In England the rule is thus laid down as to excluding experts from
the room during the examination of witnesses; “medical or other
professional witnesses, who are summoned to give scientific opinions
upon the circumstances of the case as established by other testimony,
will be permitted to remain in court until this particular class of
evidence commences, but then, like ordinary witnesses, they will have
to withdraw, and to come in one by one, so as to undergo a separate
examination.” A similar rule prevails in Scotland and in the United
States [265].
It would seem that the court has power to limit the number of experts
in any case [266].
Taylor, in his well-known work on “Medical Jurisprudence,” lays down
many valuable suggestions for the guidance of medical witnesses;
among other things, he says, “In reference to _facts_, a medical
witness must bear in mind that he should not allow his testimony to
be influenced by the consequences that may follow from his statement
of them, or there probable effect on any case which is under trial.
In reference to _opinions_, their possible influence on the fate of
a prisoner should inspire caution in |107| forming them; but, when
once formed, they should be honestly and candidly stated, without
reference to consequences.” “The questions put on either side should
receive direct answers from the medical witness, and his manner should
not be perceptibly different whether he is replying to a question
put by the counsel for the prosecution, or for the defence.” “The
replies should be concise, distinct and audible, and except where
explanation may be necessary, they should be confined strictly to
the terms of the question.” “Answers to questions should be neither
ambiguous, undecided, nor evasive.” “The replies should be made in
simple language, free from technicality.” “A medical witness may,
without any imputation upon his _bona fides_, explain medical points to
counsel, and correct him on medical subjects, when wrong in his views
or statements, but he should avoid even the appearance of prompting
counsel in the conduct of the case.”
|108|
CHAPTER VIII.
MEDICAL EXPERTS.
Whenever the subject matter of a legal enquiry is such that, from its
partaking of the nature of a science, art or trade, inexperienced
persons are unlikely to prove capable of forming a correct judgment
upon it without assistance, then the opinions of witnesses possessing
peculiar skill and knowledge in the matters in question are admissible
in courts of justice. And it is only when the matter inquired of
lies within the range of the peculiar skill and experience of the
witnesses, and is one of which the ordinary knowledge and experience
of mankind does not enable them to see what inference should be drawn
from the facts, that the skilled witnesses may supply opinions as their
guide [267]. The rule admitting the opinions of experts in such cases
is founded on necessity, for juries are not selected with any view to
their knowledge of a particular science, art or trade, requiring a
course of previous study, experience or preparation [268].
The rule of law on which the giving in evidence the opinion of
witnesses, who know nothing of the actual facts of the case, is
founded, is not peculiar to medical testimony, but is as a general
rule applicable to all cases where the question is one depending on
skill and science in any particular department. . . . In general it
is the opinion of the jury which is to govern, and this is to be
formed upon the |109| proof of the facts laid before them. But some
questions lie beyond the scope of the observation and experience of
men in general, yet are quite within the observation and experience
of those whose peculiar pursuits and profession have brought that
class of facts frequently and habitually under their consideration.
When, therefore, a question arises in a court of justice upon any such
subject, and certain facts are proved by other witnesses, one skilled
in such subject may be asked his opinion as to the character of such
facts; or he may be asked his opinions on certain facts observed by
himself. This is true with regard to any question of science, because
persons conversant with such science have peculiar means, from a larger
and more exact observation and long experience in such department of
science, of drawing correct inferences from certain facts observed by
themselves or testified to by other witnesses. The opinion of such
witnesses is designed to aid the judgment of the jury in regard to the
influence and effects of certain facts which lie out of the observation
and experience of persons in general [269]. These witnesses are called
“experts.” This term seems to imply both superior knowledge and
practical experience in the art or profession. But generally nothing
more is required to entitle one to give testimony as an expert, than
that he has been educated in the particular art or profession; for
persons are presumed to understand questions pertaining to their own
profession or business [270].
The practice of admitting the evidence of experts is an old one: in the
Roman Law they are frequently alluded to, and in the earliest Common
Law reports they are spoken of as of established usage. Says Saunders,
J., “and first I grant that if matters arise in our law which |110|
concern other sciences or faculties we commonly apply for the aid of
that science or faculty which it concerns. In a case of mayhem the
defendant prayed the court that the wound might be examined, on which
a writ was issued to the sheriff to cause to come “_medicos chirurgos
de melioribus London. ad informandum Dominum regem et curiam de his quæ
eis exparte Domini Regis injungerentur_ [271].”
Some Judges and writers have very little respect for the evidence and
opinions of experts. An Iowa Judge says, observation and experience
“teach that the evidence of experts is of the very lowest order, and
of the most unsatisfactory kind.” One from Maine, speaks of “the vain
babblings and oppositions of science so called, which swell the record
of the testimony of experts when the hopes of a party depend rather
upon mystification than enlightenment.” An Illinois Judge quotes a
distinguished occupant of the bench as saying, “if there was any
kind of testimony not only of no value, but even worse than that, it
was in his judgment that of medical experts.” Lord Campbell said,
“Hardly any weight is to be given to the evidence of what are called
scientific witnesses: they come with a bias on their minds to support
the cause in which they are embarked” [272]. Taylor says, “Perhaps
the testimony which least deserves credit with a jury is that of
skilled witnesses. . . . Being zealous partisans their belief becomes
synonymous with faith as defined by the apostle, and it too often is
but the substance of things hoped for, the evidence of things not
seen” [273]. On the other hand, Best says, “It would not be easy to
overrate the value of the evidence given in many difficult and delicate
enquiries, not only by medical men and physiologists, but by learned
|111| and experienced persons in various branches of science, art and
trade” [274]. And many Judges have spoken of the essential aid to courts
and juries rendered by the opinion of the experienced, skilful and
scientific witness who has a competent knowledge of the facts involved.
When one takes his place as an expert before a court, a legal paradox
is instituted on his behalf, by which he is allowed to testify—not as
to what he knows, but to what he believes or forms an opinion upon,
based necessarily on probabilities of analogy as well as experience.
Nothing is required (in the absence of any statutory provision to the
contrary) to entitle any one to give evidence as a medical witness,
than that he has been educated in the science of medicine; and this he
may be by study without practice, or by practice without study; it is
not necessary that he should be a physician, or have studied for one,
nor be a graduate, nor one licensed to practise, nor need he be or have
been a practitioner [275]. One may be competent to testify as an expert,
although his special knowledge of the particular subject of enquiry
has been derived from the reading and study of standard authorities,
and not from experience or actual observation. But one cannot qualify
himself as an expert in a particular case merely by devoting himself
to the study of authorities for the purposes of that case, when
such reading and study is not in the line of his special calling or
profession and is entered upon to enable him to testify in the case. In
Vermont, however, it has been held that mere education as a physician,
without some practice as such, is insufficient to qualify one as an
expert; and in Arkansas, it is said, that competency must be shewn from
study and experience. In New York, it has been held that one otherwise
qualified, who is |112| a physician and surgeon, may give evidence,
although not in full practice at the time; this fact merely goes to
affect his credit [276].
It is not necessary that the physician should have made the particular
disease involved in the enquiry a specialty; medical men of practice
and experience are experts, and their opinions are admissible in
evidence upon questions that are strictly and legitimately embraced in
their profession and practice. If one has made the matter in question a
specialty, doubtless his opinion will be of more value than if he has
not; and it has been said, that one who has devoted himself exclusively
to one branch of his profession cannot give evidence as an expert on
another [277]. For example, one not an oculist may speak as to the cause
of injuries to an eye; one who has not made diseases of the mind a
special study may give his opinion as to the existence of insanity; one
not a practical chemist or analyst, but understanding the practical
details of chemistry and the means of detecting poisons, may testify
as to the tests in the chemical analysis of a stomach, and as to the
tests usually applied to detect poison [278]. The law will even allow a
physician to speak as to the length of time a mule has been suffering
from a disease [279]. But one who has had no experience as to the effect
upon health of illuminating gas cannot testify in relation thereto as
an expert [280]. Nor can one who has for thirty years been exclusively
treating the insane be permitted to testify, as an expert, on |113|
the mental capacity of a person in the last stages of disease, who has
not been previously insane [281].
To render the opinion of a witness competent evidence, he must, in
general, be in some way peculiarly qualified to speak on the subject,
and have knowledge not possessed by the mass of persons of ordinary
experience and intelligence [282]. Upon this principle, a priest who had
studied physiology and psychology, in order that he might pass upon
the mental conditions of communicants in his church, and who had so to
decide daily, was permitted to speak as to the mental state of a woman
whom he had attended in her last illness [283].
It is a question of fact to be decided at the trial, by the
Court, whether a witness offered as an expert has the necessary
qualification [284]. And the matter cannot be referred to the decision
of the jury. The decision of the Judge at the trial will not be
interfered with by the Court, except in a clear and strong case [285].
Any one offered as an expert who cannot establish the fact of special
knowledge or skill, in the particular department which he is called
upon to illuminate, will be rejected. A Court before permitting an
expert to testify may examine him, or hear evidence, to satisfy itself
that the witness is really what he assumes to be [286]. |114|
“We find no test laid down,” says the Supreme Court of Indiana, “by
which we can determine with mathematical precision just how much
experience a witness must have had, how expert, in short, he must be,
to render him competent to testify as an expert.” But it is for the
Court to decide, within the limits of a fair discretion, whether the
experience of the proposed expert has been such as to make his opinions
of any value; mere opportunities for special observation will not be
deemed sufficient [287].
While the Court, or Judge, determines the competency of the witness to
testify as an expert, the weight to be accorded to his testimony is
for the jury to decide. The testimony of an expert is to be weighed
and tested like any other kind of evidence, and is to receive just
such credit as the jury may think it entitled to. It is intended to
enlighten their minds, not control their judgment [288]. The jury are
not bound by the opinions of medical experts: they may weigh their
opinions like any other evidence. They may act against the greater
number of opinions and in favour of the fewer; for the opinion of one
expert may, on account of his greater knowledge and experience on
the subject, or from his giving further details of the case, or more
probable reasons for his opinions, be of greater value to the jury than
the opposite opinions of several [289].
Ordronaux holds that a physician, although confessedly possessing the
ordinary experience of his profession, may _quoad_ some particular
problem in medical science not be an expert in the best and most
critical sense of the term. _Non omnes omnia possumus._ Once received
as an expert, |115| the maxim “_Cuilibet in sua arte perito credendum
est_,” must be applied, and he cannot be contradicted by any unskilled
person [290].
In 1869, the Chief Justice of the Kentucky Court of Appeal well
said, that “the opinions of experts not founded on science, but on
a mere theory of morals or ethics, whether given by professional or
unprofessional men, are wholly inadmissible as evidence.” Hence the
opinion of even physicians that no sane man in a Christian country
would commit suicide, not being founded on the science or phenomena
of the mind, but rather a theory of morals, religion and future
responsibility, is not evidence [291].
In the matter of expert testimony, as in other matters, the law does
not recognize any particular school of medicine to the exclusion of
others. The popular axiom that doctors differ is as true now as ever
it was, and so 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” [292].
The physician called to give evidence as an expert should understand
at the outset that he is not called to express any opinion upon the
merits of the case, but only on some questions of science raised by
the facts proved; that he has no concern in the issue of the trial,
and that whichever side calls him he is in no wise the witness—much
less the advocate—of that side. He is truly an adviser of the Court,
an _amicus curiæ_, rather than a party interested in the result of the
trial. Balbus in his commentaries on the code says, “_Medici proprie
non sunt testes, sed est magis judicium quam testimonium_.” Experts,
no matter on what |116| they testify, simply supply data, as to
whose competency, relevancy and weight, the Court is to judge, and
as to which the Court is finally to declare the law. Where the facts
testified to by experts are undisputed, and when they are the results
of a particular science or art, with which such experts are familiar,
then the Court accepts such facts, and declares the law that therefrom
springs; where the facts are disputed then the jury is to determine
where the preponderance of proof lies. But when the testimony of the
expert touches either law or speculation, psychology or ethics, then
such testimony is to be received as mere argument, which if admissible
at all is to be treated simply as if addressed to the judgment of the
Court [293].
In his examination in chief an expert may not only give his opinion
itself, but also the grounds and reasons of it; in fact it has been
held that it is his duty to state the reasons of his opinion and the
facts on which it is based, and if it is not sustained by them it is
entitled to little weight [294].
The opinion of a medical man is admissible upon, the condition of the
human system at any given time; the nature and symptoms of disease;
the nature and effects of wounds; the cause of death; the cause or
effect of an injury; the character of the instrument with which a
wound was produced; the effect of a particular course of treatment;
the likelihood of recovery; the mental condition of a person; and on
similar subjects. For instance, where one was indicted for endeavouring
to procure abortion, the opinion that the woman was pregnant at the
time is relevant [295]. Where the question was whether a certain |117|
blow was sufficient to cause death; or whether a wound and fracture
on the head was caused by a fall; or whether the fractures of the
skull were caused by a gun; or whether a gun-shot wound caused death;
the opinions of physicians were held admissible [296]. The opinion of
medical experts will be received upon the question as to whether an
abortion has been performed, or whether certain drugs are abortives, or
certain instruments adapted to produce an abortion [297]. Experts may
testify, after having made a chemical analysis of the contents of the
stomach, as to the presence of poison in the body; and, without such
analysis of a mixture, a chemist may speak of its ingredients [298].
Those accustomed to make chemical and microscopic examinations of
blood and blood stains may speak as to whether certain stains are
made by human or other blood. So, too, they may speak as to the ink
in questions as to handwriting [299]. So, too, they may be asked their
opinions touching the permanency of any injury forming the subject of
an action. Also, in an action for damages against a railway company, a
physician may be asked at what period after the injury the plaintiff
would be most likely to improve, if he were going to recover at
all [300]. Where Barber sued Meriam for injury to his wife, and she had
been treated professionally for some weeks by Dr. H., the opinion of
another physician as to the effect of Dr. H.’s treatment was considered
|118| admissible [301]. And so in a case of malpractice a medical man
may be asked whether the practice pursued was good practice [302].
He may be asked as to the nature and properties of the medicines
employed by another physician in the case in question; also, as to the
practice with regard to consultations; also, whether, in his opinion, a
patient’s death was or was not the result of neglect or want of skill
on the part of the attending physician [303]. But he cannot be asked
his opinion as to the general skill of the physician on trial; nor the
general reputation of the school which the doctor in trouble attended;
nor can he say whether, from all the evidence in the case, the
defendant was guilty of malpractice, for that is the question for the
jury; nor can he say whether a physician has honorably and faithfully
discharged his duty to his professional brethren [304].
It has been held that a medical witness may give his opinion upon new
and hitherto unknown cases whenever he swears that he can form such an
opinion, even though at the same time he should admit that precisely
such a case had never before fallen under his observation, nor under
his notice in the books. The man of science is distinguished from the
empiric in nothing more than in not relying on specifics, and also not
waiting for the exact similitudes in things material and immaterial
before forming a judgment as to their similarity [305].
It must always be remembered that medical men, when called as skilled
witnesses, may only say what, in their judgment, would be the result
of certain facts submitted to their consideration, and may not give an
opinion as to |119| the general merits of the case, nor on the very
point which the jury has to determine, nor on things with which a jury
may be supposed to be equally well acquainted [306].
As a recent writer puts it, a medical man cannot testify as to matters
not of skill in his profession, nor conclusions, nor inferences which
it is the duty of the jury to draw for themselves. For instance, it
was held that in a trial for murder the opinions of the surgeons as
to the probable position of the deceased, when he received the blows
which caused his death, are incompetent. The Judge said that he was
not aware that surgeons were experts in the manner of giving blows
of the description in question, or determining how the head must be
placed so as most conveniently to receive them [307]. Whenever the
subject matter of the enquiry is of such a character that it may be
presumed to lie within the common experience of all men of common
education, moving in ordinary walks of life, the rule is that the
opinions of experts are inadmissible, as the jury are supposed—in all
such matters—to be entirely competent to draw the necessary inferences
from the facts spoken of by the witnesses [308]. Nor was the opinion of
a medical witness admitted where the question, in an action for libel,
was whether a physician in refusing to consult with the plaintiff
had honorably and faithfully discharged his duty to the medical
profession. The Judge said, the jury having all the facts before them
were as capable of forming a judgment upon that point as the witness
himself. Nor can an expert give an opinion of the opinion of another
expert [309]. A medical man is considered an expert on the subject of
the |120| value of medical services [310]. But he is not so considered
when the question is one as to the amount of damages for a breach of
contract not to practise physic in a certain town [311].
The rule as to excluding experts from the court room during the
examination of witnesses has been laid down, in England, thus: “Medical
or other professional witnesses, who are summoned to give scientific
opinions upon the circumstances of the case, as established by other
testimony, will be permitted to remain in court until this particular
class of evidence commences; but then, like ordinary witnesses, they
will have to withdraw, and to come in one by one, so as to undergo
a separate examination.” And in the United States the principle is
similarly stated [312].
|121|
CHAPTER IX.
EXPERTS IN INSANITY CASES.
The opinion evidence of medical men in questions of insanity is not,
as a rule, looked upon with any very great degree of favor by the
courts who have to decide upon the competency, relevancy and weight
of the opinions uttered. Chapman, C.J., of Massachusetts, in charging
a jury said, “While they afford great aid in determining facts,
it often happens that experts can be found to testify to anything
however absurd” [313]. In another insanity case another Judge remarked,
“Experience has shown that opposite opinions of persons professing to
be experts may be obtained to any amount, and it often occurs that
not only many days but many weeks are consumed in cross-examinations
to test the skill and knowledge of such witnesses, and to test the
correctness of their opinions,” (this was the case to a great degree
in the well known Guiteau prosecution,) “thus wasting time and
wearying the patience of both Court and jury, perplexing, instead
of elucidating, the question involved in the issue” [314]. As to the
perplexing instead of elucidating, a writer of the highest authority
gives the following, “In a case of alleged child murder a medical
witness, being asked for a plain opinion of the cause of death, said,
that it was owing to ‘atelectasis and a general engorgement of the
pulmonary tissue’.” And in a trial for an assault a |122| surgeon,
in giving his evidence, informed the Court “that on examining the
prosecutor, he found him suffering from a severe contusion of the
integument under the left orbit, with great extravasation of blood and
ecchymosis in the surrounding cellular tissue, which was in a tumefied
state, and there was also considerable abrasion of the cuticle.” The
Judge said, “You mean, I suppose, that the man had a bad black eye.”
“Yes.” “Then why not say so at once” [315].
Redfield, C.J., in his book on Wills, says, “Experience has shown both
here and in England that medical experts differ quite as widely in
their inferences and opinions as do other witnesses. This has become
so uniform a result with the medical experts of late that they are
beginning to be regarded much in the light of hired advocates, and
their testimony as nothing more than a studied argument in favor of
the side for which they have been called. So uniformly has this been
proved in our experience that it would excite scarcely less surprise to
find an expert called on one side testifying in any particular in favor
of the other side, than to find the counsel upon either side arguing
against their clients and in favor of their antagonists” [316].
A Lord Chancellor once remarked that his experience taught him that
there were very few cases of insanity in which any good came from the
examination of medical men. Their evidence sometimes adorned a case,
and gave rise to very agreeable and interesting scientific discussions,
but after all they have little or no weight with the jury. And Mr.
Justice Davis, of the Supreme Court of Maine, after stating that he
thought juries far more trust-worthy than experts on the subject of
insanity, said, “if there is any kind of testimony that is not only of
no value but |123| even worse than that, it is in my judgment that of
medical experts. They may be able to state the diagnosis of the disease
more learnedly, but upon the question whether it had, at a given time,
reached such a stage that the subject of it was incapable of making a
contract, or irresponsible for his acts, the opinion of his neighbors,
if men of good common sense, would be worth more than that of all the
experts in the country” [317]. There is scarcely a single hypothesis
as to responsibility (on the part of the insane), no matter how wild,
which, among the large number of experts who have concerned themselves
with this branch of study, has not its advocates. So says Wharton
in his valuable treatise on Mental Unsoundness [318]; or as Cicero
elegantly put it long ago, “_nihil tam absurde dici potest, quod non
dicatur ab aliquo philosophorum_” [319].
Considering these things, one is not surprised at Campbell, C.J., in
the Bambridge case, saying to three medical men who had recorded their
opinions in favor of the insanity of the testator: “You may go home to
your patients, and I wish you may be more usefully employed there, than
you have been here;” and to the jury he remarked, “We have had during
the trial the evidence of three medical witnesses, and I think they
might as well have stayed at home and attended to their patients.”
On the other hand, Shaw, C.J., said, “such opinions (as to sanity,
etc.) when they come from persons of experience, and in whose
correctness and sobriety of judgment just confidence can be had, are
of great weight, and deserve the respectful consideration of a jury.
But the opinion of a medical man of small experience, or of one who
has crude and visionary notions, or who has some favorite theory to
|124| support is entitled to very little consideration. The value of
such testimony will depend mainly upon the experience, fidelity and
impartiality of the witness who gives it” [320]. And Chief Justice
Gibson speaks with just emphasis of the the deference due, in their
own department, to the knowledge obtained by men of a subject with
which they have grappled all their lives [321]. The Supreme Court of
Texas declared, “The opinions of medical men (on questions of insanity)
are received with great respect and consideration, and properly so.”
The Supreme Court of Pennsylvania says, “It is well settled that
the knowledge and experience of medical experts is of great value
in questions of insanity.” Equally strong are the utterances of the
Court of Appeals of West Virginia and the Supreme Court of North
Carolina [322].
Where the point in question is the sanity of a person, the opinion
of a medical man on the subject is, of course, admissible when that
opinion is drawn from personal observation. This is the rule both in
England and the United States [323]. But a medical man may also give his
opinion on this subject, even though he has no knowledge of the person
whose sanity is in question [324]. It has been suggested, that when a
physician is asked his opinion on the facts stated by other witnesses,
he should be first examined as to the particular symptoms of insanity;
and as to whether all or any, and which of the circumstances spoken
of by the witnesses upon the trial are to be regarded as |125| such
symptoms; then inquire of him whether any and what combination of these
circumstances would, in his opinion, amount to proof of insanity [325].
It has been held to be improper to ask a medical witness whether the
person, whose sanity was in question, possessed sufficient capacity
to make a will, or to transact business, as these are matters of law,
depending on the nature of the business [326]. In England such witnesses
can only speak as to the state of mind, not as to the responsibility
of a prisoner; this latter point is for the jury under the direction
of the Judge [327]. So, on the plea of insanity at the time of making a
contract, the opinion of the medical man who gave the certificate on
which the defendant was confined as insane at or about the time, is
only evidence for the jury, who must judge of the grounds upon which it
was formed [328].
In England, an expert cannot be asked, after being present at the whole
trial, whether the defendant was insane, or whether the act complained
of was an insane act, because these are questions for the jury and
the witness must not be placed in the jury’s place; but he may be
asked whether such and such appearances, proved by other witnesses,
are in his judgment symptoms of insanity [329]. The particular facts
proven by other witnesses may be taken and the expert may be asked
“assuming these facts to be true, do they in your judgment indicate
insanity on the part of the defendant at the time the alleged act was
committed?” [330]. |126|
As a rule the Court should not allow an expert to give his opinion
upon facts proved by a witness unless he has heard all the testimony
of the witness, because the entire testimony may be necessary in order
to enable him to form an opinion in regard to the subject matter of
inquiry [331].
Where the facts are disputed, experts can only be questioned as to
their opinion of a party’s sanity on a hypothetical case, or as to
certain designated facts existing in the case supposing them to be
true [332].
The mode in which this hypothetical question is to be put has been much
considered. In England, in the celebrated _Macnaghten_ case in answer
to an inquiry of the House of Lords, whether “a medical man conversant
with the disease of insanity, who never saw the prisoner previously
to the trial, but who was present during the whole trial and the
examination of the witnesses, can be asked his opinion as to the state
of the prisoner’s mind at the time of the commission of the alleged
crime; or his opinion whether the prisoner was conscious at the time
of doing the act, that he was acting contrary to the law; or whether
he was labouring under any and what delusion at the time?” The twelve
judges replied, “We think the medical man, under the circumstances
supposed, cannot in strictness be asked his opinion in the terms above
stated, because each of these questions involves the determination
of the facts deposed to, which it is for the jury to decide, and the
questions are not mere questions upon a matter of science in which
case such evidence is admissible. But where the facts are admitted or
not disputed, and the question becomes substantially one of science
only, it may be convenient to |127| allow the question to be put in
that general form, though the same cannot be insisted on as a matter of
right [333].”
In Massachusetts, Chief Justice Shaw said, “The proper question to be
put to the professional witness is this—If the symptoms and indications
testified to by the other witnesses are proved and if the jury are
satisfied of the truth of them, whether in their opinion the party was
insane, and what was the nature and character of that insanity; what
state of mind did they indicate; and what they would expect would be
the conduct of such person in any supposed circumstances?” [334].
In another well known case, the Judge said to the jury, “It is not the
province of the expert to draw inferences of facts from the evidence,
but simply to declare his opinion on a known, or hypothetical state
of facts, and therefore the counsel on each side have put to the
physicians such states of fact as they deem warranted by the evidence,
and have taken their opinions thereon. If you consider any of these
states of facts put to the medical witnesses are proved, then the
opinions thereon are admissible evidence, to be weighed by you,
otherwise their opinions are not applicable to the case” [335].
The opinions of both experts and non-experts should have weight
according to their opportunities and qualifications for examination of
the state of mind of the person whose sanity is in question. First of
all will be the family, or the physician who has attended the patient
through the disease which is supposed to have disabled his mind; next
are those who, without special learning on the subject, have had the
best opportunities for judging—the members of his family and those
whose intimacy in the family, have given them opportunities of seeing
the patient at all times and |128| noticing the alienation of his
mind; and last, come those who only occasionally and at intervals have
seen him, and whose chances of studying his moods have been small [336].
It has been held, in Massachusetts, that a physician who had not made
insanity a special subject, and who, when consulted in such matters,
always called in a specialist, is not competent to give an opinion on
an hypothetical case put to him, unless he was the person’s attending
physician; then his opinion is received, as it is his duty to make
himself acquainted with the peculiarities, bodily and mental, of a
person who is the subject of his care and advice [337]. And where a
physician had for more than thirty years been exclusively treating the
insane, he was not permitted to testify, as an expert, to the mental
capacity of a person—not previously insane—who was in the last stages
of disease [338].
One not an expert may give an opinion, founded on observation, as to
whether a person is sane or insane, notwithstanding the general rule,
that persons not medical men cannot give their opinions as to the
existence, nature or extent of disease in any one. The exception was
first introduced in regard to the subscribing witnesses to a will, who
were permitted to speak as to the testator’s state of mind; it has
now been extended to all cases where the witness’ acquaintance with
the party whose sanity is in dispute, or his means of observation,
are sufficient to enable him to express his opinion as to the mental
condition. The Courts of Massachusetts, Maine, New Hampshire and
Texas, however, still adhere to the old rule and admit the evidence of
non-experts only in cases of wills [339].
|129|
CHAPTER X.
DEFAMATION.
No man may disparage the reputation of another. Every one has a right
to have his good name maintained, unimpaired. Words which produce any
perceptible injury to the reputation of another are called defamatory:
and if they are false they are actionable. False and malicious
defamatory words, if in printing, writing, pictures or signs, and
published, constitute a libel; if spoken, a slander. A caricature may
be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a
rebus, an anagram or an allegory, or even ironical praise.
Defamatory matter, whether published in the form of libel or slander,
is actionable when it imputes a criminal offence (or a contagious or
infectious disorder) or affects the plaintiff injuriously in his lawful
profession, trade or business, or in the discharge of a public office,
or generally when it is false and malicious, and its publication
causes damage to the plaintiff either in law or in fact. Defamatory
matter, the publication of which tends to degrade or disparage the
plaintiff, or which renders him ridiculous, or charges him with want of
honesty, humanity or veracity, or is intended to impair his enjoyment
of society, fortune or comfort, is actionable as libel, but not as
slander, unless special damage be proved [340]. |130|
The person defamed by a libel has not only a civil remedy to recover
damages but he may also, in some cases, proceed criminally by way of
information or indictment and have the defamer punished as an offender
against the state. If he proceeds by information he must in general
waive his right to bring a civil action; but he may sue for damages
after the offender has been convicted upon an indictment. An action
for libel must be brought within six years; and an action for slander
within two years, unless the words spoken are actionable only by reason
of special damage, in which case the action may be brought at any time
within six years.
Whenever a special kind of knowledge is essential to the proper
conduct of a particular profession, denying that a man possesses such
special knowledge will be actionable if he belongs to that particular
profession, but not otherwise. Thus to say of a physician, “Thou art
a drunken fool and an ass. Thou wert never a scholar, nor even able
to speak like a scholar,” is actionable, because no man can be a good
physician unless he be a scholar [341]. Although one may with impunity
say of a Justice of the Peace, “He is a fool, an ass and a beetle
headed justice” [342]. So to say, of a midwife, “Many have perished
for her want of skill;” or, “She is an ignorant woman, and of small
practice and very unfortunate in her way; there are few she goes to
but lie desperately ill, or die under her hands;” is actionable [343].
Or of an apothecary, “He is not an apothecary; he has not passed any
examination. Several have died that he had attended, and there have
been inquests held upon them” [344]. Although one may safely say of a
Justice of the Peace, “He is a blood sucker, and sucketh blood.” |131|
It is actionable to say of a person in his professional character, “He
is no doctor; he bought his diploma for $50” [345]. Any words imputing
to a practising medical man, misconduct or incapacity in the discharge
of his professional duties, are actionable _per se_. Thus, it is
actionable, without proof of special damage, to accuse one of having
caused the death of any patient through his ignorance or culpable
negligence, as to say of a physician, “He killed my child by giving it
too much calomel,” or, “He hath killed J. S. with physic, which physic
was a pill;” or, “He was the death of J. P.; he has killed his patient
with physic; it is a world of blood he has to answer for in this
town through his ignorance; he did kill a woman and two children at
Southampton; he did kill J. P. at Petersfield;” or, as an American did,
“Dr. S. killed my children; he gave them teaspoonful doses of calomel,
and it killed them. They did not live long after they took it. They
died right off the same day” [346].
So it is to say of an apothecary, “He poisoned my uncle; I will have
him digged up again, and hang him,” or, “He killed my child; it was
the saline injection that did it;” or, “I was told he had given my
child too much mercury, and poisoned it; otherwise, it would have got
well” [347].
So it is actionable to say of a surgeon and accoucheur, “He is a bad
character; none of the medical men here will meet him.” As such words
impart the want of a necessary qualification for a surgeon in the
ordinary discharge of his professional duties; or, “Dr. Tweedie has
honorably and faithfully discharged his duties to his |132| medical
brethren in refusing to act or consult with Ramadge (a physician),
and we hope every one else will do the same” [348]. Or to call a
practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a
mountebank,” or to say of him, “Thou gavest physic which thou knewest
to be contrary to the disease,” or “Thou art no good subject, for thou
poisonedst A. F.’s wound, to get more money of him.” Under the New York
Statutes, a homœopathic physician may maintain an action for being
called a quack [349]. And it seems that an action will lie, without
averment of special damages, for slander imputing to a physician, that
he has taken advantage of his character as a physician to abuse the
confidence reposed in him, and commit acts of criminal conversation
with a patient [350].
In the case of libel, any words will be presumed defamatory which
expose the plaintiff to hatred, contempt, ridicule or obloquy, which
tend to injure him in his professional trade, or cause him to be
shunned or avoided by his neighbours. Thus, to advertise falsely that
certain quack medicines, “consumption pills,” were prepared by a
physician of eminence, is a libel upon such physician [351].
Whenever a medical man brings forward some new method of treatment and
advertises it largely as the best, or only cure for some particular
disease, or for all diseases at once, he may be said to invite
public attention, and a newspaper writer is justified in warning the
public against such advertisers, and in exposing the absurdity of
their professions, provided he does so fairly and with reasonable
judgment [352]. |133| A medical man, who had obtained a diploma and the
degree of M.D., from an American College, advertised in England most
extensively a new and infallible cure for consumption. The _Pall Mall
Gazette_ published a leading article on these advertisements, in which
they called the advertiser a quack and an impostor, and compared him to
scoundrels “who pass bad coin.” This was considered as overstepping the
limits of fair criticism, and a verdict was given for the plaintiff,
with damages, one farthing [353]. So where the editor of the _Lancet_
attacked the editor of a rival paper, _The London Medical and Physical
Journal_, by rancorous aspersions on his private character, not fairly
called for by what the plaintiff had done as an editor, the plaintiff
recovered a verdict of £5 [354].
On the other hand, it is not actionable to say of a surgeon, “He
did poison the wound of his patient,” without some averment that
this was improper treatment, for it might be proper for the cure of
it. Nor to say of an apothecary, “He made up the medicine for my
child wrong, through jealousy, because I would not allow him to use
his own judgment” [355]. Nor to charge a physician or surgeon with
“malpractice,” if it appear that the word was not used or understood
in a technical sense; and to charge a physician or surgeon with mere
want of skill, or with ignorance or neglect, is not actionable _per
se_, though untrue, unless the charge be of gross want of skill, or the
like, so as to imply general unfitness [356].
Nor is it actionable to call a person who practises medicine or
surgery, without legal qualification, a “quack or an |134| impostor,”
for the law only protects lawful employment [357]. Even though a medical
man be duly registered in Great Britain, still, if he is practising
in a colony which requires registration without complying with the
colonial law, he may safely be called “a quack,” “a charlatan,” “a
scoundrel not to be entrusted with the lives of people” [358].
Words imputing immoral conduct, profligacy or adultery, even when
spoken of one holding an office or carrying on a profession or
business, are not actionable unless they “touch him” in that office,
profession or business. Thus, if adultery is alleged of a clergyman,
it will be actionable, because if the charge were true, it would be a
ground for degradation or deprivation, as it would prove him unfit to
hold his benefice, or to continue the active duties of his profession.
But if the same words are spoken of a physician, they will not be
actionable without proof of special damage, as they do not necessarily
affect the plaintiff in relation to his trade or profession [359].
Nor unless the words are spoken in connection with the professional
duties of the plaintiff will an action lie for the words, “He is so
steady drunk, he cannot get business any more;” or “He is a twopenny
bleeder” [360].
It is no libel to write of a physician that he is in the habit of
meeting homœopathists in consultation [361].
Where the plaintiff considers that the words spoken touch him in his
profession or trade, he must always aver in the pleadings that he was
carrying on the profession of a physician or surgeon, or the trade
of a druggist, at the |135| time the words were spoken. Sometimes
this is admitted by the slander itself, and if so, evidence is of
course unnecessary in proof of this averment. But in other cases,
unless it is admitted on the pleadings, evidence must be given at
the trial of the special character in which the plaintiff sues. As a
rule, it is sufficient for the plaintiff to prove that he was engaged
in the profession or trade, without proving any appointment thereto,
or producing a diploma or other formal qualification. For the maxim
_omnia presumuntur rite esse acta_ applies. But if the very slander
complained of imputes to the medical practitioner that he is a quack or
an impostor, not legally qualified for practice; or if the plaintiff
aver that he is a physician and has duly taken his degree, then the
plaintiff at the trial must be prepared to prove his qualification
strictly by producing his diploma or certificate. In some cases the
mere production of the diploma will not be sufficient proof of the
plaintiff’s having the degree, but it may be necessary to prove that
the seal affixed is the seal of a university having power to grant
degrees; or in the case of the production of a copy of the diploma,
that it has been compared with the original [362].
Whether or no the words were spoken of the plaintiff in the way of his
business is a question for the jury to determine at the trial. There
should always be an averment in the statement of claim, that the words
were so spoken, and it should also be shewn in what manner the words
were connected by the speaker with the profession [363].
Medical practitioners are of course equally liable with other men to
an action for defamation, in respect of any |136| false and malicious
communication, whether oral or written, made by them to the damage of
another, in law or in fact; circumstances, however, frequently arise
where, from the nature of their employment, it becomes their duty or
interest to make some communication prejudicial to the character or
conduct of another, and in such cases, where the occasion on which
the communication was made rebuts the presumption of malice, (which
the law infers from such a statement,) such communication is said
to be privileged, and therefore, in order to sustain an action for
defamation, the plaintiff must prove that the defendant was actuated by
express or actual malice—that is, malice independent of the occasion
on which the communication was made. The legal canon is, that a
communication made _bona fide_, upon any subject matter in which the
party communicating has an interest, or in reference to which he has
a duty, is privileged, if made to a person having a corresponding
interest or duty, although it contains criminatory matter, which
(without this privilege) would be slanderous and actionable. This
applies, moreover, though the duty be not a legal one, but only a
moral or social duty of imperfect obligation, and also where the
communication is made to a person not in fact having such interest
or duty, but who might reasonably be, and is supposed by the party
making the communication to have such interest or duty [364]. Even
where the evidence of duty is not present to the mind, but the speaker
is impelled by a sense of propriety, on which he does not pause to
reflect, and which he refers to no special motive, nevertheless, if
his conduct in speaking the words be within the occasion of interest
or of duty which is capable of protecting, the communication will be
considered privileged [365].
Words spoken by the medical officer of a college concerning |137|
the meat furnished to the institution; and words used by the medical
attendant of a poor-law union about the wine supplied to the inmates,
are privileged, in the absence of proof of actual malice [366]. A
statement made by a physician that an unmarried woman is pregnant is
not a privileged communication, unless made in good faith to one who is
reasonably entitled to receive the information [367].
|138|
CHAPTER XI.
RELATIONS WITH PATIENTS.
It is a well settled doctrine that where one occupies a position
which naturally gives him the confidence of another, or which in any
way gives him an influence, or an undue advantage over the other,
transactions between them require something more to give them validity
than is necessary in other cases. The mere fact of the existence of
such a relationship as naturally creates influence over the mind will
lead the courts to infer the probability of undue influence having
been exerted. Confidence has been held to imply the opportunity for
influence, and when established, dispenses with any more direct
proof of influence. In such cases the _onus_ is cast upon the person
occupying such a relationship to establish the perfect fairness and
equity of the transaction. He must shew that the other acted after full
and sufficient deliberation and with all the information that it was
material for him to have, in order to guide his conduct, and that he
had either independent and disinterested advice, or as ample protection
as such advice could have given him [368]. _Rhodes_ v. _Bates_ [369] lays
it down that the donor must have had competent and independent advice.
The relation between a medical man and his patient is one in which
the probability of undue influence is inferred; |139| and so in
dealings with their patients the acts of physicians are watched with
great jealousy; not because the Court blames and discountenances the
influence flowing from such relation, but because it holds that this
influence should be exerted for the benefit of the person subject to
it, and not for the advantage of the person possessing it [370]. The
discontinuance of the relationship is only material if the influence
has ceased with the relation; and the relation does not necessarily
cease because the patient has not medicine actually administered to him
at the time [371].
Where a surgeon and apothecary obtained from a patient, eighty-five
years old, an agreement to pay him £25,000, in consideration of past
medical services, duly charged and paid for, and the promise of future
medical and surgical assistance until death without charge, and kept
the matter concealed until after the death of the patient, the Court,
on the prayer of the patient’s executor, ordered the medical man to
give up the agreement to be cancelled. So, when an octogenarian patient
conveyed by deed of gift a property worth £1,000 to his physician,
who was also his intimate friend, and the son of his benefactor, the
Court set aside the deed for fraud. (In this case the consideration
named in this deed was not the true one.) And even where a patient
gave to his surgeon an annuity of £100 for the surgeon’s life, in
consideration that he would live with him and give him the benefit of
his professional assistance during his (the donor’s) life, it being
shown that the surgeon had been told by an eminent physician, just
before the deeds were drawn, that the patient could not recover or
live long, and that the surgeon himself, about the same time, had said
the patient could not live more than a month or so; the Court held
the instruments could not be |140| maintained [372]. A patient, aged,
feeble, deaf and of very weak mind, bestowed all his estate on the
attending physician, who lived with him, and had controlling influence
over him, for an extremely trifling compensation. The transaction was
set aside, the Court saying: “Owing to the relation which the parties
sustained towards each other, the deed was presumptively the result
of undue influence, and therefore _prima facie_ void for that reason.
It has been repeatedly declared by learned chancellors that the mere
relation of patient and medical adviser was sufficient to avoid the
contracts of the former made with the latter during the continuance of
such relation” [373].
A security given by an old man for £262 10_s._ to a dentist, in
consideration of his old teeth being kept in order and new ones being
supplied during the remainder of his life, had to be given up [374].
And if a man pays an exorbitant bill to a doctor, the Court will grant
him relief; and it will be no answer to his asking his money back to
say that he intended to be liberal, unless such intentions can be
clearly shown [375]. Even a sale to a patient by the medical man under
whose care he is will be set aside if at an exorbitant price, and the
purchaser has had no independent advice [376].
But where the evidence showed that the patient’s own attorney prepared
the papers, that he had independent advice, and understood what he
was doing, and exercised his free will, and that the medical man had
long attended him, the Court refused to set aside the deed, although
the patient was eighty years of age [377]. And although a |141| gift
made to a physician may be voidable, because of his standing in a
confidential relation to the donor, a patient, yet, if after the
confidential relation has ceased to exist, the donor intentionally
elects to abide by the gift, and does, in fact, abide by it, it cannot
be impeached after his death, even if it is not proved that the patient
was aware that the gift was voidable at his election [378].
There is, of course, nothing in the relation of medical attendant and
patient which can prevent the one from entering into a contract with
the other, where the transaction proceeds openly and fairly, and the
relation of physician and patient has, in reality, no bearing upon
it [379]. In the case of a sale by a patient to a physician, where there
was no proof of inadequacy of price, the transaction was sustained [380].
A strong case must be made to set aside a will on the ground of undue
influence. Influence is not sufficient: there must be such a degree
of influence as deprives the testator of the proper mastery over
his faculties [381]. To invalidate a will, on the ground of undue
influence, it must be shown that it was practised with respect to the
will itself, or so contemporaneously with the will, or connected with
it, as by almost necessary presumption to affect it; and flattery
and obsequiousness, however degrading, will not constitute such an
undue influence as will affect the acts of a capable testatrix [382].
Many wills made in favour of medical men by their patients have been
sustained, although disputed, and that even in cases where the patients
have been aged, infirm women, with impaired minds [383]. |142|
A physician, however, may fail to obtain the benefits which a
grateful patient has wished him to have under a will, if—as was done
in one case—after a long attendance on a patient, he thinks fit, when
she is almost on her deathbed, to prepare and procure the execution
of a will by which he becomes the principal object of her bounty,
to the exclusion of her near relatives; and to do this without the
intervention of any solicitor or other person competent to give her
advice, and to guard her against undue influence; for in such a case
the interests of the public require that his conduct should be regarded
by Courts of Justice with the utmost jealousy [384]. In another case,
it was said that although there is no rule of law which forbids a
man to bequeath his property to his medical attendant, yet it is not
a favourable circumstance for one in such a confidential position,
with respect to a patient labouring under a severe disease, to take a
large benefit under such patient’s will, more particularly, if it be
executed in secrecy and the whole transaction assumes the character
of a clandestine proceeding, and in such a case the _onus_ will lie
very heavily upon the party benefited to maintain the validity of the
will [385].
Clairvoyant physicians may also get into trouble. An action was brought
against one to set aside a marriage and a conveyance of property
worth $25,000. The patient was old, feeble, deaf, childish and a firm
spiritualist. The clairvoyant was a woman who pretended to be very
modest and bashful and able to cure the deafness. After a course of
treatment, mainly by manipulation, she told the old man that the
spirits said that they must be married within two weeks, or something
dreadful “would step in between them.” |143| By misrepresentations
concerning her character and her friends she won the old man and his
property. After the honeymoon the patient came to his senses, and
prayed to get back his liberty and possessions, because of the fraud
used. The Court granted his prayer [386].
To promise a cure is unprofessional, and to obtain money on the faith
of such a promise is sometimes dangerous. Brown falsely represented
himself to A., an ignorant negro, to be a practising physician, and
that he had restored sight to the blind. He persuaded A. that his
(A.’s) house was infected with poison, and that it was in the bed
occupied by his granddaughter, that she was poisoned, and that he could
remove the poison if he was paid for so doing. A. gave him $22 to
remove it. The Court held that Brown had been guilty of obtaining money
under false pretences [387].
A physician should take all possible care to prevent the spread
of smallpox or any other contagious disease, and use all such
precautionary measures as may appear desirable. So, where the paper
upon the walls of a room in which there had been smallpox patients had
become so soiled and smeared with the smallpox virus as to make its
removal necessary, a physician or other attendant may order the paper
to be torn down; and the landlord cannot successfully maintain an
action against the physician for doing this [388].
Apparently a surgeon may retain the limbs he cuts off a patient, upon
the ground that parts of the body when severed become dead, and at
common law there is no property in a dead human body. The point was
once contested in Washington [389]. |144|
A surgeon who attends a duel, although to save by his skill if
possible the lives therein imperilled, will be held guilty of aiding
and abetting the principal offender in the event of death ensuing [390].
If a medical practitioner wilfully injures a patient he is liable to
be indicted for an assault, and if death ensue from the injuries so
inflicted he may be indicted for murder. And this is so even though
the patient might have submitted at the time from the supposition
that the treatment was for his good. Having or attempting to have
carnal connection with a female patient under pretence of treating her
medically is an assault [391]. Making a female patient strip naked,
under pretence that the defendant, a medical practitioner, cannot
otherwise judge of her illness, if he himself takes off her clothes,
contrary to her wishes, is an assault. In this case the jury found that
the defendant had stripped the girl wantonly, and not from any belief
that it was necessary [392].
Where a physician takes an unprofessional unmarried man with him to
attend a case of confinement, and no real necessity exists for the
latter’s assistance or presence, both are liable for damages; and it
makes no difference that the patient, or her husband, supposed at the
time that the intruder was a medical man, and therefore submitted
without objection to his presence; or that the intruder accompanied the
physician reluctantly on a dark and stormy night to carry a lantern
or umbrella, and some instruments, and that there was only one room
in the house. The Court remarked: “Dr. De May therefore took an
unprofessional young unmarried man with him, introduced and permitted
him to remain in the house of the plaintiff, when it was apparent that
he could hear at least, |145| if not see, all that was said and done,
and, as the jury must have found under the instructions given, without
either the plaintiff or her husband having any knowledge or reason to
believe the true character of the third party. It would be shocking
to our sense of right, justice and propriety even to doubt that for
such an act the law would afford an ample remedy. To the plaintiff
the occasion was a most sacred one, and no one had a right to intrude
unless invited, or because of some real and pressing necessity which it
is not pretended existed in this case. The plaintiff had a legal right
to the privacy of her apartment at such a time, and the law secures to
her this right by requiring others to observe it and to abstain from
its violation. The fact that at the time she consented to the presence
of Scattergood, supposing him to be a physician, does not preclude her
from maintaining an action, and recovering substantial damages upon
afterward ascertaining his true character. In obtaining admission at
such a time and under such circumstances, without fully disclosing
his true character, both parties were guilty of deceit, and the wrong
thus done entitles the injured party to recover the damages afterward
sustained, from shame and mortification, upon discovering the true
character of the defendants.” The action was brought by the wife [393].
If physicians, who have certified to the insanity of a person, have
not made the enquiry and examination which the statute requires, or if
their evidence and certificate in any respect of form or substance are
not sufficient to justify a commitment to an asylum, the authorities
should not commit, and if they do it is their fault and not that of the
physicians, provided the latter have stated facts and opinions truly
and have acted with due professional care and skill [394]. |146|
If a medical man takes upon himself the responsibility of imprisoning
a person on the ground of insanity, upon mere statements made to him
by others, he will be liable to an action, and also for an assault,
unless he can indeed show that the party imprisoned was insane at
the time [395]. He is not liable for an assault if he has signed a
certificate under the Lunacy Acts and has done nothing more towards
causing the confinement of the alleged lunatic [396]. A medical man
or other person may justify an assault where it is committed for the
purpose of putting a restraint upon a dangerous lunatic in such a state
that it is likely he may do mischief to some one [397].
In Ontario, except under order of the Lieutenant-Governor, no one
can be admitted into a lunatic asylum without the certificate of
three medical men, each attested by the signatures of two subscribing
witnesses. Their certificates must state a personal and separate
examination, and that after due enquiry the patient was found insane;
and the physicians must also specify the facts upon which they formed
their opinion of the insanity. In England, except in the case of
paupers, two certificates are required [398].
The practice of abortion is forbidden by the oath of Hippocrates. The
act is recognized as a crime in almost every code of medical ethics:
its known commission has always been followed by ignominious expulsion
from medical fellowship and fraternity. At Common Law a child _en
ventre sa mere_ is not considered a person the killing of whom is
murder; but if one, intending to procure abortion, causes a child to be
born so soon that it cannot live, and |147| it dies in consequence,
it is murder [399]. And it is murder if one, attempting to procure
abortion, either by means of drugs or instruments, cause the death of
the woman [400].
In most civilized countries it is now either a felony, or grave
misdemeanor, to attempt to procure the miscarriage of a woman by any
means; or to supply or procure any thing knowing that it is intended
to be unlawfully used or employed to procure a miscarriage [401]. In
some States the crime of abortion may be committed at any stage of
pregnancy [402]. The thing prescribed must be noxious in its nature, but
it is not necessary to prove that it will produce miscarriage [403].
The burden of shewing that the use of instruments to produce abortion
was necessary to save the life of the woman is on the accused [404].
It is an indictable offence for a physician, or any one else,
unlawfully and injuriously to carry along or to expose in a public
highway, on which persons are passing, and near to the habitations
of others, any person infected with the small-pox, or any contagious
disorder; and it is for the accused to shew that the object of the
carrying or exposure was lawful [405].
In England, since 1840, it has been an indictable offence to innoculate
for the small-pox [406]. So, too, it has been in Canada for a number of
years [407]. |148|
It has been held in the State of Alabama, that where a special
prohibitory Act does not except the practising physician from its
operation, he is liable if he administers intoxicating bitters to his
patient, but not for using liquors necessary in compounding medicine
manufactured and sold by him. The application of any other rule,
it was said by the Court, would be fraught with difficulty, if not
impracticability. So, too, in Kansas [408].
Any registered practitioner who has been convicted of felony shall
forfeit his right to registration, and the Medical Council may cause
his name to be erased from the register; and if any one who has been
convicted of felony presents himself for registration the registrar may
refuse registration. But one’s name cannot legally be removed from the
register without notice and an opportunity of being heard [409].
A person who has met with personal injuries must exercise the same
degree of care in the employment of a physician and surgeon, and in
procuring and submitting to proper medical treatment, as a prudent and
reasonable man would in any other matter; for those persons liable for
the original injury will not be responsible for the further damage
arising from the improper selection of a physician [410].
If a family doctor, or the surgeon of a company or society, on leaving
home, recommends in case of need, some other physician, who is not,
however, in any sense in his employment, it does not make him in any
way liable for injuries arising from the latter’s want of skill [411].
|149|
CHAPTER XII.
DISSECTION AND RESURRECTION.
A knowledge of the causes and nature of sundry diseases which affect
the human body, and of the best methods of treating and curing such
diseases, and of healing and repairing divers wounds and injuries to
which the human frame is liable, cannot be acquired without the aid of
anatomical examination. So saith the preamble to the British Anatomy
Act of 1832. The chief hindrances to the pursuit of the study of
anatomy have arisen from ignorance and superstition. A prejudice has
prevailed in all nations against the violation of the human body after
death. Even now, only philosophers like Jeremy Bentham are willing to
have their bodies dissected by their friends. Simple association of
thoughts causes the remains of a dead kinsman or friend to be treated
with respect and tenderness; in the same way, the horror of death
attaching to anything connected with the dead, and the religious idea
that the soul outlives the body, and continues in a ghostly way to
retain a connection with its old habitation of clay, have led to the
respectful disposal of the corpse among most nations.
The Ptolemy princes Philadelphus and Euergetes, who enabled their
physicians to dissect the human body, and prevented the prejudices of
ignorance and superstition from compromising the welfare of the human
race, were far in advance of their times. Long after their day, the
Koran denounced as unclean the person who touched a corpse, and |150|
the rules of Islamism still forbid dissection; the old Moslem doctors
only found opportunities of studying the bones of the human body in
the cemeteries. Not until the days of Henry VIII. did the law make any
provision for the cultivation and practice of the art of dissection.
In 1540, more perhaps to strike terror into malefactors, than from
any enlightened notion of forwarding knowledge, the Legislature gave
permission to the masters of the Mystery of Barbers and Surgeons of
London to take annually four persons, put to death for felony, for
anatomies, and to make incision of the same dead bodies, or otherwise
to order the same, after their discretions, at their pleasure, for
their further insight and better knowledge, instruction, insight,
learning, and experience, in the science or faculty of surgery [412].
Elizabeth, in 1565, made a similar grant to the College of Physicians,
that they, observing all decent respect for human flesh, “might dissect
the four felons.” By 25 Geo. II. cap. 37 (1752), the bodies of all
murderers executed in London and Westminster were to be given to the
surgeons to be dissected and anatomised. But the legal supply of human
bodies for anatomical examination still continued insufficient fully to
provide the means of knowledge; and in order to furnish the necessary
subjects, divers great and grievous crimes and murders were committed,
the money paid, being the incentive. So, in 1832, the Anatomy Act [413]
was passed. This Act proves clearly that Parliament regarded anatomy as
a legal practice, and it provides for the licensing of those practising
anatomy, allows any executor or other person, having lawful possession
of any dead person (and not being an undertaker, etc.), to hand over
the body for dissection (respect, however, being had to |151| the
wishes of the deceased or his known relatives). Inspectorships of
schools of anatomy were likewise established.
In Canada, the bodies of convicts who die in a penitentiary, if
unclaimed by the relatives, may be delivered to the professors of
anatomy in any medical college, or to an inspector of anatomy [414].
The first defender of the faith, Henry VIII., the illustrious Elizabeth
of most famous memory, and the enlightened James, had several statutes
passed in which the disinterring of the dead is mentioned, but they
were chiefly enactments against witchcraft, conjuration, the use
of dead men’s bones, and all sorts of sorceries. The parliament of
James solemnly enacted, “that if any person should consult, covenant
with, entertain, employ, feed or reward any evil and wicked spirit,
to or for any intent or purpose, or take up any dead man, woman, or
child out of his, her, or their grave, or any other place where the
dead body rested, or the skin, bone, or any other part of any dead
person, to be employed, or used, in any manner of witchcraft, sorcery,
charm, or enchantment * * every such offender, his aiders, abettors,
and counsellors, should suffer death as felons, and should lose the
privilege and benefit of clergy and sanctuary” [415]. This philosophical
enactment graced the statute book until the ninth year of George II.
While these statutes against sorcery were in force, and the Judges
still imbued with the superstitious spirit of the age, the presumption
was very strong that bodies disinterred were removed for purposes
of enchantment or witchcraft, and resurrection-men and students of
anatomy, as their aiders and abettors, were in imminent jeopardy of
suffering as felons; but as the belief in sorcery grew weaker the
prospect of these men grew brighter, and they were relieved from the
great danger that they ran. |152|
Under the laws of Constantine, a woman could without blame repudiate
her husband, if he was guilty of violating the tombs of the dead; and
we are told that the Ostrogoths allowed divorce for this same reason.
And among the Franks, one who took the clothing from a buried corpse
was banished from society, and none could relieve his wants until the
relations of the deceased consented [416]. As long ago as the tenth
year of James I., at the assizes in Leicester, a man was tried for
stealing winding sheets. Sir Edward Coke tells the matter thus: “One
William Hain had in the night digged up the graves of divers several
men and of one woman, and took the winding sheets from the bodies and
buried the bodies again; and I advising hereupon, for the rareness of
the case, consulted with the Judges at Sergeants’ Inn on Fleet street,
when we all resolved, that the property of the sheets was in the
executors, administrators, or other owner of them, for the dead body is
not capable of any property, and the property of the sheets must be in
somebody, and according to this resolution he was indicted of felony in
the next assizes; but the jury found it but petit larceny, for which he
was whipped, as he well deserved.” These learned people thought that
if a winding sheet had been gratuitously furnished by a friend the
property remained in the donor. For, quoth they, the winding sheet must
be the property of somebody; a dead body, being but a lump of earth,
hath no capacity; also, it is no gift to the person, but bestowed
on the body for the reverence toward it, to express the hope of the
resurrection; also, a man cannot relinquish the property he hath to his
goods unless they be vested in another [417]. Subsequently, lawyers have
generally concurred in these opinions; the coffin, too, is the property
of the personal representative of the deceased [418]. |153|
A still more interesting question arises as to who owns the corpse.
It has been generally held that there is no property in it. Blackstone
remarks, that, although the heir has a property in the monuments
or escutcheons of his ancestor, he has none in his body or ashes.
According to the law of England, after the death of a man, his
executors have a right to the possession and custody of his body
(although they have no property in it) until it is properly buried. A
man cannot dispose of his body by will or any other instrument [419].
A contract for the sale of a corpse, even to doctors, will not be
enforced; it cannot be made an article of merchandise [420]. The
relatives have the right of interring the body, and when this right
is once exercised they have no further interest in it than to protect
it from injury [421]. In Indiana, the Courts have diverged somewhat
from the beaten track, and held that the surviving relatives are
entitled to the corpse in the order of inheritance as property, and
that they have a right to dispose of it as such, subject to whatever
burial regulations are reasonable and proper for the public health and
advantage [422].
The English Anatomy Act, as has been seen, gives the executor or other
person having the lawful possession of the body of any deceased person
power to permit it to be anatomically examined. In England, the earlier
writers on criminal law say nothing of the taking of a body from the
grave, except that it is not theft. East, however, calls it a great
misdemeanor; and there have been several convictions for this as an
offence at Common Law. Doubtless the belief that it was an offence at
Common Law was nearly connected |154| with the idea of the bodies
being used for the dark purposes of the necromancer, and it would
appear that no distinct authority upon the abstract point has been
found in ancient legal records [423]. It is still an indictable offence,
punishable with fine and imprisonment, or both [424]. And this even
though the body has been taken in the interest of science, and for the
purpose of dissection; or even if the motives of the offender were
pious and laudable. In _Lynn’s_ case—(Lynn was indicted for entering a
burying ground, taking a coffin up, and carrying away a corpse for the
purposes of dissection)—it was urged that the offence was cognizable
only by the ecclesiastical courts; but the Judges of the King’s Bench
said that common decency required that a stop should be put to the
practice; that it was an offence cognizable in a criminal court as
being highly indecent, and _contra bonos mores_, at the bare idea alone
of which nature revolted; that the purpose of taking up the body for
dissection did not make it less an indictable offence. They refused to
stay proceedings, but inasmuch as Lynn might have committed the deed
merely through ignorance, they only fined him five marks. Since then
others have been more severely dealt with. And in a very recent case,
Stephen, J., said, “The law to be collected from these authorities
seems to me to be this:—The practice of anatomy is lawful, though it
may involve an unusual means of disposing of dead bodies, and though it
certainly shocks the feelings of many persons; but to open a grave and
disinter a dead body without authority is a misdemeanor, even if it is
done for a laudable purpose.”
It is, also, an indictable offence in many of the States to disinter a
corpse, unless the deceased in his life-time had |155| directed such a
thing, or his relatives consent to it; and that the resurrecting is for
the purpose of dissecting does not improve matters [425]. In New York,
removing dead bodies “for the purpose of selling the same,” or “from
mere wantonness,” is punishable by both fine and imprisonment [426]. And
in New Hampshire and Vermont such offences bring upon those convicted,
fines, whipping, and imprisonment, as the Court may see fit.
In Massachusetts, unclaimed dead bodies, and those of persons killed
in duels, or capitally executed, are assigned to the medical schools
of the State. The New York Act of 1789 must be considered as the
first American Anatomy Law. The first section prohibits the removal
of dead bodies for dissection, and the second section permits the
Courts, in passing capital sentence, to award the body to the surgeons
for dissection. Enactments similar to that of the New York Act, sec.
1, have been passed by the following States: Alabama, Arkansas,
California, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas,
Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode
Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and
Wisconsin. The second section of the New York Act has developed into
the Acts of twenty-four States, which have thus legalized dissection,
and most of them have made specific provision for the dissection of the
bodies of certain deceased criminals, chiefly murderers; these States
are Alabama, Arkansas, California, Colorado, Connecticut, Georgia,
Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan,
Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York,
Ohio, Pennsylvania, Tennessee, Vermont, and Wisconsin. Some of these
States |156| have made no other provision for anatomical study beyond
that mentioned [427]. We have already referred to the Canadian Act on
this subject. In addition, the Ontario Act provides that the bodies of
persons found dead, publicly exposed, or who at time of death had been
supported in and by some institution receiving government aid (except
lunatics in provincial asylums), shall, unless the person so dying
otherwise direct, or the _bona fide_ friends or relations claim it, be
given to public medical schools in the locality, or to public teachers
of anatomy or surgery, or private medical practitioners, having
three or more pupils, for whose instruction such bodies are actually
required. Such medical practitioners must give security for the decent
interment of the bodies after they have served their purposes; and
then a written authority to open a dissecting room is given by the
Inspector of Anatomy of the city, town, or place. The Inspector’s duty
is to keep a register of bodies given up for dissection; a register
of the qualified practitioners desiring bodies; to make an impartial
distribution of the bodies in rotation; to visit the dissection rooms,
and to report to the police magistrate or chief municipal officer, any
improper conduct on the part of students or teachers [428].
A person may be found guilty of the offence of disinterring a corpse,
even though he was not actually present at the body-lifting, if with
the intention of giving aid and assistance he was near enough to afford
it, if required [429].
Besides the danger he runs of being brought before a criminal tribunal,
the body-lifter incurs the risk of civil proceedings being taken
against him. It is true, as Blackstone says, the heir has no property
in the body or ashes of |157| his ancestors; nor can he bring any
civil action against such as indecently, at least, if not impiously,
violate and disturb their remains when dead and buried; but that
learned commentator goes on to remark: “The person, indeed, who has
the freehold of the soil, may bring an action of trespass against such
as dig and disturb it” [430]. This has been clearly established in a
case in Massachusetts, where a father sued for the removal of the
remains of his child, and recovered a verdict for $837 in an action
of trespass _quare clausum fregit_. Mr. Justice Forster, in giving
judgment, remarks that a dead body is not the subject of property,
and after burial it becomes part of the ground to which it has been
committed, earth to earth, dust to dust, ashes to ashes. The only
action that can be brought is trespass _quare clausum_. Any one, said
the Judge, in actual possession of the land may maintain this against
a wrong-doer. The gist of the action is the breaking and entering, but
the circumstances which accompany and give character to the trespass
may always be shown either in aggravation or mitigation. Acts of
gross carelessness as well as those of wilful mischief often inflict
a serious wound to the feelings, when the injury done to property is
comparatively trifling, and we know of no rule of law which requires
the mental suffering of the party complaining, caused by the misconduct
of the wrong-doer, to be disregarded [431].
Willcock, in his “Laws relating to the Medical Profession,” in his
tenth chapter, when considering the lawfulness or unlawfulness of
taking bodies for the purpose of dissection, says: “The whole question
must depend upon the proper answer to these inquiries. Is it a
violation of property? |158| Is it a personal injury to any individual?
Or is it an injury to the public? Every lawyer who has mentioned
the subject has admitted that there is no violation of property in
respect of the corpse itself, which is necessary to constitute the
removal an offence; and Blackstone has distinctly stated that the only
property violated is the grass and soil of the land wherein the body
was interred, in respect of which the person may bring his action
of trespass, and the law has not provided any punishment as for an
offence. It is equally clear that it is not an injury to any person;
for the shrewd lawyers of Coke’s time determined that the body was
no person but a lump of clay; and the only injury which can give a
right of action to—that is which amounts to a violation of any legal
right of—a relative or master, is such as may be said to recoil upon
him, by causing him expense, labor, or loss of valuable service. The
unpleasantness which may arise from an attack upon prejudices, however
intimately blended with good feeling and delicacy of sentiment, is
ranked by the court with that class of wrongs which are technically
designated _damna absque injuria_.”
“In _Lynn’s_ case, the judges assumed to answer the third question,
that is to assert that it is an injury to the public. Society is not
injured by the disinterment of the dead for the purposes of science,
for it could hardly exist without such a sacrifice of fastidiousness;
society is not insulted by the secret abstraction of the corpse from
the vermin which crowd to pollute it, and they who so curiously seek
the remains of those they hold dear, behind the veil of science, would
do well to pry for one moment into the secrets of the sepulchre. They
alone are the violators of every sentiment of delicacy and benevolence
who insult the disconsolate relatives with the tale of the robbery and
the pursuit, and with the foul spectacle of dismemberment they may have
at length discovered.” |159|
It would appear that in a proper case the Court, in the interests
of justice, will compel the exhuming and examination of a dead body
which is under the control of a plaintiff, if there is strong reason
to believe that without such examination a fraud is likely to be
accomplished, and the defendant has exhausted every other method known
to the law of exposing it. However, such an order should be made
only upon a strong showing to that effect. “It would be a proceeding
repugnant to the best feelings of our nature, and likely to be in many
cases so abhorrent to the sensibilities of the surviving relatives,
that they would prefer an abandonment of the suit to a compliance
with the order.” Thus spake the court in a case where the order for
exhuming was asked for and refused as not being justified under the
circumstances. The action was on a policy of insurance, and the defence
was, that the insured had falsely warranted that he had never received
any serious personal injury, whereas his skull had been fractured in
boyhood, and had been healed by trephining. To prove this, the company
proposed to disinter his body, after the suit had been pending eighteen
months, upon the sole testimony of his physician, that the deceased
had said that he had been told of such an accident and operation. The
counsel for the plaintiff called the proposal “revolting,” and said
that to break the signet of the grave, and take from its resting place
the sacred property of relatives to gratify the corporation’s mercenary
curiosity, would be worse than Shylock’s demand [432].
|160|
CHAPTER XIII.
DENTISTS.
The need of dentists existed long before dentistry. The Preacher knew
of the inconveniences which arise when the grinders are few. Marcellus,
about B. C. 380, gave two receipts for toothache. One is, “Say,
‘argidam, margidam, sturgidam;’” the other is, “Spit in a frog’s mouth
and request him to make off with the complaint.” These are given in
Glenn’s “Laws affecting Medical Men.”
In England, in the tenth and eleventh centuries, priests and monks
were the dentists of the day. Afterwards, a decree of the Council of
Tours having forbad clergymen undertaking or engaging in any bloody
operation, all surgical practice fell into the hands of blacksmiths and
barbers. The latter soon became the more important class, and in 1461
(as we have seen already), Edward IV. incorporated them as “The Freeman
of the Mystery or Faculty of Surgery.” By degrees other persons assumed
to practise pure surgery, and these two bodies, in 1560, were united by
Act of Parliament, and became “The Masters or Governors of the Mystery
and Commonalty of the Barbers and Surgeons of London.” By the third
section of this Act [433], because of fear of the spread of contagious
diseases, any one in the City of London using barbery or shaving, was
forbidden to |161| occupy any surgery, letting of blood, or any other
thing belonging to surgery, drawing of teeth only excepted. In those
days one wishing to find a drawer of teeth had to resort to one of
those shops where was exhibited the bandaged pole as a sign or symbol
that “all the King’s liege people there passing by might know at all
times whither to resort in time of necessity.”
Something more than a sign is now required of dental surgeons. The
Royal College of Surgeons in England has now the power to appoint
examiners for testing the fitness of persons to practise as dentists,
and to grant certificates of such fitness. To become a Licentiate of
Dental Surgery in England, it is necessary to be engaged for four years
in the acquirement of professional knowledge; to attend at a recognized
school one course of lectures, at least, in anatomy, physiology,
surgery, medicine, chemistry, and materia medica, and a second course
on the anatomy of the head and neck; one course on metallurgy, and
two on dental surgery and anatomy, dental physiology and mechanics;
to have dissected for nine months; to have taken a course of chemical
manipulation; to have attended a hospital for two or more sessions;
and to have spent three years in acquiring practical familiarity in
mechanical dentistry under a competent practitioner; and then to pass
the examination required by the board.
In Ontario, “The Royal College of Dental Surgeons” has power to appoint
a Board of Directors, who have authority to fix the curriculum of
studies to be pursued by students, to determine the period during which
they must be employed under a practitioner, to appoint the examiners,
and arrange the examinations, for those who desire to obtain a license
to practise dental surgery in the province. The Board may also confer
the title of “Master of Dental Surgery” upon any licentiate who passes
certain examinations and |162| conforms with certain regulations. The
College is composed of all those entitled to practise in the Province;
and no one who is not a member of the College can practise dentistry
for hire, gain or hope of reward, or pretend to hold, or take, or use
any name, title, addition or description, implying that he holds a
license to practise, or that he is a member of the College, or shall
falsely represent, or use any title representing that he is a graduate
of any dental college, under a penalty of $20 and costs for every
offence, to be recovered in a summary way before a magistrate, or in a
Division Court by suit. Persons contravening the Act cannot recover for
work done or materials provided. Of course, the Act does not interfere
with legally qualified medical practitioners [434].
Dentists are subject to the same rules, as to negligence, as are
physicians or surgeons [435], and if by a culpable want of attention and
care, or by the absence of a competent degree of skill and knowledge,
a D.D.S. causes injury to a patient, he is liable to a civil action
for damages, unless, indeed, such injury be the immediate result of
intervening negligence on the part of the patient himself, or unless
such patient has by his own carelessness directly conduced to the
injury [436]. The law is ever reasonable; so it only requires of a
dentist a reasonable degree of care and skill in his professional
operations, and will not hold him answerable for injuries arising
from his want of the highest attainments in his profession. The rule
is, that the least amount of skill with which a fair proportion of
the practitioners of a given locality are endowed, is the criterion
by which to judge of the professional man’s ability or skill [437].
As far as the liability is concerned, no distinction is made |163|
between those who are regular practitioners and those who are not so;
the latter are equally bound with the former to have and to employ
competent skill and attention.
A patient must exercise ordinary care and prudence [438]; so that, if
one tells the dentist to pull out a tooth, but does not say which one
is to go, and the wrong one is taken out, the sufferer has no legal
ground of complaint, unless, indeed, it is quite apparent which is
the offending member. A patient may have been a little careless and
negligent; still, if the dentist has been so very neglectful of his
duty that no ordinary care on the part of the patient would have
prevented the mistake or injury complained of, the injured party will
recover, _i.e._, recover damages for the injury received [439].
The fact that one has taken chloroform will not affect his rights
or remedies against the tooth-puller for any mistake or negligence.
The maxim _vigilantibus, non somnientibus jura subveniunt_, has
no reference to people put to sleep by anæsthetics. In New York,
two dentists undertook to extract a tooth from a patient while the
latter was under the influence of laughing gas. During the operation
the forceps slipped, and part of the tooth went down the patient’s
throat, causing coughing and vomiting for four weeks, when—in a fit
of coughing—the tooth came up, and relief followed. The patient sued
for damages, and when the case came before it, the Court said, “The
defendants (the dentists) knew that the plaintiff (the patient)
while under the influence of the anæsthetic, had no control of his
faculties, that they were powerless to act, and that he was unable to
exert the slightest effort to protect himself from any of the probable
or possible consequences of the operation which they had undertaken
to perform. He was in their |164| charge and under their control
to such an extent that they were required to exercise the highest
professional skill and diligence to avoid every possible danger;
for the law imposes duties upon men according to the circumstances
in which they are called to act. In this case, skill and diligence
must be considered as indissolubly associated. The professional man,
no matter how skilful, who leaves an essential link wanting, or a
danger unguarded in the continuous chain of treatment, is guilty of
negligence, and if the omission results in injury to the patient, the
practitioner is answerable. The quantum of evidence necessary to make
out a _primâ facie_ case of negligence is very slight in some cases,
while in others a more strict proof is required. Often the injury
itself affords sufficient _primâ facie_ evidence of negligence. * * *
There was evidence offered by the plaintiff showing, that while the
defendant drew the tooth, the forceps slipped. This fact, combined with
the unusual circumstance that the tooth went down instead of coming
up, was sufficient to carry the case to the jury upon the question
of negligence. The trial Judge held that while the affirmative was
upon the plaintiff to prove negligence, the fact that the defendants,
instead of taking the plaintiff’s tooth out, let it go down his
throat, was sufficient evidence to carry the question of negligence
to the jury, to the end that they might determine whether, in the
light of all the circumstances, the defendants had exercised the skill
and care which the exigencies of the case required. This ruling was
correct” [440].
Boyle’s case is an interesting one on the subject of the use of
chloroform. He was a street-car driver; a vicious horse by a kick threw
him from his platform, so that he hit his head against a tree-box.
He was picked up insensible and carried into a surgery; this he was
enabled to leave |165| in a couple of hours, and the following day
went to work again. In course of time he had a toothache, and went to
a Dr. Winslow’s to have it extracted, intending to take chloroform.
The chloroform was administered, but did not operate as soon as usual,
exciting rather than tranquilizing B. Insensibility, however, having
been finally obtained, the teeth were taken out, the doctor giving
the anæsthetic from time to time during the operation, as symptoms of
returning consciousness appeared. Boyle walked home shortly afterwards,
feeling, however, dizzy, and being uncertain in his gait; these
unpleasant symptoms continued even after reaching his house. The next
day, thickness of speech and numbness of one arm and side came on,
with partial paralysis. From this he was still suffering, when a jury
was called upon to say whether his state was due to the neglect of the
dentist or not. The Judge told the jury that, even if they doubted
the safety of the agent employed (chloroform), there was still a
consideration of the highest reason which they ought not to disregard.
He remarked, “All science is the result of a voyage of exploration,
and the science of medicine can hardly be said to have yet reached
the shore. Men must be guided therefore by what is probably true, and
are not responsible for their ignorance of the absolute truth which
is not known. If a medical practitioner resorts to the acknowledged
proper sources of information—if he sits at the feet of masters of high
reputation and does as they have taught him—he has done his duty, and
should not be made answerable for the evils that may result from errors
in the instruction which he has received. * * * He who acts according
to the best known authority is a skilful practitioner, although
that authority should lead him in some respects wrong. * * * If the
plaintiff was from previous circumstances predisposed to paralysis,
it might well happen that the extraction of his teeth, |166| without
the chloroform, or the use of the chloroform without the extraction,
would bring on a paralytic attack. Even if this was the case, still it
would not be just to make the defendant answerable for consequences
which he could not foresee, which were not the ordinary or probable
result of what he did. He was only bound to look to what was natural
and probable, to what might reasonably be anticipated. Unless such
guard is thrown around the physician his judgment may be clouded, or
his confidence shaken by the dread of responsibility, at those critical
moments when it is all important that he should retain the free and
undisturbed enjoyment of his faculties, in order to use them for the
benefit of the patient” [441].
In the olden time, front teeth were considered very valuable. Our
ancestors appear to have used them in fighting, and the hurting of a
man so as to render him less able in fighting to defend himself or
annoy his adversary, was considered a misdemeanor of the highest kind,
and spoken of by my Lord Coke as the greatest offence under felony. To
cut off an ear or strike off a nose was nothing to the knocking out of
a fore-tooth, for a nose or an ear is useless in a fight—doubtless they
are in the way [442]. According to that system of punishment introduced
into England by the Engles, which compensated every injury by a money
payment, a front tooth was valued highly, and one who deprived another
of such a member had to pay six shillings, while breaking a rib only
cost half as much, and shattering a thigh only twelve shillings [443].
The fact that a dentist extracts teeth for love and not for money
does not relieve him of his liability for failure to perform his
work properly [444]; and if one is foolish enough |167| to allow an
ignorant apprentice to practise on his teeth, he can still recover from
the dentist for any injuries [445]. It is a good answer to an action
brought by a dentist to recover payment for his work and labor, that
the defendant has been injured instead of benefited by the plaintiff’s
treatment, either because of his want of skill or his negligence. So,
when Mr. Gilpin went to Mr. Wainwright to have a tooth extracted, and
Wainwright gave him chloroform, and then pulled out the wrong tooth,
and Gilpin declined to pay for the performance, alleging a want of
consideration, the dentist sued for his account, but the Court gave
judgment against him [446]. If the dentist’s bill has been increased
owing to his own mistake or wrong doing—as where being employed to pull
out one tooth and insert a false one, he pulled out two, and so had to
put in two; he cannot recover for this additional amount of work. Lord
Kenyon well put this when he said: “If a man is sent for to extract a
thorn which might be pulled out with a pair of nippers, and through his
misconduct it becomes necessary to amputate the limb, shall it be said,
that he may come into a court of justice to recover fee for the cure
of the wound which he himself has caused?” [447]. To put the question
is to give the answer. In fact, in such a case as the one put, it
would appear that not only could no recovery be had for the additional
services rendered necessary by the dentist’s own want of proper care,
but the man whose grinders were thus made few would be entitled to a
further deduction from the bill for the bodily suffering and damage he
had sustained [448].
One cannot reasonably expect to have teeth as well fitted to the mouth
by art as nature. Mrs. Henry got a set of artificial ones from Dr.
Simonds; when put into her |168| mouth, she complained that they felt
odd and pained her. The plate was somewhat filed, but she was still
dissatisfied, and declined to pay the bill. It was then agreed that she
should take them away and try them for a day or two; this was done,
and again she returned them, declining to pay. The doctor then sued,
and the evidence as to whether the teeth fitted was conflicting. One
testified that they were a good piece of work; another, that they were
a fair average piece of work; while a third said that they were nothing
extra. The Judge instructed the jury that if Simonds had used all the
knowledge and skill to which the art had at the time advanced, that
would be all that could be required of him. The verdict was for the
defendant. On an application for a new trial the court considered the
instructions erroneous and granted a new trial, saying: “that surgeons
are held responsible for injuries resulting from a want of ordinary
care and skill. The highest degree of skill is not to be expected,
nor can it reasonably be required, of all. The instruction given was
* * * * undoubtedly correct, and no more would be required of him. But,
upon legal principles, could so much be required of him? We think not.
If it could, then every professional man would be bound to possess
the highest attainment, and to exercise the greatest skill in his
profession. Such a requirement would be unreasonable” [449].
It is a dangerous thing for both parties for the dentist to try a new
instrument or a new _modus operandi_ for the first time—doing so the
Court once said was a rash act, and he who acts rashly acts ignorantly.
Using a new instrument is acting contrary to the known rule and usage
of the profession [450]. One cannot become an experimentalist except at
his own peril. |169|
A dentist, at a lady’s request, prepared a model of her mouth, and
made two sets of artificial teeth for her. In response to a letter
notifying her that they were ready, and asking when he could come and
put them in, the dentist received the following note: “My dear Sir, I
regret, after your kind effort to oblige me, my health will prevent my
taking advantage of the early day. I fear I may not be able for some
days. Yours, etc., Frances P.” Very shortly the lady died. The dentist
sued her executors for £21, but he failed to recover. The court held
that a contract to make a set of teeth is a contract for the sale of
goods, wares or merchandise within the meaning of the seventeenth
section of the Statute of Frauds; and that as by the terms of the
contract the teeth were to be fitted to the lady’s mouth, and as this,
through no default on her part, was never done, her executors were not
liable to the dentist for work done and materials provided; nor was the
letter a sufficient memorandum within the meaning of the Act referred
to. Counsel for the plaintiff and the Court seemed to differ widely
in their opinions of the artistic nature of tooth-making. The former,
arguing that the deceased had in truth contracted for the skill of the
dentist, and that the materials were merely auxiliary to the work and
labour, said this case was not to be distinguished from that of an
artist employed to paint a picture; the ivory used was of insignificant
value as compared to the skill employed. Judge Crompton, however, said:
“Here the subject matter of the contract was the supply of goods.
The case bears a strong resemblance to that of a tailor supplying a
coat, the measurement of the mouth and the fitting of the teeth being
analogous to the measurement and fitting of the garment” [451].
A similar view of the standing of a dentist was taken by the Court in
Michigan, when it held that he was a “mechanic.” The Court observed,
“A dentist, in one sense, is |170| a professional man, but, in another
sense, his calling is mainly mechanical, and the tools which he employs
are used in mechanical operations. Indeed, dentistry was formerly
purely mechanical, and instruction in it scarcely went beyond manual
dexterity in the use of tools; and a knowledge of the human system
generally, and of the diseases which might affect the teeth and render
an operation important, was by no means considered necessary. Of late,
however, as the physiology of the human system has become better
understood, and the relations of the various parts and their mutual
dependence become more clearly recognized, dentistry has made great
progress as a science, and its practitioners claim, with much justice,
to be classed among the learned professions. It is nevertheless true
that the operations of the dentist are, for the most part, mechanical,
and so far as tools are employed, they are purely so, and we could not
exclude these tools from the exemption which the statute makes, without
confining the construction of the statute within limits not justified
by the words employed” [452]. On the other hand, in Mississippi, the
Court said, “A dentist cannot be properly denominated a ‘mechanic.’ It
is true that the practice of his art requires the use of instruments
for manual operations, and that much of it consists in manual
operations; but it also involves a knowledge of the physiology of the
teeth, which cannot be acquired but by a proper course of study, and
this is taught by learned treatises upon the subject, and as a distinct
though limited part of the medical art, in institutions established for
the purpose. It requires both science and skill, and if such persons
should be included in the denomination of ‘mechanics,’ because their
pursuit required the use of mechanical instruments and skill in manual
operation, the same reason would include general surgeons under the
same denomination, because the |171| practice of their profession
depends in a great degree upon similar instruments and operative skill;
nor could such a pursuit properly be said to be a trade” [453].
False teeth have been considered necessaries for a wife. One Andrews
had a conversation with Gilman, a dentist, as to the latter furnishing
the former’s wife with a plate of mineral teeth, and he agreed to pay
for certain other dental services rendered to Mrs. A. The plate was
furnished while Mr. and Mrs. A. were living together, and it was quite
suitable to the former’s circumstances and station in life; he saw it,
knew whence it came, raised no objection to it, still he declined to
pay for it. The Court, however, held him liable, not only because the
wife being permitted to retain the plate, and the other circumstances,
showed her authority to make the purchase, but also on the ground that
the teeth were some of those necessaries wherewith a husband is bound
to furnish his wife [454].
A dentist must not take any unfair advantage of his patient. Some
thirty years ago, one Captain Simpson, a very old seaman and a
pensioner in Greenwich Hospital, gave a bill of exchange, payable
eight months after date, for £262 10s. to one Davis, a London dentist,
purporting to be for value received. Davis said, the real bargain was
that he should during the whole of the Captain’s life attend to his
teeth, and supply him with new ones from time to time. He also said
that a new set of teeth would cost from £30 to £50. The bill was in the
handwriting of D.; it was given in his house when no third person was
by, and it was never heard of until after the captain’s death, which
took place before it was due. There was no writing as to the teeth.
The executors of Simpson declined to pay, whereupon Davis handed the
note over to a creditor of his own, |172| who sued both parties.
The executors filed a bill in chancery, impeaching the document for
fraud, and asking that it might be delivered up to them. The Court
thought that it was quite impossible for any reasonable being to draw
any inference from the materials before it, but that it was a case of
fraud—nay, a gross fraud, and the decree was made as asked [455]. Sir
Launcelot Shadwell thought that the case had points of resemblance to
that of _Dent_ v. _Bennett_ [456], in which a medical man bargained for
a very large sum of money to attend a person of advanced years until
death; but in that case the doctor had to attend to the whole human
body, not merely to a particular part of it.
One dentist must not imitate too closely the sign or card of a fellow
practitioner. One Colton alleged that he had purchased from a Dr. G.
Q. Colton the right to use the name “Colton Dental Association” in
connection with the use of nitrous-oxide gas to alleviate pain in
the extraction of teeth, and that he used the same in advertisements
and prominently displayed it on signs; that the defendant, who had
been in his employment, left him, opened dental rooms in the same
street, issued cards announcing that he was “formerly operator at the
Colton Dental Rooms,” and extracted teeth without pain by the use of
nitrous-oxide gas, and put a sign to the same purport over his door,
but the words “formerly operator at the,” upon cards and sign, were
in small and almost illegible letters, while the words “Colton Dental
Rooms” were very conspicuous; the signs were very similar in shape,
size, &c., and were hung on the same side of the street, in the same
manner, and might readily be mistaken the one for the other, especially
by suffering patients impatient for relief. An injunction against the
defendant’s cards and signs was granted [457]. |173|
And where Morgan and Schuyler, two dentists, dissolved partnership,
S. bought M.’s interest in the fixtures and in the lease of the
room, and continued business therein. M. removed his name from the
sign, but S. replaced it, and put above, in letters so small as to
be nearly imperceptible, his own name with the words “successor to.”
The agreement of dissolution did not prohibit M. from engaging in the
business, so he opened an office therefor in another part of the city.
He then applied to the Court to restrain his late partner from the
use of his name as mentioned. He was successful in his action. But
the Court thought that S. would have kept within his rights if he had
merely described himself as “late of” the firm [458].
|174|
CHAPTER XIV.
DRUGGISTS.
A druggist, the Supreme Court of Louisiana says, means “one who sells
drugs without compounding or preparing them: and so is a more limited
term than apothecary [459].”
A commission merchant, dealing principally in alcohol, is not a
druggist, within the meaning of the Massachusetts’ Act, regulating the
sale of alcohol by druggists [460]; and although whiskey may be sold by
druggists in comparatively small quantities as medicine, and doubtless
a great many people so take it, still it was held that fifty barrels of
whiskey remaining in a bonded warehouse at the time of his death would
not pass under the will of a wholesale and retail druggist bequeathing
his stock of medical drugs, etc. The Court considered fifty barrels of
whiskey wholly disproportionate to the ordinary stock of medicine and
drugs kept on hand by the testator—too much sack for the bread [461].
One may be an apothecary or druggist although he does not actually
compound his medicines [462].
In the early days in England, the grocers, or poticaries, who formed
one of the trade guilds of London, united with their ordinary business
the sale of such ointments, simples |175| and medicinal compounds as
were then in use. In the days of Henry VIII., the medical department
of the grocers’ trade being greatly increased, shops were established
for the exclusive sale of drugs and medicinal and all kinds of
chemical preparations. We have a graphic description of one of these
apothecaries about the days of “Good Queen Bess,” in the words of the
prince of English dramatists:
——I do remember an apothecary,
And hereabouts he dwells, which late I noticed
In tatter’d weeds, with overwhelming brows,
Culling of simples: meagre were his looks,
Sharp misery had worn him to the bones,
And in his needy shop a tortoise hung,
An alligator stuff’d, and other skins
Of ill-shaped fishes: and about his shelves
A beggarly account of empty boxes,
Green earthen pots, bladders and musty seeds,
Remnants of pack thread and old cakes of roses
Were thinly scattered to make up a show.
ROMEO AND JULIET, Act. V., SC. 1.
Until 1868, any person whatever might open what is called a chemist’s
shop in England, and deal in drugs and poisons. In that year, however,
the Pharmacy Act was passed, which prohibits any person engaging in
the business of, or assuming the title of, Chemist and Druggist, or
dispensing chemicals or drugs, unless he be registered under that Act.
And to be registered one must pass an examination in Latin, English,
arithmetic, prescriptions, practical dispensing, pharmacy, materia
medica, botany and chemistry.
Under the Ontario Act [463] there is a College of Pharmacy, managed
by a Pharmaceutical Council who grant certificates of competency to
practise as pharmaceutical chemists, prescribe the subjects on which
candidates are to be |176| examined, and arrange for the registration
of chemists. No one, save those registered or their employeés,
is authorized to compound prescriptions of legally authorized
medical practitioners. The Act, however, does not apply to medical
practitioners. But, save as aforesaid, no one can retail, dispense,
or compound poisons, or sell certain articles named, or assume or use
the title of “Chemist and Druggist,” or “Chemist,” or “Druggist,” or
“Pharmacist or Apothecary,” or “Dispensing Chemist or Druggist,” unless
he has complied with the Act.
The Code Napoleon recognizes two classes of vendors of drugs and
medicines, apothecaries and druggists. The former, who are assumed to
be pharmaceutically educated, are alone allowed to sell compounded
medicine, the latter who are classed with grocers are only permitted to
sell drugs of a simple character in bulk and at wholesale [464]. In the
United States, wherever statutes do not otherwise direct, apothecaries
and druggists are put upon the common law footing of provision vendors,
and may sell in any quantities articles in which they deal.
A druggist is held to a strict accountability in law for any mistake
he may make in compounding medicine or selling his drugs. By the
statute law of England it is declared to be the duty of every person
using or exercising the art or mystery of an apothecary to prepare
with exactness, and to dispense, such medicines as may be directed for
the sick by any physician [465]. And by the same Act, for the further
protection, security, and benefit of George the Third’s subjects it was
declared, that if any one using the art or mystery of an apothecary,
should deliberately or negligently, unfaithfully, fraudulently or
unduly make, mix, prepare or sell any medicines, as directed by any
prescription signed by any |177| licensed physician, such apothecary
shall, on conviction before a Justice of the Peace, unless good cause
be shown to the contrary, forfeit for the first offence £5, for second,
£10, and for third he shall forfeit his certificate. But apart from any
statute, whenever a druggist or apothecary (using the words in their
general sense) sells a medicine, he impliedly warrants the good quality
of the drugs sold; and besides that, he warrants that it is the article
that is required and that it is compounded in every prescription
dispensed by him _secundum artem_. Like the provision dealer, the
pharmaceutist is bound to know that the goods he sells are sound,
_i.e._, competent to perform the mission required of them, and being so
presumed to know, he warrants their good qualities by the very act of
selling them for such. The rule, “Let the buyer beware,” does not apply.
In some way Fleet and Simple got cantharides mixed with some snake
root and Peruvian bark. Unfortunately Hollenbeck, requiring some of
this latter mixture, bought this that these druggists had, took it as
a medicine, and in consequence suffered great pain, and had his health
permanently impaired. He sued for damages, and recovered a verdict for
$1,140. The defendants asked for a new trial, but the Court refused it
saying, “Purchasers have to trust to a druggist. It is upon his skill
and prudence they must rely. It is his duty to know the properties of
his drugs, to be able to distinguish them from one another. It is his
duty so to qualify himself, or to employ those who are so qualified,
to attend to the business of compounding and vending medicines and
drugs, as that one drug may not be sold for another; and so that, when
a prescription is presented to be made up the proper medicine, and none
other, be used in mixing and compounding it. The legal maxim should be
reversed, instead of _caveat emptor_ it should be _caveat venditor_,
_i.e._, let him be certain that he does not sell |178| to a purchaser
or send to a patient, one thing for another, as arsenic for calomel,
cantharides for, or mixed with snake root and Peruvian bark, or even
one innocent drug calculated to produce a certain effect, in place of
another sent for and designed to produce a different effect. If he does
these things he cannot escape civil responsibility upon the alleged
pretext that it was an accidental or an innocent mistake. We are asked
by the defendants’ attorneys in their argument, with some emphasis,
if druggists are in legal estimation, to be regarded as insurers. The
answer is, we see no good reason why a vendor of drugs, should in his
business be entitled to a relaxation of the rule which applies to
vendors of provisions, which is, that the vendor undertakes and insures
that the article is wholesome [466].”
The general customer is not supposed to be skilled in the matter of
drugs, but in the purchase he must rely upon the druggist to furnish
the article called for; and in this particular business the customer
who has not the experience and learning necessary to a proper vending
of drugs, will not be held to the rule that he must examine for
himself, it would be but idle mockery for the customer to make the
examination when it would avail him nothing. On the contrary, the
business is such that in the very nature of things, the druggist
must be held to warrant that he will deliver the drug called for and
purchased by the customer [467].
It is the duty of the druggist to know whether his drugs are sound or
not, and it is no answer to his want of knowledge to say, that the
buyer had opportunities for inspection, and could judge for himself of
the quality of goods [468].
If a druggist miscompounds a medicine, or intentionally deviates from
the formula, he commits a tortious act, and |179| if any injury
arises to another through his ignorance or neglect he is liable. Even
if a physician writes a prescription wrongly it is expected that the
druggist will know enough to detect the error, and whether he does so
or not he still compounds it at his peril. For one man’s negligence
or omission of duty is no palliation of another’s, and under the
doctrine of joint liability the apothecary or druggist who compounds,
knowingly or not, a noxious prescription, commits a joint tort with the
physician who writes it [469]. And in an action against a druggist for
injury through the negligence of his clerk in selling sulphate of zinc
for Epsom salts, it is no defence to say that the subsequent medical
treatment was negligent [470].
A wholesale druggist is liable in the same way as a retail, when he
supplies substances notoriously dangerous to health or life, and
he impliedly warrants the articles to be as represented by their
conventional designation, and if they are not so, he is liable for all
damages that may ensue from his misrepresentation [471].
If a druggist affixes to a medicine, or drug, a label bearing his name
and stating it to have been prepared by him, he makes the warrant only
more notorious, and by so doing (inasmuch as it is an invitation to
the public to confide in his representation), is ever after estopped
from denying responsibility for any injury which may have arisen out
of defects in its quality, or errors in its composition. So long as
the label is attached, it is an affirmation of the good quality of
the article and its correct composition, to every one who relies upon
it when buying. But as some articles deteriorate in time, what is
said in relation to the liability of the vendor applies only to the
article at the time it leaves |180| his hands. He only warrants its
good qualities then, but no longer, and his representation affirms
that much, and no more [472]. The subject of labels was carefully
considered in _Thomas_ v. _Winchester_ [473], where Ruggles C.J. gave
judgment. Mary Ann Thomas was ordered a dose of extract of dandelion,
her husband bought what he believed was dandelion from Dr. Foord,
druggist and physician; but it was extract of belladonna. The jar
was labelled ‘½ ℔ dandelion, prepared by A. Gilbert, No. 108 John
street, N. Y.’ Foord bought it as dandelion from James S. Aspinwall,
druggist, who bought it from defendant, a druggist, 108 John street.
Defendant manufactured some drugs and purchased others, but labelled
all in the same way. Gilbert was an assistant who had originally owned
the business. The extract in the jar had been purchased from another
dealer. The two extracts are alike in colour, consistency, smell and
taste. Gilbert’s labels were paid for by defendant and used in his
business with his knowledge and consent. A non-suit was moved for on
the ground, that defendant being a remote vendor and there being no
privity or connection between him and the plaintiff, the action could
not be sustained. The Court said, “Gilbert, the defendant’s agent,
would have been punishable for manslaughter if Mrs. Thomas had died in
consequence of taking the falsely labelled medicine. Every one who by
his culpable negligence causes the death of another, although without
intent to kill, is guilty of manslaughter [474]. This rule applies not
only where the death of one is occasioned by the neglectful act of
another, but where it is caused by the neglectful omission of a duty
by that other [475]. Although the defendant W. may not be answerable
criminally for the neglect |181| of his agent, there can be no doubt as
to his liability in a civil action, in which the action of the agent is
to be regarded as the act of the principal. The defendant’s neglect put
human life in imminent danger. Can it be said that there was no duty on
the part of the defendant to avoid the creation of that danger by the
exercise of greater caution? Or that the exercise of that caution was a
duty only to his immediate vendee, whose life was not endangered? (He
being a dealer and not a customer.) The defendant’s duty arose out of
the nature of his business, and the danger to others incident to its
mismanagement. Nothing but mischief like that which actually happened
could have been expected from sending the poison falsely labelled into
the market, and the defendant is justly responsible for the probable
consequences of the act. The duty of exercising caution in this respect
did not arise out of the defendant’s contract of sale to Aspinwall.
The wrong done by the defendant was in putting the poison unlabelled
into the hands of Aspinwall as an article of merchandise to be sold,
and afterwards used, as the extract of dandelion by some person then
unknown. The defendant’s contract of sale to Aspinwall does not excuse
the wrong done the plaintiffs. It was part of the means by which the
wrong was effected. The plaintiffs’ injury and their remedy would have
stood on the same principle if the defendant had given the belladonna
to Dr. Foord without price, or if he had put it in his shop without his
knowledge under circumstances that would have led to its sale on the
faith of the labels.”
Ordronaux says (sec. 186): It cannot be denied that had Mrs. Thomas
died, Foord would, equally with Gilbert, have been guilty of
manslaughter, since whether he intended it or no, he was doing an
unlawful act in dispensing a poison for a salutary medicine. While
then it may be proper enough to rely upon labels and warranties of
others, |182| in dealing with ordinary substances, still when it comes
to articles of a character dangerous to health or life, the law will
presume knowledge of their quality in those professionally dealing in
them, and exact a degree of skill and care commensurate with the risks
incurred. Here it is _caveat venditor_ instead of _caveat emptor_.
In Kentucky, a druggist sold croton oil instead of linseed oil for a
patient, who, in consequence of the mistake, died. His widow was held
entitled to full damages against the seller [476].
If a druggist negligently sell a deadly poison as and for a harmless
medicine to A., who buys it to administer to B., and gives B. a dose of
it as a medicine, from the effect of which he dies, a right of action
against the druggist survives to B.’s representative, notwithstanding
the want of privity of contract between B. and the druggist [477]. And
this is the rule, also, when the sale has been made by the apothecary’s
assistant [478].
Joseph George, and Emma, his wife, sued Skivington, a druggist,
alleging that he, in the course of his business, professed to sell a
chemical compound made of ingredients known only to him, and by him
represented to be fit for a hairwash without causing injury to the
person that used it, and to have been carefully compounded by him; that
Joseph thereupon bought of the defendant a bottle of this hairwash, to
be used by Emma, as the defendant knew, and on the terms that it could
be so safely used, and had been so compounded; yet the defendant had so
negligently and unskilfully conducted himself in preparing and selling
the hairwash, that it was unfit to be used for washing the hair,
whereby the plaintiff, Emma, who used it for that |183| purpose was
injured. The Court held that a good cause of action was shewn [479].
A Massachusetts apothecary sold sulphide of antimony by mistake for
black oxide of manganese. The two look alike, but differ in this, that
the preparation of manganese may be safely mixed with chlorate of
potassia for many useful purposes; but if that antimony is mixed with
that chlorate, an explosive compound is formed. The buyer, supposing
he had manganese, proceeded to mix it with potassia, having bought the
article for that purpose. But, it being antimony, the compound which
he made exploded, broke his head, damaged his hearing, and destroyed
the furniture of his laboratory. Yet the Court held that the druggist
was not chargeable with these damages, because he did not know that the
article he sold was to be mixed with potassia, and did not sell it for
that purpose. Kept or used by itself, as he sold it, it would have been
innocuous. He was not to blame for the mixing, the real cause of the
injury [480].
In England [481], a chemist and druggist was indicted for manslaughter,
but was acquitted. The deceased had been in the constant habit of
getting aconite and occasionally henbane from Noakes; on this occasion
he sent two bottles of his own, one marked, “Henbane, 30 drops at a
time.” The druggist by mistake put the aconite into the henbane bottle,
the dose of thirty drops was taken, and the customer was no more. Erle,
C.J., told the jury that although there might be evidence of negligence
sufficient for a civil action, still that they could not convict unless
there was such a degree of complete negligence as the law meant by the
word “felonious,” and that in this case he did not think there |184|
was sufficient to warrant that. But Tessymond, a chemist’s apprentice,
was found guilty of manslaughter for causing the death of an infant by
negligently giving to a customer who asked for paregoric to give to the
infant (a child of nine weeks old), a bottle with a paregoric label,
but containing laudanum, and recommending a dose of ten drops [482].
One Jones recovered against a chemist and druggist of the name of
Fay, £100 for damages, because he, Fay, gave him blue pills for the
painters’ colic, such physic being improper [483]. A man, on the
advice of a friend, went to a drug store for ten cents worth of
“black-draught,” a comparatively harmless drug, of which he intended
to take a small glassful as a dose for diarrhœa. There was evidence
given by the clerk who sold the mixture, that at the shop he asked for
“black-drops,” the defendant, the proprietor, told him that that was
poison, that the dose was from ten to twelve drops, and advised him to
take another mixture; he refused, and the clerk (by the defendant’s
direction), gave him two drachms of “black-drops” in a bottle, with a
label bearing those two words written upon it, but nothing to indicate
the dose, or that it was poison. The man took the bottle home, drank
almost all its contents, and died the next morning from the effects of
so doing. In an action brought by the representative of the deceased
to recover damages for negligent killing by the defendant, it was held
that the Courts should have submitted to the jury the question as to
whether the defendant was not guilty of negligence in failing to place
upon the bottle a label, shewing that its contents were poisonous, and
that it erred in non-suiting the plaintiff. Afterwards in giving the
judgment of the Court of Appeal, Finch, J., said, “on such a state of
facts (as sworn to by the clerk) a verdict |185| against the defendant
would not be justified. Although no label marked ‘poison’ was put upon
the phial, and granting that by such omission the defendant was guilty
of misdemeanor and liable to the penalty of the criminal law (under the
statute of the State), still that fact does not make him answerable to
the customer injured, or to his representative in case of his death,
for either a negligent or wrongful act, when towards that customer he
was guilty of neither, since he fairly and fully warned him of all and
more than could have been made known by the authorized label. * * *
If the warning was in truth given, if the deceased was cautioned that
the medicine sold was a strong poison, and but ten or twelve drops
must be taken, he had all the knowledge and all the warning that the
label could have given, and could not disregard it and then charge the
consequences of his own negligent reckless act upon the seller of the
poison. But if no such warning was given, its omission was negligence,
for the results of which the vendor was liable both at common law and
by force of the statute.” But the Court considered that the clerk being
himself the one who had been negligent stood in a position to provoke
suspicion, arouse doubt and justify watchful and rigid criticism, and
that this joined with the conduct of the deceased, developed a question
of fact rather than of law, and that the Court below was right in
saying that the case should have been submitted to the jury [484].
Under the Ontario Pharmacy Act no one can sell certain poisons named
without having the word “Poison,” and the name of the article,
distinctly labelled upon the package; and if the sale is by retail, the
name of the proprietor of the establishment where it is sold, and the
address must also be on the label [485]. |186|
Any person selling any poison, in violation of the Act, is liable to a
penalty of not more than $20 and costs for the first offence, and $50
and costs for every subsequent offence; and one-half of the penalty
goes to the prosecutor; and no one selling in violation of the Act can
recover his charges. And one wilfully or knowingly selling any article
under pretence that it is a particular drug or medicine, when it is
not, is liable to the above penalties, besides any other to which he
may be liable irrespective of the Act [486].
In Georgia it was held, that where a druggist in good faith recommended
the prescription of another person to the owner of a sick horse, who
thereupon ordered him to put it up and paid for it, the owner had no
cause of action because the medicine had injured his horse, as the
stuff was properly prepared according to the prescription [487].
In England chemists and druggists are liable to the heavy penalty of
£500 if they sell to brewers or dealers in beer anything to be used
as a substitute for malt; they are also liable for adulterating, or
selling any adulterated, medicine; and on a second offence of this
kind, the name of the offender, his abode, and his crime may be
published in the newspapers at his expense [488].
An action can be maintained by a husband against a druggist to recover
damages for selling to the plaintiff’s wife, secretly, from day to day
large quantities of laudanum to be used by her as a beverage, and which
are so used by her to the druggist’s knowledge, without the knowledge
or consent of the husband, the druggist well knowing that the same was
injuring and impairing her health, and concealing the fact of such
sales and the use thereof from the husband; |187| in consequence of
which use by her the wife became sick and emaciated, and her mind was
affected, so that she was unable to perform her duties as such wife,
and her affections became alienated from her husband, and he lost her
society, and was compelled to expend divers sums of money in medical
and other attendance upon her [489].
In some of the American Courts it has been held that a statute
forbidding the sale or keeping for sale without authority of spirituous
or intoxicating liquors does not apply to druggists who keep such
liquors only for the purpose of mixing them with other ingredients,
according to prescriptions of physicians; and also for the purpose
of manufacturing such compounds as are commonly used by druggists to
be sold as medicines for remedies for sickness and disease [490]. The
question has often come up whether a compound sold by a druggist is to
be considered an intoxicating liquor, the sale of which is illegal,
or not. The rule laid down is, that so long as liquors retain their
characters as intoxicating liquors, capable of being used as beverages,
notwithstanding that other ingredients—roots or tinctures—may have been
mixed therewith, they fall under the ban of the law; but when they
are so compounded with other substances as to lose their distinctive
characters of intoxicating liquors, and are no longer desirable for
use as stimulating beverages, they are medicine and their sale is not
prohibited [491].
In Indiana a _bona fide_ sale of intoxicating liquor by a druggist
for medicinal purposes is not a violation of the statute regulating
the sale of such liquors, although the statute contains no exception
authorizing the sale of such |188| liquors, without license, for
medicinal, chemical or sacramental purposes.
And that is the law in North Carolina, but not in Arkansas [492]. In
Iowa it was considered a breach of the law for a druggist to sell a
quart of whiskey to a stranger upon his simple statement that he was
accustomed to take it as a medicine and wanted it as such [493].
In Texas, where a druggist can only sell ardent spirits upon the
prescription of physicians in sickness, a druggist who is himself a
physician may sell to a sick patient without a prescription from anyone
else [494].
|189|
CHAPTER XV.
PARTNERS, GOODWILL, ASSISTANTS.
A partnership [495] between medical men is an association of persons,
standing to one another in the relation of principals, for jointly
carrying out the objects of their profession, with an agreement to
share the profits.
The general laws relating to partnerships apply to those of medical
men or dentists. There can be no partnership, as between themselves,
if the relationship of master and servant exists, or where there is
no joint interest. No particular form of words is needed to create
a partnership, nor need the agreement be in writing unless it is to
last for more than a year from the date. If an agreement to form a
partnership is broken an action will lie, if the terms of the agreement
be clear and distinct; but the performance of such an agreement will
not be compelled unless all the terms have been fixed and ascertained,
and a definite time for its duration agreed on.
If one has been induced to enter the partnership through the fraud
or misrepresentation of the other, the party deceived may at his
option avoid the contract. But he should act promptly on discovering
the deception. Where a surgeon was induced to enter into partnership
with, and pay a large premium to another, in consequence of |190|
misrepresentations as to the amount of income derived from the
practice, a dissolution was decreed and a return of part of the
premium [496]; and where a practitioner took a partner and a premium,
and agreed to continue practising for three years, concealing the fact
that he was suffering from a disease which soon carried him off, his
executor was ordered to return part of the premium [497].
Partners are trustees and agents for one another, and must exercise
the most perfect good faith towards one another. One cannot sue the
other for his share of the profits until the accounts have been stated
and settled between them. One medical man cannot, as a rule, bind his
partner by borrowing money, even to pay partnership liabilities, or by
making or drawing promissory notes or bills of exchange; but he may
generally do so by simple contracts, within the scope of the business.
In England, it appears that there is nothing illegal in the partnership
of a qualified and an unqualified practitioner, and that it will be
sufficient if only one member of the firm be registered [498].
A partnership may be dissolved by mutual agreement, or by the effluxion
of time. A wilful and permanent neglect of business is a ground for
dissolution; so is gross misconduct by a partner in reference to
partnership matters. Immoral conduct materially affecting the business
will be a ground for dissolution; also, insanity, or permanent
incapacity [499]. On a dissolution the partners may separately carry on
the business at any place, unless restrained by agreement. |191|
Sir John Leach considered that in a partnership, between professional
persons, upon the death of one partner the good-will of the business
belonged to the survivor, and that he was not bound to account to the
representatives of the deceased partner for it [500].
A good-will attaches to a professional, as well as to any other kind of
business, and it is and may be the subject of purchase and sale; and
although it is not computable, and the sale of it is not enforceable by
an action for specific performance if it has not been estimated, yet it
does stand on the same footing as any other business, if the parties
have fixed a determinate price upon it, or have provided any other way
of fixing its value [501]. The good-will of a medical man’s business
is an asset of his estate which his representatives can sell, and for
which they must account if it is sold. But it is not clear that the
representatives can be compelled to find a purchaser [502].
Jessel, M. R., recently asked the question, “What is the meaning of
selling a medical practice?” And in answering his query he said,
“It is the selling of the introduction of the patients of the doctor
who sells to the doctor who buys, he has nothing else to sell except
the introduction. He can persuade his patients, probably, who have
confidence in him to employ the gentleman he introduces as being a
qualified man, and fit to undertake the cure of their maladies, but
that is all he can do. Therefore, when you talk of the sale of a
non-dispensing medical practice—of course, when a man keeps what is
called a doctor’s shop, there is a different thing entirely to sell—you
are really talking of the sale of the introduction to the patients, and
the length, the |192| character and duration of the introduction, the
terms of the introduction are everything. And there is something more,
according to my experience, in cases of the sale of medical practices;
there is always a stipulation that the selling doctor shall retire from
practice either altogether or within a given distance. It is so always,
and there is also sometimes a stipulation that he will not solicit the
patients, or shall not solicit them for a given time. They are both
very important stipulations as regards keeping together the practice
for the purchasing doctor” [503].
The general rule of law is, that any contract in general restraint of
trade or industry is illegal and void as contrary to public policy;
but such contracts are valid if they operate merely as a partial
restraint, and are made for good consideration, and not unreasonable.
Whether they are reasonable or not, is for the Court, not the jury, to
say. A contract made with an assistant, or with a partner, that upon
separating from the principal, or partner, he will not practise within
a certain section of country, or for a certain time, is valid when made
in consideration of instruction to be given, or pecuniary or other
benefits to be enjoyed in consequence of the partnership. The limits
must be reasonable, and when the contract is not to practise within so
many miles of a certain place, the distance will be measured “as the
crow flies,” unless otherwise mentioned [504].
Covenants, on the part of an assistant to a surgeon and apothecary,
not to practise on his own account for fourteen years, in a certain
town, or within ten miles of the town; and not at any time to practise
within five, seven, ten, twenty miles of certain places, have been
all respectively |193| held good [505]. The comparative populousness
of the district forbidden ought not to enter into consideration at
all; and an assistant to a dentist was held bound by a covenant not to
practise in London, notwithstanding that city had a population of over
a million [506]. But a stipulation not to practise within one hundred
miles of York, in consideration of receiving instruction in dentistry,
was held void [507].
A promise, whether verbal or written, made without good consideration
by a medical man not to exercise or carry on his profession within
certain limits is void. The stipulations in a contract not to
practise are divisible, and if part of them be unreasonable, and
therefore illegal and void, the agreement is not void altogether; and
the remaining stipulations, if valid, will not be affected by the
illegality of the others [508].
The relations of medical men to their apprentices, assistants and
pupils, are, as a rule, regulated by the ordinary law of master and
servant. No particular words are needed to create the relationship
of master and apprentice, or master and assistant, the intention of
the parties will be considered, nor need the agreement be in writing,
unless it is not to be performed within a year from the making
thereof [509]. A master is liable on contracts entered into by his
apprentice or assistant, when he has authorized him to enter into any
such contract, either expressly, or by implication. For instance, if an
assistant usually orders drugs |194| on credit, and the master usually
pays, the master will be held liable to pay for any goods of a similar
nature which the assistant may get for his own and not his master’s
use [510]. The master is also, as a rule, liable to a civil action for
the wrongful acts of his assistant, unless they be beyond the ordinary
scope of his employment; the plaintiff, however, must prove that the
injury was produced by want of proper skill, where the act complained
of is said to have arisen through want of skill [511]. But the master
will not be criminally responsible for the acts of his assistant or
apprentice, if the latter has caused the death of any one, unless,
indeed, he has expressly commanded or taken part in the acts [512]. In a
case of criminal negligence, the apprentice himself is responsible; if
a party is guilty of negligence, and death results, the party guilty of
that negligence is also guilty of manslaughter.
An apprentice, or pupil, cannot be dismissed in as summary a way as an
ordinary servant for misconduct. In one case it was held that though a
person has a right to dismiss a servant for misconduct, still he has no
right to turn away an apprentice because he misbehaves; and that the
case of a young man, say of seventeen, who under a written agreement,
is placed with a medical man as “pupil and assistant,” and with whom a
premium is paid, is a case between that of apprenticeship and service;
and if such an one on some occasions comes home intoxicated, this alone
will not justify the surgeon in dismissing him. But if the “pupil
and assistant,” by employing the shop boy to compound the medicines,
occasions real danger to the surgeon’s practice, this would justify the
surgeon in dismissing him [513]. |195|
Pupils and others admitted to hear the lectures of medical men,
whether such lectures are delivered _ex-tempore_, or from memory, or
from notes, although they may go to the extent, if they are able to do
so, of taking down the whole by means of shorthand, can do so only for
the purposes of their own information, and cannot publish the lectures
for profit without the consent of the lecturer [514].
|197|
INDEX.
A.
ABORTION—
Evidence of experts in cases of, 116.
Criminality of, 146, 147.
ACCIDENT—
Payment of medical men in cases of, 40, 41.
ACCOUNT—
Must be in detail, 22.
ADVERTISING QUACKS—132, 133.
AMPUTATED LIMBS—
Ownership of, 143.
ANATOMY—
A lawful study, 154, 157, 158.
Hindrances to study of, 149, 152.
In early days, 149, 150.
Provision made for study of, in England, 150, 153.
— — — — — in Canada, 151, 156.
— — — — — in United States, 155, 156.
ANATOMY ACT OF 1832—153.
ANGUINEUM—2.
APOTHECARIES—
In England in early days, 11.
Incorporated in England, 12.
How regulated, 12.
Duties of, 12.
Fees of, 15, 16.
ARTIFICIAL TEETH.—_See_ TEETH.
ASSAULTS ON PATIENTS—
Attempting carnal intercourse with, 144.
Wantonly stripping patient, 144.
Taking layman to midwifery case, 144.
Liability for committing one as insane, 146.
ASSISTANTS AND APPRENTICES—
Rules regulating, 193.
Master liable for, civilly, 193, 194.
— not liable criminally, 194.
— may recover for services of, 20.
Misconduct of, 194.
ATTENDANCE—
Medical men neglecting, 72, 73.
Withdrawing from, 73, 74.
B.
BARBERS—
As practitioners, 4, 5, 6.
BAUNSCHEIDT SYSTEM—
Layman practising, 47.
Liability for using, 89.
BODIES—
Supply of, for dissecting, 150–156.
BODY-SNATCHING—_See_ RESURRECTION, 152–157.
BOOKS—_See_ SCIENTIFIC BOOKS, 99–105.
BOTANIC PHYSICIANS—52, 54, 88.
C.
CARELESSNESS—_See_ NEGLIGENCE.
Of patient, 67–69.
When physician criminally liable for, 85–88, 91.
In treating internal diseases, 92.
CHARACTER—
Defamation of, when actionable, 131, 134.
CHEMIST AND DRUGGIST—_See_ DRUGGISTS.
CHLOROFORM—
Care needed in using, 163–166.
CIVIL LIABILITY—
For negligence—_See_ NEGLIGENCE.
For stealing corpse, 157.
CLAIRVOYANT PHYSICIAN—
Must be licensed in Maine, 52.
Misrepresentations by, 142.
CLERICAL PRACTITIONERS—3.
COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT—
When not privileged, 93.
When privileged, 94–96.
CONSULTATIONS—23.
CONTAGIOUS DISEASES—
Precautions necessary when attending, 21, 143.
Exposing people suffering from, 147.
CONTRIBUTORY NEGLIGENCE—
Of patient, 67–69.
CORPSE—
Stealing, 152.
Who owns the, 153.
Selling, 153.
Raising, a misdemeanor, 154–156.
Civil liability for raising, 157.
Exhuming, when ordered, 159.
CRIMINAL LIABILITY—_See_ CRIMINAL MALPRACTICE.
CRIMINAL MALPRACTICE—
Definition of, 55 in, 82.
Immaterial whether physician licensed or not, 83, 84, 91.
What makes, 84, 85.
Physician acting honestly and _bonâ fide_, 89, 92.
Mistakes of druggists, 180, 181.
CRITICISM—
When justifiable, 132, 133.
CURE—
Not essential to right to pay, 20, 21.
No cure, no pay, 24.
Promising, 143.
Curious cures, 2, 3, 8.
CONTRACT—
Between physician and patient, 141.
Not to practice, 192, 193.
D.
DAMAGES—
For personal injuries, 78, 80.
Rules for determining, 78, 79.
Not recoverable against representatives, 80.
In cases of death, 80, 81.
Only one action for same cause, 81.
Against negligent druggists, 177–185.
— — dentists, 162–167.
DEATH—
Damages when negligence causes, 80, 81.
Evidence of experts as to cause of, 116–119.
DECLARATIONS OF SICK PEOPLE—
When evidence, 96–98.
DEFAMATION—129–137.
What libel, what slander, 129.
When actionable, 129, _et seq._
Civil and criminal remedies, 130.
Imputing want of knowledge, 130.
— unprofessional conduct, 131–132.
— immorality, 134.
Holding up to ridicule, 132.
Justifiable criticism not, 132, 133.
Evidence in actions for, 135.
When physician liable for, 135–137.
DENTISTS—Chapter XIII.
Early practitioners, 160, 161.
Subjects of examination for, 161, 162.
In Ontario, must be licensed, 162.
Liability for negligence, 162, 167.
Pulling wrong tooth, 163, 167.
Skill requirable, 164, 166.
Acting gratuitously, 166.
When services are useless, 167.
Are they mechanics? 169, 170.
Defrauding patient, 171, 172.
Appropriating signs of others, 172.
DILIGENCE—
Must go along with skill, 64.
DIPLOMA—
_Prima facie_ proof of skill, 64.
DISCRETION—
As to modes of treatment, 25.
As to number of visits, 63.
DISSECTION—
Provisions made for, 150, 151.
English Anatomy Act, 153.
Lawfulness of, considered, 157, 158.
DRUGGISTS—Chapter XIV.
Definition, 174.
Old time, 175.
Requirements of, 175–176.
Liability for miscompounding, 176–178.
— — mistakes, 177–185.
— — quality of drug, 178.
— criminally, 180.
— for selling adulterating substances, 186.
— — — deleterious drugs, 186.
— — — intoxicants, 187, 188.
Warrants drug to be as represented, 179.
Label a warranty, 179–180.
DRUGS—
Physician may charge for, 24.
Mistakes in selling, 177–186.
DRUIDS—1–3.
DUEL—
Medical man attending, 144.
DUTY OF PHYSICIAN—
On undertaking charge of patient, 57.
Not bound to take charge, 57.
To possess ordinary care, diligence and knowledge, 58–61.
In cases of small-pox, 22, 144, 147.
DYING DECLARATIONS—
Evidence in certain cases, 105.
E.
EARLY PRACTITIONERS—Chapter I.
ENGLAND—
Early practitioners in—Chapter I.
Who may practice, 43.
Women may practice, 14.
ENTRIES AGAINST INTEREST—
Admissible as evidence, 105, 106.
EXPERIMENTS—
Liability on making, 71, 72, 168.
EVIDENCE—_See_ EXPERTS AND EXPERT EVIDENCE, SCIENTIFIC BOOKS.
EXPERTS AND EXPERT EVIDENCE—
Fees to medical witnesses, 27, _et seq._
Excluding at trial, 106, 120.
Limiting number at trial, 106.
Rules for guidance, 106, 107.
When evidence of, admitted, 108, 117–120, 127.
Who may be experts, 109–114, 128.
The Court decides who may be, 113, 114.
Experts among the Romans, 109.
Opinions concerning, 110, 121–124.
Need not have made a special study, 112.
Better if they have, 112, 127.
Jury to decide weight to be given to, 114.
Opinions on morals, 115.
Do not speak as to merits, 115, 118, 125, 127.
Advisers of the Court, 115, 116.
Should state grounds of opinion, 116.
Admissible only as to matters of skill, 119.
Are not jurors, 119, 125.
Opinions on opinion, 119.
In insanity cases, 121–128.
What they may be asked, 124, 125.
Must hear all the evidence, 126.
Hypothetical cases, how put, 126, 127.
F.
FAMILY PHYSICIAN—
Recommending another, 148.
FEES—_See_ PAYMENT OF MEDICAL MEN.
Under Roman Law, 15.
Of physicians, not recoverable at Common Law, 15, 16.
Recoverable under Medical Act, 15, 17.
Of surgeons and apothecaries, 15, 16.
Of physician and surgeon, 16.
In Scotland and the Colonies, 17.
In America, 17.
No express promise to pay necessary, 18.
How fixed, 18, 19.
Must be reasonable, 19.
In some countries fixed by law, 19.
Services of assistants, 20.
Not dependant upon cure, 20, 21.
But services must be of benefit, 20–24, 167.
Account should be in detail, 23.
For friendly visits, 24.
For drugs, 24.
Where no cure, no pay, 25.
To medical witnesses, 26, 27.
To medical experts, 27–31.
Exorbitant charges, 140.
Who must pay, 32.
FRANCE—
Who may practise in, 44.
FRIEND—
Prescribing as, fees, 24.
Not medical attendant, 24.
G.
GERMANY—
Who may practise in, 44.
GIFTS TO MEDICAL MEN—
Are closely watched, 139.
When set aside, 139, 140.
When sustained, 140, 141.
GOODWILL—
In professional partnerships, 191.
Sale of, 191.
GRATUITOUS SERVICES—
Liability of physicians for, 61, 65, 66.
— — unprofessional men, 66, 67.
— — dentists, 166.
GROSS NEGLIGENCE—
What is, 87, 88.
Liability for, 55.
H.
HAIR-DYE—
Noxious, damages for, 182.
HOMŒOPATHISTS—
Regulations as to, in Ontario, 66.
Are Physicians in New York, 50, 54.
Are not Quacks, 132.
Consulting with, 134.
HUSBAND—
When liable for attendance on wife, 35, 39.
When liable for artificial teeth for wife, 171.
Suing druggist for damages to wife’s health, 186.
HYPOTHETICAL CASE—
How put, 126, 127.
I.
IGNORANCE—
Liability for gross ignorance, 55–61.
Criminal liability for gross, 55–88, 91, 92.
Imputing, when actionable, 130.
IMMORALITY—
When actionable to impute, 134.
IMPROPER TREATMENT—
When a defence to action, 20–24, 167.
Charges for, 20, 22, 167.
INFANT—
Medicines and medical aid, necessary for, 39.
INFECTIOUS DISORDERS—
Exposing persons suffering from, 147.
Duty of physicians in cases of, 22, 143, 147.
INSANE PATIENT—
Not liable for negligence, 69.
INSANITY CASES—
Evidence of experts, 121–128.
Opinions concerning, experts in, 121–124.
When expert evidence admissible, 124.
How to examine witnesses, 124–125.
Putting hypothetical cases, 126, 127.
Evidence of non-experts, 128.
Experts can only give opinions, 129.
Liability for committing in, 145–146.
Requisites for committal, 146.
INTOXICATING LIQUORS—
When unlawful to give, 148.
Druggists selling, 187–188.
IRELAND—
Early practitioners in, 6.
L.
LABEL OF DRUGGIST—
Is a warranty, 179–180.
LECTURES—
Cannot be published by students attending them, 195.
LIBEL—_See_ DEFAMATION.
M.
MALPRACTICE—_See_ CRIMINAL MALPRACTICE.
Defined, 55.
Consequences of, 55.
Civil and criminal, 55, 56, 83.
Some injury must be proved, 76.
Is a question for the jury, 76.
Cases of, should be construed in favor of physician, 76, 77.
Cases against physician rare, 77.
Actionable to charge one with, 133.
MANIPULATION—
Practising, without license, 51.
MANSLAUGHTER—_See_ CRIMINAL MALPRACTICE.
Physicians acting honestly and _bonâ fide_, 89, 90.
Druggist making mistake, 180–184.
MASTER AND SERVANT—_See_ ASSISTANTS AND APPRENTICES.
Payment of medical attendance, 40.
MEDICAL ACT OF ENGLAND—
Recovery of fees under, 17.
MEDICAL ACT OF ONTARIO—
Recovery of fees under, 17.
MEDICAL MAN—
Chaucer’s definition of, 7.
Had to be graduates in old times, 7.
Divisions under Henry VIII, 8.
Qualifications necessary to practise, 9, 48.
Qualifications under Henry VIII, 10.
No branches in America or Colonies, 17.
Discretion as to mode of treatment, 25.
As witnesses, 26.
Who must pay, 32–41.
Who may practise, 42.
The law favors no school, 42, 47.
Must practise according to school, 52, 53, 54.
One practising liable as, 54.
Duties when assuming charge, 57, 72, 73.
Must exercise ordinary care and diligence, 58.
Must keep up with the age, 61, 71.
Not liable for bad nursing, 70.
Rashly trying new experiments, 71.
Accepting retainer must attend, 72, 73.
Withdrawing from attendance, 73, 74.
Liability when not employed by patient, 74.
Action against, for defamation, 135–137.
Administering intoxicants, 148.
Relations with patients, 138–146.
Care necessary in choosing, 148.
MEDICINE—
When first studied in England, 6.
First statute concerning, 8.
Evidence of experts as to, 118.
MEMORANDA—
When may be used in court, 98.
MIDWIFE—
Defamatory words when actionable, 130.
MISREPRESENTATIONS—
To obtain money, 142, 143.
MISTLETOE—1.
MORALS—
Expert opinions on, 115.
N.
NECESSARIES—
Medicine and medical aid, 35, 39.
Artificial teeth, 171.
NEGLIGENCE OF MEDICAL MEN—
Communicating contagious diseases, 22.
Liability for gross negligence, 55.
Judged from legal stand point, 56.
Defined, 56, 57.
Liability for, when causing injury, 57, 63, 167.
Medical men must exercise reasonable care and diligence, 58.
Sex no excuse, 61.
Where services are gratuitous, 65.
— — — voluntary, 65, 66.
Proximate cause, 69.
When requested to perform operation, 69.
Aggravated by nursing, 70.
General reputation unavailing, 71, 86.
Injurious treatment, 72.
Neglecting to attend, 72, 73.
Where not employed by patient, 74, 75.
Not liable for every mistake, 75.
Is a question for the jury, 76.
Amount of damages recoverable, 78–80.
Action for, does not survive against representatives, 80.
Where death is caused by, 80, 81.
Criminal negligence, 82–85.
Immaterial whether physician licensed or not, 83, 84.
Acting _bona fide_ no criminal liability, 89, 90.
Patient affected by mortal disease, 90, 91.
Imputing want of skill, when actionable, 130, 133.
Of dentists, 162, _et seq._
Of druggists, 177, _et seq._
NEGLIGENCE OF PATIENT—
Responsible for careless choice of physician, 53.
Knowledge of physician’s ignorance, 57, 67.
Disobeying or neglecting orders, 67, 68.
What is contributory negligence, 68.
Insane patient’s negligence, 69.
NEW YORK—
Who may practise in, 49–51.
NURSING—
Aggravating the case, 70.
Liability of medical man for, 70.
O.
ONTARIO—
Who may practise medicine in, 45.
— — — dentistry in, 162.
— — — as druggists in, 176.
OPINION—_See_ EXPERT EVIDENCE.
P.
PARENT AND CHILD—
Liability of parent for doctor’s bill, 33.
Rule in England and United States, 37, 38.
Statutory liability in England, 38, 39.
PARTNERSHIP AMONG MEDICAL MEN—
Definition of, 189.
General rules applicable, 189.
Fraudulently inducing one to enter into, 189.
Conduct of partners, 190.
Dissolution, 190.
Interest of survivor, 191.
PATIENT—_See_ RELATIONS WITH.
Calling homœopath, 54.
Physician not bound to take, 57, 72.
Must exercise prudence in selecting doctor, 67.
Must co-operate with doctor, 67, 68.
Must exercise ordinary care and prudence, 68, 69.
Physician withdrawing from, 73, 74.
Not employing physician, 74, 75.
Suffering from mortal disease, 90, 91.
Submitting to dangerous operation, 91.
Communication with physician not privileged, 93.
PAYMENT OF MEDICAL MEN—_See_ FEES.
Physician called in by stranger, 32–35.
Wife may bind husband for, 35, 36.
As between parent and child, 35–39.
— — master and servant, 40.
Paupers, 40.
Liability of railways in accidents, 40, 41.
PECULIAR PEOPLE—38, 39.
PERSIA—
Medical fees in, 19.
PHARMACY, COLLEGE OF—
In Ontario, 175, 176.
POISONS—
Should be marked, 184.
Selling illegally, 185.
POST MORTEM—
Fees for, 27.
PRACTISE—
Who may, 42, _et seq._
Contracts not to, 192, 193.
PRACTICE—
Sale of, 191, 192.
PRIVILEGED COMMUNICATIONS—
Communications between physician and patient not, 93.
Are by statute in some States, 94, 95.
Must be lawful to be, 95.
Necessary for physician to prescribe, 95.
Report of officer of insurance company, 96.
Defamatory statements when, 136, 137.
PROFESSIONAL EVIDENCE—
Representation by patient as to malady, 96–98.
Mem. made by physician, 98, 105.
Scientific books not admissible, 99–105.
Dying declarations when admissible, 105.
Entries against interest admissible, 105.
Rules for guidance of medical witness, 106, 107.
Exclusion of experts, 120.
Q.
QUACKS—
When medical men may be called, 133, 134.
When not, 132.
R.
RASHNESS—86.
REGISTRATION OF MEDICAL MEN—
Before recovery of fees, 17, 18, 45.
Before practice in England and Ontario, 44, 45.
Who may be registered in England, 44.
— — — — — Ontario, 45.
Non-registered practitioners are quacks, 133.
Striking off registry for felony, 148.
REGULAR PHYSICIAN—
An allopathic, 51.
REPRESENTATION BY PATIENT—
As to malady, when evidence, 96–98.
REPUTATION—
Unavailing in accidents for negligence, 71, 86.
RESTRAINT OF TRADE—
When such contracts are allowable, 192, 193.
RESURRECTION—
Stealing winding sheet, 152.
Taking body a misdemeanor, 154.
Assisting at, 156.
Civil liability for, 157.
Ordered in proper cases, 159.
RELATIONS WITH PATIENTS—
No one can take advantage of a trust reposed, 138.
Practitioner must shew fairness of dealings with patients, 138.
Undue influence, when inferred, 138–140.
Gifts to medical men set aside, 139, 140.
Exorbitant charges relieved against, 140.
When patient has independent advice, 140, 141.
Contracts open and fair, 141.
Wills in favour of medical men, 141, 142.
Misrepresentations by medical men, 142.
Promises of cure, 143.
Duties in cases of small-pox, 143.
Right to limbs, 143.
Assaults on patients, 144–146.
ROYAL COLLEGE OF PHYSICIANS. Edinburgh—11.
ROYAL COLLEGE OF PHYSICIANS. Ireland—11.
ROYAL COLLEGE OF PHYSICIANS. London—9.
S.
SALE OF PRACTISE—191, 192.
SCHOOLS OF MEDICINE—
The law favors no school, 42, 43, 47, 51, 115.
Physician must practise according to his school, 52.
Considered in determining skill needed, 63, 64.
Experts may be of any school, 115.
SCIENTIFIC BOOKS—
Not admissible as evidence, 99.
Rule different in Iowa and Wisconsin, 100.
Cannot be read to jury, 100–103.
Can be used to test witness, 101.
Can be read to jury in some States, 103–105.
When cannot be quoted to jury, 105.
Can be read to the court, 105.
SCOTLAND—
Early practitioners in, 5.
SIGN—
An evidence of professional character, 64.
Of dentists in old days, 161.
Misleading, 173.
SKILL—
Physician must have ordinary, 57, 58.
What is ordinary, or reasonable skill, 59.
Amount required, 59–62.
— — varies, 60, 61.
Liability if skill not applied, 62.
Skill and diligence must be joined, 63.
School considered in determining, 64.
Proof of skill, 64.
Required in non-professional, 64, 65.
— — volunteer, 65.
— — gratuitous services, 65, 66.
— — dentists, 162.
SLANDER—_See_ DEFAMATION.
SMALL-POX—
Duties of physician in cases of, 143.
Innoculation, 147.
Exposing patients with, 147.
SMITHS—
As practitioners, 4.
SUPERSTITIOUS PRACTICES—2, 3, 8.
SURGEONS—
United with barbers, 4–6.
Union dissolved, 5.
Qualification under Henry VIII, 9.
Fees, 15.
Right to amputated limbs, 143.
Attending duels, 144.
T.
TEETH—
Value of, 166.
Dentists pulling wrong tooth, 163.
Artificial, need not be perfect, 163, 168.
Contract for purchase of, 169.
Artificial are necessaries, 171.
U.
UNDUE INFLUENCE—
When exercised over patient, 138, 140.
Setting aside will for, 141, 142.
Exercised by dentist, 171.
UNITED STATES—
As a rule any one may practise, 47.
The law sometimes interferes, 47.
Statutory requirements, 48, 51.
UNPROFESSIONAL MEN—
Liable for gross negligence, 65.
Liability for gratuitous services, 66, 67.
When criminally liable, 92.
Admitting, at a confinement, 144.
UNREGISTERED PHYSICIAN—
Practising for reward, 45, 46.
— — charity, 46.
V.
VACCINATION—
Negligence of physician, 22.
VISITS—
Physician best judge of number, 23.
As a friend, 24.
VOLUNTEER—
Held more strictly than one called in, 65, 66.
W.
WIFE—
May generally bind husband to pay doctor, 35, 36.
But husband may select physician, 36.
Cannot bind him for clairvoyant services, 36.
Selling deleterious drugs to, 186.
WILL—
In favour of medical man, 141, 142.
WITNESS—_See_ EXPERTS.
Fees to medical men, 26, 37.
WOMEN PHYSICIANS—
Among the Druids, 2.
In England in early times, 2, 3, 10, 14.
Penalty for practising, 7.
In Greece and foreign lands, 13.
In United States, 14.
In England under the Medical Act, 14.
In Ontario, 14.
As liable for negligence as men, 61.
Printed for the Publishers by MOORE & CO., 20 Adelaide Street East,
Toronto.
ENDNOTES.
[1] The Faërie Queene, b. III., cap. 5, sts. 31, 32, 33.
[2] 32 Henry VIII., cap. 42.
[3] 21 & 22 Vic. cap. 90.
[4] 3 Henry VIII. cap. 11.
[5] _Rose_ v. _Coll. of Phy._, 3 Salk. 17: 6 Mod. 44.
[6] 55 Geo. III. cap. 194. sec. 5.
[7] _Apoth. Co._ v. _Lotinga_, 2 Moo. & R. 499; Glenn’s Laws Affecting
Medical Men, p. 207.
[8] True Blue Laws of Connecticut, by J. H. Trumbull, 1876.
[9] Prof. H. C. Bolton, _Pop. Sci. Monthly_, vol. 18 p. 191.
[10] 3 Ortolan, Expli. des Instituts, sec. 1199, quoted in Ordronaux’s
Jurisprudence of Medicine.
[11] _Poucher_ v. _Norman_, 3 B. & C. 744; _Chorley_ v. _Bolcot_, 4 T.
R. 317; _Veitch_ v. _Russell_, 3 Q. B. 925.
[12] _Battersby_ v. _Lawrence_, Car. & M. 277.
[13] Per _Bramwell, B._; _Ellis_ v. _Kelly_, 6 H. & N. 226; _Allison_
v. _Haydon_, 3 C. & P. 246; _Apothecaries Co._ v. _Lotinga_, 2 Moo. &
R. 495: _Battersby_ v. _Lawrence_, Car. & M. 277.
[14] _Gensham_ v. _Germain_, 11 Moore 1; _Towne_ v. _Gresley_, 3 C. &
P. 581; _Handey_ v. _Henson_, 4 C. & P. 110; _Morgan_ v. _Hallen_, 8
Ad. & E. 489.
[15] Stair I. 12; 5.
[16] _Adams_ v. _Stevens_, 26 Wend. 451.
[17] 21 & 22 Vict. cap. 90, sec. 27; _Simpson_ v. _Dismore_, 9 M. & W.
47; R. S. Ont. cap, 142, secs, 35–36.
[18] _Hewitt_ v. _Wilcox_, 1 Met. 154.
[19] _Adams_ v. _Stevens_, 26 Wend. 451; _Baxter_ v. _Gray_, 4 Scott,
N. R. 374; _Mock_ v. _Kelly_, 3 Ala. 387; _Beekman_ v. _Planter_, 15
Barb. 550; _McPherson_ v. _Chedell_, 24 Wend. 15; _Simmons_ v. _Means_,
8 Sm. & Marsh, 397; _Smith_ v. _Watson_, 14 Vt. 322.
[20] Ordronaux, sec. 39; Willcocks on the Medical Profession, p. 111.
[21] _Tuson_ v. _Batting_, 3 Esp. N. P. 192; _Baxter_ v. _Gray_, 4
Scott, N. R. 374.
[22] Affaire Tallien Jour. du Palais, vol. 3; An. XI., XII. p. 210.
[23] _Collins_ v. _Grady_, 13 Louis. An. 95; 2 Louis. 331.
[24] _People_ v. _Monroe_, 4 Wend. 200; _Blogg_ v. _Parkers_, Ry. & M.
N. P. C. 125.
[25] Story on Bailments, sec. 375.
[26] _Farnsworth_ v. _Garrard_, 1 Camp. 38; _Adler_ v. _Buckley_, 1
Swan (Tenn.) 69; _Gallagher_ v. _Thompson_, Wright (Ohio), 466.
[27] _Basten_ v. _Butter_, 7 East, 479.
[28] _Adler_ v. _Buckley_, 1 Swan (Tenn.), 69.
[29] _Hill_ v. _Featherstonhaugh_, 7 Bing. 574; _Seare_ v. _Prentise_,
8 East, 350.
[30] _Duffit_ v. _James_, cited _Baston_ v. _Butter_, 7 East, 480;
_Kannen_ v. _McMullen_, 1 Peake, 85; _Bellinger_ v. _Craigue_, 31 Barb.
534; _Long_ v. _Morrison_, 14 Ind. 595.
[31] _Kannen_ v. _McMullen_, 1 Peake, 83; _Hupe_ v. _Phelps_, 2
Starkie, 424.
[32] _Piper_ v. _Menifee_, 12 B. Monr. 467.
[33] Ordronaux p. 92.
[34] _Landon_ v. _Humphrey_, 9 Conn. 209.
[35] Peake’s N. P. C. 83, 84.
[36] _Hughes_ v. _Hampton_, Const. Rep. (S. C.) 745.
[37] _Wheeler_ v. _Sims_, 5 Jur. 151; _Newton_ v. _Ker_, 14 Louis. An.
704.
[38] _Tuson_ v. _Batting_, 3 Esp. 191.
[39] _Miller_ v. _Beal_, 26 Ind. 234.
[40] _Collins_ v. _Graves_, 13 Louis. An. 95; _Villalobas_ v. _Mooney_,
2 Louis. 331.
[41] _Todd_ v. _Myers_, 40 Cal. 357.
[42] _Succession of Duclos_, 11 Louis. An. 406; _Sheldon_ v. _Johnson_,
40 Ia. 84; _Guerard_ v. _Jenkins_, 1 Strobh. 171; Ordronaux, sec. 47.
[43] _Roberts_ v. _Kerfoot_, cited Glenn’s Laws, p. 201; _Stackman_ v.
_Vivian_, 34 Beav. 290.
[44] Ordronaux, sec. 43.
[45] _Bassett_ v. _Spofford_, 11 N. H. 167.
[46] _Smith_ v. _Hyde_, 19 Verm. 54; _Mock_ v. _Kelly_, 3 Alab. 387;
Jones on Bailm. 99; Ordronaux, secs. 21 and 15.
[47] _McClallen_ v. _Adams_, 19 Pick, 333; Ordronaux, sec. 48.
[48] _Parkinson_ v. _Atkinson_, 31 L. J., C. P. 199; _Turner_ v.
_Turner_, 5 Jur., N. S., 839.
[49] _Clark_ v. _Gill_, 1 Kay & J. 19; _Webb_ v. _Paige_, 1 Car. & Kir.
23.
[50] _Hammond_ v. _Stewart_, 1 Stra. 510.
[51] _In re Askin & Charteris_, 13 U. C. R. 498.
[52] _In re Harbottle & Wilson_, 30 U. C. R. 314.
[53] R. S. O. cap. 79, sec. 10.
[54] Iowa Code, 1873, sec. 1814; North Carolina Laws, 1871, cap. 139,
sec. 13; Rhode Is. Pub. Stat. 1882, p. 733; Indiana Rev. Stat. 1881, p.
94, sec. 504.
[55] _Belts_ v. _Clifford_, Warwick Assizes, Lent, 1858.
[56] _Webb_ v. _Paige_, 1 Car. & Ker. 23.
[57] _Buchman_ v. _State_, 59 Ind. 1.
[58] In _Re Roelker_. 1 Sprague, 276.
[59] _People_ v. _Montgomery_, 13 Abb. Pr. (N. S.), 207.
[60] Juris. of Med. secs. 114–116; 1 Tay. Med. Jur. p. 19; 2 Phil. Ev.
4th Am. Ed., p. 828; 1 Redf. on Wills, pp. 154–155.
[61] Exparte _Dement_, 53 Ala. 389.
[62] _Summer_ v. _State_, 5 Tex. Ct. of App. 574.
[63] Smith on Contracts, 85.
[64] _Bradley_ v. _Dodge_, 45 How., N. Y., Pr. 57; _Craine_ v.
_Bandoine_, 65 Barb., N. Y., 261; _Harrison_ v. _Grady_, 13 L. T., N.
S., 369; _Spaun_ v. _Mercer_, 8 Neb., 537.
[65] _Watling_ v. _Walters_, 1 C. & P. 132.
[66] _Boyd_ v. _Sappington_, 6 Watts, 247.
[67] _Smith_ v. _Watson_, 14 Vt. 332.
[68] _Harrison_ v. _Grady_, 13 L. T., N. S. 369; _Cooper_ v. _Lloyd_, 6
C. B., N. S. 519; Roper on Husband and Wife, 2nd ed. v. ii. p. 114.
[69] _Harrison_ v. _Grady_, supra; _Thorpe_ v. _Shapleigh_, 67 Me. 235.
[70] _Webber_ v. _Spaunpake_, 2 Redf., N. Y., 258.
[71] _Berier_ v. _Galloway_, 71 Ill. 517; _Hartmann_ v. _Tegart_, 12
Kan. 177.
[72] _Potter_ v. _Virgil_, 67 Barb. N. Y., 578.
[73] _Wood_ v. _O’Kelley_, 8 Cush. 406.
[74] Parsons on Contracts, vol. i. p. 302–303; _Blackburn_ v. _Mackey_,
1 C. & P. 1.
[75] _Crantz_ v. _Gill_, 2 Esp. 471.
[76] _Rogers_ v. _Turner_, 59 Mo. 116; _Deane_ v. _Annis_, 14 Me. 26;
_Swain_ v. _Tyler_, 26 Vt. 1.
[77] _Cooper_ v. _Phillips_, 4 C. & P. 581.
[78] 31 & 32 Vict. cap. 122, sec. 37.
[79] _Reg._ v. _Downes_, 1 Q. B. D. 25.
[80] _Reg._ v. _Hines_, 80 Cen. C. C. Sess. Pap. 309; _Reg._ v.
_Wagstaffe_, 10 Cox. C. C. 530.
[81] _Reg._ v. _Morby_, 8 Q. B. D. 571.
[82] _Blackburn_ v. _Mackey_, 1 C. & P. 1; _Hoyt_ v. _Casey_, 14 Mass.
397.
[83] _Wennall_ v. _Adney_, 3 B. & P. 24; _Sellen_ v. _Norman_, 4 C. &
P. 80.
[84] _Cooper_ v. _Phillips_, 4 C. & P. 581.
[85] _R._ v. _Smith_, 8 C. & P. 153.
[86] Glenn’s Law of Medical Men, pp. 197–199.
[87] _Cox_ v. _Midland Counties Railway_, 3 Ex. 268; _Cooper_ v. _N. Y.
C._ 13 N. Y. Sup. Ct. 276.
[88] _Walker_ v. _Great Western Railway_, 2 L. R. Ex. 228; _Cairo,
etc., Railroad Company_ v. _Mahoney_, 82 Ill. 73; _Stephenson_ v. _N.
Y. & H. R. R. Co._, 2 Duer. 341.
[89] Per Parke, B., and Rolfe, B., in _Cox_ v. _Mid. Co. Railway_,
supra.
[90] _Corsi_ v. _Maretzck_, 4 E. D. Smith 1 (1855).
[91] 21 & 22 Vict. cap. 90, secs. 31, 32; _Wagstaffe_ v. _Sharpe_, 3 M.
& W. 521; _Shearwood_ v. _Hay_, 5 Ad. & E. 383; _Turner_ v. _Reynall_,
14 C. B. N. S. 328.
[92] 21 & 22 Vict. cap. 90, sec. 15.
[93] Enc. Brit. Vol. xv. p. 799.
[94] R. S. O. cap. 142.
[95] _Reg._ v. _Coll. Phy. & Sur._, 44 Ont. Q. B. 564.
[96] _Reg._ v. _Hessel_, 44 Ont. Q. B. 53 _Reg._ v. _Campbell_, Q. B.
D. (Ont.) June, 1883.
[97] _Reg._ v. _Tefft_, 45 Ont. Q. B. 144.
[98] _Wilmot_ v. _Shaw_, 2 C. L. Times, 96.
[99] _Reg._ v. _Coll. P. & S._ 16 C. L. J. 30; R. S. O. cap. 142, sec.
23.
[100] _Re Heinemann’s Appeal_, 96 Pa. St. 112.
[101] Ordronaux’s Inst. of Med., secs. 5 and 6; _Sutton_ v. _Tracy_, 1
Mich. 243.
[102] N. Y. Laws, cap. 436.
[103] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1.
[104] _Bradbury_ v. _Bardin_, 35 Conn. 577.
[105] _Bowman_ v. _Woods_, 1 Iowa, 441.
[106] _Smith_ v. _Lane_, 24 Hun, 632.
[107] _Bibber_ v. _Simpson_, 59 Me. 181; _Thistleton_ v. _Frewer_, 31
L. J. Ex. 230.
[108] _Patten_ v. _Wiggin_, 51 Me. 594.
[109] _Bowman_ v. _Woods_, 1 Iowa, 441.
[110] _Horton_ v. _Green_, 64 N. C. 64.
[111] Ordronaux, sec. 8.
[112] _Sutton_ v. _Tracy_, 1 Mich. 243; _Reynolds_ v. _Graves_, 3 Wisc.
416.
[113] _Langdon_ v. _Mut. Life Ins. Co._, 5 Hun. N. Y. 1.
[114] Per Cur., in _Dr. Greonvelt’s_ case, 1 Lord Ray, 213.
[115] Glenn, p. 251; Addison on Torts, Ed. 3rd, p. 17.
[116] Glenn, p. 252; Erle, C.J., _R._ v. _Noakes_, 4 F. & F. 920.
[117] _Gardiner_ v. _Heartt_, 3 Denio, 232–236; McClelland’s Civil
Malpractice, cap. 17.
[118] Wharton on Negligence, sec. 3.
[119] _Carpenter_ v. _Blake_, 60 Barb. 488.
[120] McClelland, cap. 17.
[121] Wharton, sec. 731.
[122] _Wilmot_ v. _Howard_, 32 Vt. 447; _Long_ v. _Morrison_, 14 Ind.
595; _Patten_ v. _Wiggin_, 51 Me. 594.
[123] _Hancke_ v. _Hooper_, 7 C. & P. 81.
[124] _Patten_ v. _Wiggin_, 51 Me. 594.
[125] _Leighton_ v. _Sargent_, 7 Fost. 460; _Simonds_ v. _Henry_, 39
Me. 155; _Hancke_ v. _Hooper_, 7 C. & P. 81; _McCandless_ v. _McWha_,
22 Pa. St. 261; _Carpenter_ v. _Blake_, 60 Barb. 488; _Utley_ v.
_Burns_, 70 Ill. 162; _Barnes_ v. _Means_, 82 Ill. 379.
[126] _Heath_ v. _Gibson_, 3 Oregon, 64.
[127] _Slater_ v. _Baker_, 2 Wils. 359; _McCandless_ v. _McWha_, sup.;
Wh. and Still. Medic. Juris. sec. 1087.
[128] Bouvier’s Institutes, secs. 1004–1005.
[129] Ordronaux’s Jurisp. of Medicine, sec. 23.
[130] _Rich_ v. _Pierpoint_, 3 F. & F. 35.
[131] Wharton on Negligence, sec. 734.
[132] Ordronaux, sec. 22.
[133] Wharton on Negligence, sec. 640.
[134] _Small_ v. _Howard_, 128 Mass. 131; _Hathorn_ v. _Richmond_, 48
Vt. 557.
[135] Woodward, J., in _McCandless_ v. _McWha_, 22 Pa. Rep. 261.
[136] _Mich. Cent. Rw._ v. _Hasseneyer_, 48 Mich. 205; _Fox_ v.
_Glastonbury_, 29 Conn. 204.
[137] Shearman & Red., sec. 432.
[138] _Patten_ v. _Wiggen_, 51 Me. 594.
[139] _Rich_ v. _Pierpoint_, per Erle, C.J., 3 F. & F. 35.
[140] _Carpenter_ v. _Blake_, 60 Barb. 488.
[141] Ordronaux’s Jur. of Med., sec. 68.
[142] _Potter_ v. _Warner_, 91 Pa. St. 362; 36 Am. Rep. 668.
[143] _Bowman_ v. _Woods_, 1 Greene (Iowa), 441; _Corsi_ v. _Maretzek_,
4 E. D. Smith, 1.
[144] _Sutton_ v. _Tracy_, 1 Mich. 243.
[145] _Mertz_ v. _Detweiler_, 8 W. & Serg. 376; _Seare_ v. _Prentice_,
8 East, 348; _Carpenter_ v. _Blake_, 60 Barb. 518.
[146] _Hunter_ v. _Blount_, 27 Ga. 76; _Leighton_ v. _Sargent_, 7
Foster, N. H. 476.
[147] Wharton on Negligence, sec. 29.
[148] _Hood_ v. _Grimes_, 13 B. Monr. 188.
[149] _Ruddock_ v. _Lowe_, 4 F. & F. 519; _R._ v. _Simpson_, 4 C. & P.
407, note.
[150] Shearman & Redfield on Negligence, sec. 432; _Ritchey_ v. _West_,
3 Ill. 385; _Shiells_ v. _Blackburne_, 1 H. Bl. 159; _Wilson_ v.
_Brett_, 11 M .2 & W. 113; _Pippin_ v. _Shepherd_, 11 Price, 400.
[151] Wharton on Negligence, sec. 731 n.
[152] Jur. of Med. sec. 27.
[153] _R._ v. _Macleod_, 12 Cox. C. C. 534.
[154] _Perionowsky_ v. _Freeman_, 4 F. & F. 977.
[155] _Shiells_ v. _Blackburne_, 1 H. Bl. 159.
[156] _Boynton_ v. _Somersworth_, 58 N. H. 321.
[157] McClelland, Civil Malpractice; Wharton on Negligence, sec. 737;
_Leighton_ v. _Sargent_, 7 Fost. 460; _McCandless_ v. _McWha_, 22 Pa.
St. 261.
[158] _Geiselman_ v. _Scott_, 25 Oh. St. 86.
[159] _Parker_ v. _Adams_, 12 Metc. 417.
[160] _Hibbard_ v. _Thompson_, 109 Mass. 286.
[161] _Cleveland, etc., Rw._ v. _Terry_, 8 Oh. St. 570.
[162] _Ch. & R. I. Rw._ v. _McKean_, 40 Ill. 218; _Eakin_ v. _Brown_, 1
E. D. Smith, 36.
[163] _Clark_ v. _Kerwin_, 4 E. D. Smith, 21; _Parker_ v. _Adams_, 12
Mete 417.
[164] _Kerwhaker_ v. _Cleveland, etc., Rw._ 3 Oh. 172; _Ind. and Cin.
Rw._ v. _Caldwell_, 9 Ind. 397.
[165] _Ch. etc., Rw._ v. _Goss_, 17 Wisc. 428.
[166] Chapman, C.J., _Hibbard_ v. _Thompson_, 109 Mass. 288.
[167] _Gramm_ v. _Boener_, 56 Ind. 497.
[168] _Fisk_ v. _Wait_, 104 Mass. 71.
[169] _People_ v. _N. Y. Hospital_, 3 Abb. N. C. 229.
[170] _Chamberland_ v. _Morgan_, 68 Penn. St. 168.
[171] _Wilmot_ v. _Howard_, 39 Vt. 447.
[172] _Perionowsky_ v. _Freeman_, 4 F. & F. 977.
[173] _Potter_ v. _Warner_, 91 Penn. St. 362.
[174] _Slater_ v. _Baker_, 2 Wils. 359.
[175] _Carpenter_ v. _Blake_, 60 Barb. 488.
[176] _Hunter_ v. _Ogden_, 31 U. C. R. 132.
[177] _Carpenter_ v. _Blake_, Sup.
[178] _Ballon_ v. _Prescott_, 64 Me. 305.
[179] Ordronaux, sec. 14; Shearman & Red., sec. 441.
[180] _Longmeid_ v. _Holliday_, 6 Ex. 767.
[181] _Pippin_ v. _Sheppard_, 11 Price, 400.
[182] _Gladwell_ v. _Steggall_, 5 Bing. N. C. 733.
[183] Wharton on Negligence, sec. 735.
[184] _Craig_ v. _Chambers_, 17 Ohio St. 253.
[185] _Fields_ v. _Rutherford_, 29 (Ont.) C. P. 113; _Metropolitan R.
W. Co._ v. _Jackson_, L. R. 3 App. 193, 197.
[186] _Fawcett_ v. _Mothersell_, 14 C. P. (Ont.) 104; _Jackson_ v.
_Hyde_, 28 U. C. R. 295.
[187] Ordronaux, sec. 54.
[188] Ordronaux, sec. 86.
[189] _Jones_ v. _Northmore_, 46 Vt. 587.
[190] _Whalen_ v. _St. Louis, etc., Ry._, 60 Mo. 323; _Indianapolis,
etc., Ry._ v. _Gaston_, 58 Ind. 224; _Leighton_ v. _Sargent_, 11
Foster, N. H. 120.
[191] _Johnson_ v. _Wills_, 6 Nev. 224.
[192] _Curtis_ v. _Rochester & S. Ry._ 20 Barb. 282.
[193] L. R., 4 Q. B. D. 407.
[194] L. R., 5 C. P. D. 280.
[195] _Holmes_ v. _Halde_, 74 Me. 28.
[196] _Jenkins_ v. _French_, 58 N. H. 532; Broom’s Maxims, 702. But see
_Hegerich_ v. _Keddie_, 32 Hun, 141; _Yertore_ v. _Wiswall_, 16 How.
Pr. 8.
[197] Lord Campbell’s Act, 9 & 10 Vict. cap. 93; R. S. O. cap. 128;
_Lett_ v. _St. Lawrence & Ottawa Rw._, 1 Ont. Rep. 545; _Blake_ v.
_Midland Rw._, 18 Q. B. 93; _Bradburn_ v. _G. W. R._, L. R., 10 Ex. 3.
[198] _Morse_ v. _Auburn & S. Rw._, 10 Barb. 623.
[199] Glenn, p. 259
[200] _R._ v. _Long_, 4 C. & P. 398; _R._ v. _Crick_, 1 F. & F. 519.
[201] 4 Coke Inst. 251; 4 Bla. Com. 197; 1 Hale, P. C. 429.
[202] _Rex_ v. _Van Butchell_, 3 C. & P. 629; _Rice_ v. _The State_, 8
Mo. 561; _Com._ v. _Thompson_, 6 Mass. 134.
[203] _Rex_ v. _Webb_, 1 M. & Rob. 405, See also _Rex_ v. _Simpson_, 4
C. & P. 407 n.
[204] Bolland, B., in _Rex_ v. _Spiller_, 5 C. & P. 19; _Lamphier_ v.
_Philpot_, per Tindal, C.J, 8 C. & P. 575.
[205] Per Coleridge, J.; _Rex_ v. _Spilling_, 2 M. & Rob. 107.
[206] _R._ v. _Chamberlaine_, 10 Cox, C. C. 486; Blackburn, J.
[207] _State_ v. _Shulz_, 55 Ia. 628.
[208] _Rex_ v. _Williamson_, 3 C. & P. 635; 14 Eng. Com. Law Rep. 297.
[209] Cap. 4, sec. 16.
[210] _Rex_ v. _St. John Long_, 4 C. & P. 378; 19 Eng. Com. Law Rep.
404.
[211] Wharton on Homicide, sec. 148.
[212] _Rex_ v. _St. John Long_, 4 C. & P. 423; 19 E. C. L. R. 440.
[213] _Rice_ v. _The State_, 8 Mo. 561.
[214] Ordronaux, secs. 80, 77. But see _R._ v. _Nancy Simpson_, 4 C. &
P. 407 n.
[215] _Rex_ v. _Markuss_, 4 F. & F. 356.
[216] 38 Ark. 605.
[217] _Com._ v. _Thompson_, 6 Mass. 134.
[218] _Rice_ v. _State_, 8 Mo. 561.
[219] 55 Iowa, 698.
[220] _R._ v. _Webb_, 1 M. & R. 405; Wharton on Homicide, sec. 405.
[221] _R._ v. _Lee_, 4 F. & F. 63; _Com._ v. _McPike_, 3 Cush. 181;
_Com._ v. _Hackett_, 2 Allen, 137; Wharton on Homicide, sec. 385.
[222] Wharton on Homicide, sec. 554.
[223] Wharton on Homicide, sec. 557.
[224] Medical Jurisprudence, sec. 1059.
[225] _Duchess of Kingston’s Case_, 20 Howell St. Tr. 573; _Wilson_ v.
_Rastall_, 4 T. R. 760; _Greenough_ v. _Gaskill_, 1 Myl. & K. 103; _R._
v. _Gibbons_, 1 C. & P. 97; _Broad_ v. _Pitt_, 3 C. & P. 579.
[226] _Duchess of Kingston’s Case_, supra.
[227] Belloc. Cours de Med. leg. 17.
[228] 1 Greenleaf on Evidence, sec. 248; _Campan_ v. _North_, 39 Mich.
606.
[229] _Harris_ v. _Russel_, 16 Ind. 209; _Staunton_ v. _Parker_, 19
Hun. 55; _Fraser_ v. _Jenneson_, 42 Mich. 206.
[230] 2 N. Y. Rev. St. 406, sec. 73; _Hunn_ v. _Hunn_, 1 Thomp. & C.
499.
[231] _Pierson_ v. _People_, 79 N. Y. 434.
[232] _Cohen_ v. _Continental, etc., Ins. Co._, 41 N. Y. Super. Ct.
296; _Grattan_ v. _Metropolitan L. Ins. Co._, 80 N. Y. 281.
[233] _Hewitt_ v. _Prime_, 21 Wend. 79.
[234] _Edington_ v. _Ætna Life Ins. Co._, 77 N. Y. 564, but see
_Edington_ v. _Ætna Life Ins. Co._, 67 N. Y. 185.
[235] _Lee_ v. _Hammerton_, 10 L. T.; N. S. 730; _Mahony_ v. _Nat.
Widow’s Life Assurance Fund_, L. R. 6 C. P. 252; _Baker_ v. _London &
S. W. Railway_, L. R. 3 Q. B. 91; _Cossey_ v. _L. B. & C._, L. R. 5 C.
P. 146; _Skinner_ v. _G. N. R._, L. R. 9 Ex. 298.
[236] _Aveson_ v. _Lord Kinnaird_, 6 East 188; Taylor on Evidence,
secs. 580, 581, 7th ed.
[237] _Bacon_ v. _Charlton_, 7 Cush. 586; _Chapen_ v. _Marlborough_, 9
Gray 244; _Barber_ v. _Merriam_, 11 Allen 322.
[238] _Kennard_ v. _Burton_, 25 Me. 39; _Gray_ v. _McLaughlin_, 26 Ia.
279; _Brown_ v. _N. Y. C._, 32 N. Y. 597; _Caldwell_ v. _Murphy_, 11 N.
Y. 344; _Barber_ v. _Merriam_, sup.; _Denlon_ v. _State_, 1 Swan 279;
_Matteson_ v. _N. Y. C._, 35 N. Y. 487.
[239] _Chapin_ v. _Malborough_, sup.; _Lush_ v. _McDaniel_, 13 Ired. L.
485; _Rogers_ v. _Cain_, 30 Tex. 284; _Wilson_ v. _Granby_, 47 Conn.
[240] _Witt_ v. _Witt_, 3 Sw. & Trist. 143.
[241] _Ill. Cen. R. R._ v. _Sutton_, 42 Ill. 438.
[242] _Rowell_ v. _Lowell_, 11 Gray 420.
[243] _Roosa_ v. _Boston Loan Co._, 132 Mass. 439; _Quaife_ v. _C. & N.
W. R._, 48 Wis. 513.
[244] _Denton_ v. _State_, 1 Swan 279.
[245] Greenleaf on Evid. sec. 436; Ordronaux sec. 124; Glenn, p. 284.
[246] _Collier_ v. _Simpson_, 5 C. & P. 73; _Reg._ v. _Thomas_, 13 Cox
Cr. Cas. 77; Redfield on Wills, p. 145; _People_ v. _Hall_, 48 Mich.
486; Rogers on Expert Evidence, sec. 180; _Brown_ v. _Sheppard_, 13 U.
C. R. 178.
[247] _Bowman_ v. _Woods_, 1 Ia. 44; _Luning_ v. _State_, 1 Chandler
(Wisc.) 264; _Ripon_ v. _Bittel_, 30 Wisc. 362; _Stirling_ v. _Thorp_,
54 Wisc.
[248] _Con. Mut. Life Ins. Co._ v. _Ellis_, 89 Ill. 516; Expert
Testimony, sec. 182.
[249] _Com._ v. _Sturtevant_, 117 Mass. 123.
[250] _Marshall_ v. _Brown_, 15 N. W. Rep. 55.
[251] _Brown_ v. _Sheppard_, 13 U. C. R. 178.
[252] _Pinney_ v. _Cohill_, 12 N. W. Rep. 862; _Ripon_ v. _Bittell_, 30
Wisc. 362.
[253] _Ashworth_ v. _Kittridge_, 12 Cush. 193.
[254] _Reg._ v. _Crouch_, 1 Cox Cr. Cas. 94; _Washburn_ v. _Cuddihy_,
8 Gray 430; _Huffman_ v. _Click_, 77 N. C. 54; _Fraser_ v. _Jennison_,
42 Mich. 206, 214; _People_ v. _Wheeler_, 9 Pac. Coast L. J. 581;
_Robinson_ v. _N. Y. C._, 24 A. L. J. 357.
[255] 46 Conn. 330.
[256] _People_ v. _Wheeler_, 9 Pac. C. L. Jour. 581.
[257] See also _Collier_ v. _Simpson_, 5 C. & P. 73; _Ordway_ v.
_Haynes_, 50 N. H. 159; _People_ v. _Anderson_, 44 Cal. 65; _Carter_
v. _State_, 2 Cart. 617; _Gale_ v. _Rector_, 5 Bradw. 484; _Harris_ v.
_Panama R. Co._, 3 Bosw. 7.
[258] _State_ v. _Hoyt_, 46 Conn. 330.
[259] _Harvey_ v. _State_, 40 Ind. 516; _Wade_ v. _De Witt_, 20 Texas
398; _State_ v. _West_, 1 Houston Cr. Cas. Del. 371.
[260] _Legg_ v. _Drake_, 1 Ohio St. 286.
[261] Per Loomis, J., _State_ v. _Hoyt_, sup.; _Wade_ v. _De Witt_, 20
Tex. 398, 400; _Luning_ v. _State_, sup.; Experts and Expert Testimony
by U. C. Moak, 24 A. L. J. 267.
[262] _Yoe_ v. _State_, 49 Ill. 410.
[263] _Russell_ on Crimes, 4th ed. vol. iii. p. 250.
[264] _Higham_ v. _Ridgway_, 10 East 109.
[265] Taylor’s Evid., vol. ii., sec. 1259; Alison’s Criminal Law of
Scotland, 542; Wharton’s Evid., vol. i. p. 492.
[266] _Sizer_ v. _Burt_, 4 Denio, 426; _Anthony_ v. _Smith_, 2 Bos.
(N.Y.) 503, 508; _Fraser_ v. _Jameson_, 42 Mich. 206. 223.
[267] 1 Smith Lead. Cas., 6th Ed. 509; _Kennedy_ v. _People_, 30 N. Y.
245.
[268] _Chicago, etc._, v. _McGiven_, 78 Ill. 347; _Hartford Pro. Ins.
Co._ v. _Harmer_, 20 Oh. St. 457.
[269] _Commonwealth_ v. _Rodgers_, 7 Metc. 5, per Shaw, C.J.
[270] 1 Greenl. Evid., sec. 440; _Jones_ v. _White_, 11 Hump. 268.
[271] Plowden, 125; Year Books, vol. v.
[272] _Whittaker_ v. _Parker_, 42 Ia. 586; _State_ v. _Watson_, 65 Me.
74; _Rutherford_ v. _Morris_, 77 Ill. 404; _Tracy_ Peerage, 10 Cl. &
Fin. 191.
[273] Taylor on Evidence, sec. 50, Ed. 1872.
[274] Best on Evidence, sec. 574.
[275] _State_ v. _Wood_, 53 N. H. 484; _Masons_ v. _Fuller_, 45 Vt. 29;
_New Orleans, etc., Rw._ v. _Allbretton_, 38 Miss. 247; _Re Toomes_, 54
Cal. 515.
[276] _Fairchild_ v. _Bascomb_, 35 Vt. 410; _Polk_ v. _State_, 36 Ark.
117; _Roberts_ v. _Johnson_, 58 N. Y. 613.
[277] _Hathaway_ v. _Nat. Life Ins. Co._, 48 Vt. 335, 351; _Fairchild_
v. _Bascomb_, supra.
[278] _Castner_ v. _Sliker_, 33 N. J. (L.) 97; _State_ v. _Reddick_, 7
Kan. 143; _State_ v. _Henkle_, 6 Ia. 380; _State_ v. _Cook_, 17 Kan.
391.
[279] _Horton_ v. _Green_, 64 N. C. 64.
[280] _Emerson_ v. _Lowell Gas Light Co._, 6 Allen, 146.
[281] _Heald_ v. _Wing_, 5 Me. 392.
[282] _Harris_ v. _Panama R. R. Co._, 3 Bosw. (N. Y.), 77; _Fairchild_
v. _Bascomb_, 35 Vt. 398.
[283] _Re Toomes_, 54 Cal. 575.
[284] Greenleaf’s Evidence, 12th Ed., I. p. 483; _Livingstone’s case_,
14 Grat. 592.
[285] _Lorg_ v. _First German Congregation_, 63 Pa. St. 156; _Hills_ v.
_Home Ins. Co._, 129 Mass., 544, 551.
[286] _Lester_ v. _Pittsford_, 7 Vt. 161; _Mendum_ v. _Com._ 6 Rand.
704; _Tullis_ v. _Kidd_, 12 Ala. 648; _Sinclair_ v. _Rourk_, 14
Ind. 540; _Winans_ v. _N. Y., etc., R. R. Co._, 21 How. (U. S.) 88;
_Boardman_ v. _Woodman_, 47 N. H. 121; _Davis_ V. _State_, 35 Ind. 496.
[287] _Forgery_ v. _First Nat. Bank_, 66 Ind. 123, 125; _McEwen_ v.
_Bigelow_, 40 Mich. 217; _Kilborne_ v. _Jennings_, 38 Iowa, 533.
[288] _Mitchell_ v. _State_, 58 Ala. 418; _Forgery_ v. _First Nat.
Bank_, 66 Ind. 123; _Parnell_ v. _Commonwealth_, 86 Pa. St. 269;
_Carter_ v. _Baker_, 1 Sawy. (U. S. C. C.) 525.
[289] _Tatum_ v. _Mohr_, 21 Ark. 355; _Getchell_ v. _Hill_, 21 Minn.
464.
[290] Ordronaux Principles, sec. 108–110.
[291] _St. Louis Mut. Ins. Co._ v. _Graves_, 6 Bush. 290.
[292] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1.
[293] Wharton on Mental Unsoundness, sec. 282.
[294] _Keith_ v. _Lothrop_, 10 Cush. 453; _Clark_ v. _State_, 12 Ohio,
483.
[295] Rules Relating to Opinion Evidence, 26 A. L. J. 486; _State_ v.
_Smith_, 32 Me. 370; _Young_ v. _Makepeace_, 103 Mass. 50.
[296] _State_ v. _Powell_, 7 N. J. (L.), 269; _Davis_ v. _State_,
38 Ind. 37; _Gardner_ v. _People_, 6 Parker, C. C. 202; overruling,
_Wilson_ v. _People_, 4 Park., C. C. 619; _State_ v. _Jones_, 68 N. C.
443.
[297] _State_ v. _Smith_, Supra; _Regina_ v. _Stitt_, 30 U. C. C. P.
30; _State_ v. _Wood_, 53 N. H. 484.
[298] _State_ v. _Bowman_, 78 N. C. 509; _State_ v. _Slagh_, 83 N. C.
630.
[299] _Com._ v. _Sturtevant_, 117 Mass. 122.
[300] _Newell_ v. _Doty_, 33 N. Y. 83; _Buell_ v. _N. Y. C._, 31 N. Y.
Ct. of App. 314; _Matteson_ v. _N. Y. C._ 62 Barb. 366; S. C. 35 N. Y.
487.
[301] 11 Allen, 322.
[302] _R._ v. _Whitehead_, 3 C. & K. 203; _Rich_ v. _Pierpont_. 3 F. &
F. 36; _Twombly_ v. _Leach_, 11 Cush. 405.
[303] _Mertz_ v. _Detweeler_, 8 W. & S. 376; _Wright_ v. _Hardy_, 22
Wisc. 368.
[304] _Leighton_ v. _Sargent_, 11 Fost. N. H. 120; _Williams_ v.
_Poppleton_, 3 Oregon, 139; _Hoener_ v. _Koch_, 84 Ill. 408; _Ramadge_
v. _Ryan_, 9 Bing. 333.
[305] _State_ v. _Clark_, 12 Ired. 151; _Page_ v. _Barker_, 40 N. H.
477.
[306] _Ramadge_ v. _Ryan_, 9 Bing. 335; _R._ v. _Searle_, 1 M. & Rob.
75; _Fenwick_ v. _Bell_, 1 C. & Kir. 312; _Gibson_ v. _Williams_, 4
Wend. 320; _Morse_ v. _State_, 6 Conn. 9.
[307] _Kennedy_ v. _People_, 39 N. Y. 245.
[308] _New England Glass Co._ v. _Lovell_, 7 Cush. 319.
[309] _Ramadge_ v. _Ryan_, supra; _Campbell_ v. _Richards_, 5 B. & Ad.
840.
[310] _Reynolds_ v. _Robinson_, 64 N. Y. 595; _Shafer_ v. _Deans
ad’mor_, 29 Ia. 144.
[311] _Linn_ v. _Sigsbee_, 67 Ill. 75; see _Bradbury_ v. _Barden_, 35
Conn. 580.
[312] 2 Taylor’s Evid., sec. 1259; 1 Wharton’s Evid., sec. 492.
[313] Bost. Med. and Sur. Journ., Feb. 25. 1869.
[314] Grier, J., in _Winans_ v. _N. Y. & E. R._ 21 How. (U. S.) 88.
[315] Taylor’s Med. Jur. 6 Am. Ed. 53.
[316] Vol. i. p. 103.
[317] Redfield on Wills, vol. i. cap. 3, sec. 13.
[318] Sec. 195.
[319] De Divinatione, II. 58.
[320] _Com._ v. _Rodgers_, 7 Metc. 5.
[321] Wharton on Mental Unsoundness, sec. 293.
[322] _Thomas_ v. _State_, 40 Texas, 65; _Parmell_ v. _Com._, 86
Pa. St. 260; _Jarrett_ v. _Jarrett_, 11 W. Va. 627; _Flynt_ v.
_Bodenhamer_, 80 N. C. 205.
[323] _Rex_ v. _Searle_, 1 Mood. & Rob. 75; _R._ v. _Offord_, 5 C. &
P. 168; _McAllister_ v. _State_, 17 Ala. 434; _Delafield_ v. _Parish_,
25 N. Y. 9; _Com._ v. _Rodgers_, 7 Metc. 5; _Clark_ v. _State_, 12 Oh.
483; _Davis_ v. _State_, 35 Ind. 496.
[324] _Puryear_ v. _Reese_, 46 Tenn. 21; _White_ v. _Bailey_, 10 Mich.
155; _Dickenson_ v. _Barber_, 9 Mass. 225.
[325] _People_ v. _McGann_, 3 Parker Cr. Cas. 272, 298.
[326] _White_ v. _Bailey_, 10 Mich. 155; _Fairfield_ v. _Bascomb_, 35
Vt. 398.
[327] _R._ v. _Richards_, 1 F. & F. 87.
[328] _Lovatt_ v. _Tribe_, 3 F. & F. 9.
[329] _R._ v. _Higginson_, 1 Car. & R. 129; _R._ v. _Searle_, 1 Mood. &
Rob. 75; _Malton_ v. _Nesbit_, 1 C. & P. 72; _R._ v. _Wright_, Russ. &
Ry. 456; see also, _Tingley_ v. _Congill_, 48 Mo. 297.
[330] _R._ v. _Frances_, 4 Cox C. C. 57; _R._ v. _Searle_, sup.
[331] _Page_ v. _State_, 61 Ala. 18; _Davis_ v. _State_, 38 Md. 41.
[332] _Fairchild_ v. _Bascomb_, 35 Vt. 398; _State_ v. _Windsor_, 5
Harring. 512; _U. S._ v. _McGlue_, 1 Curtis C. C. 1; _McAlister_ v.
_State_, 17 Ala. 434; _Woodbury_ v. _Obear_, 7 Gray, 467; _Hunt_ v.
_Lowell Gas Light Company_, 8 Allan, 169.
[333] 10 Clark & Fin. 200.
[334] _Com._ v. _Rodgers_, 7 Metc. 5.
[335] _U. S._ v. _McGlue_, 1 Cur. C. C. 1.
[336] _Burton_ v. _Scott_, 3 Rand. 399; 27 A. L. J. 148.
[337] _Com._ v. _Rich_, 14 Gray, 335; _Hastings_ v. _Rider_, 99 Mass.
625; _Russell_ v. _State_, 53 Miss. 36.
[338] _Heald_ v. _Wing_, 5 Me. 392; _Whetherbee_ v. _Whetherbee_, 38
Vt. 454.
[339] 27 Alb. L. J. 126.
[340] Glenn’s Laws of Med. Men, p. 212.
[341] _Cawdry_ v. _Highley_, Cro. Car. 270; Godb. 441.
[342] _Bill_ v. _Neal_, 1 Sev. 52.
[343] _Flower’s_ Case, Cro. Car. 211; _Wharton_ v. _Brook_, Vent. 21.
[344] _Southee_ v. _Denny_, 1 Ex. 196.
[345] _Bergold_ v. _Puckta_, 2 Thomp. & C. N. Y. 532.
[346] _Johnson_ v. _Robertson_, 8 Port. R. 586; _Poe_ v. _Mondford_,
Cro. Eliz. 620; _Tutty_ v. _Alewin_, 11 Mod. 221; _Secord_ v. _Harris_,
18 Barb. 425; see, also, _Watson_ v. _Vanderlash_, Het. 69.
[347] _Davis_ v. _Ockham_, Sty. 235; _Edsall_ v. _Russell_, 4 M. & G.
1090.
[348] _Southee_ v. _Denny_, 1 Ex. 196; _Ramadge_ v. _Ryan_, 9 Bing. 333.
[349] _Long_ v. _Chubb_, 5 C. & P. 55; _Allen_ v. _Eaton_, 1 Roll. Abr.
54; _Goddart_ v. _Haselfoot_, 1 Viner’s Abr. (S. A.) pl. 12; _White_ v.
_Carroll_, 42 N. Y. 161.
[350] _Ayre_ v. _Craven_, 2 Ad. & E. 2.
[351] _Clarke_ v. _Freeman_, 11 Beav. 112; _Ramadge_ v. _Wakley_, cited
9 Bing. 333.
[352] Odgers on Libel and Slander, p. 50.
[353] _Hunter_ v. _Sharpe_, 4 F. & F. 983; and see _Morrison_ v.
_Harmer_, 4 Scott, 524.
[354] _Macleod_ v. _Wakley_, 3 C. & P. 311.
[355] _Sugoe’s_ Case, Hetl. 175; _Edsall_ v. _Russell_, 4 M. & G. 1090.
[356] _Rodgers_ v. _Cline_, 56 Miss. 808; _Camp_ v. _Martin_, 23 Conn.
86; _Jones_ v. _Diver_, 22 Ind. 184.
[357] _Collins_ v. _Carnegie_, 1 A. & E. 695.
[358] _Skirving_ v. _Ross_, 31 C. P. (Ont.) 423.
[359] _Ayre_ v. _Craven_, 2 A. & E. 2; _Dixon_ v. _Smith_, 5 H. & N.
450.
[360] Anon. 1 Ham. 83; _Foster_ v. _Small_, 3 Whart. 138.
[361] _Clay_ v. _Roberts_, 9 Jur. (N. S.) 580.
[362] Odgers on Slander, p. 69; _Rutherford_ v. _Evans_, 4 C. & P. 79;
_Collins_ v. _Carnegie_, 1 Ad. & E. 697; _Moises_ v. _Thornton_, 3 Esp.
4; _Wakley_ v. _Healey_, 4 Ex. 53.
[363] _Van Tassel_ v. _Capson_, 1 Denio. 250; _Kinney_ v. _Nash_, 3
Comst. 177; _Ayre_ v. _Craven_, sup.
[364] Glenn’s Laws of Med. Men, 230; _Harrison_ v. _Bush_, 5 El. & B.
344.
[365] Per Pigot, C.B., in _Bell_ v. _Parke_, 10 Ir. C. L. Rep., N. S.,
288.
[366] _Humphreys_ v. _Stilwell_, 2 F. & F. 590; _Murphey_ v. _Kellett_,
13 Ir. C. L. Rep. N. S. 688.
[367] _Alpen_ v. _Morton_, 21 Oh. St. 536.
[368] _Clarke_ v. _Hawke_, 9 Grant, 52; _Denison_ v. _Denison_, 13 Gr.
596; _Hoghton_ v. _Hoghton_, 15 Beav. 299; _Haguenin_ v. _Baseley_, 14
Ves. 300; Story, I Eq. Jur. sec. 314. But see _Andeureid’s_ Appeal, 89
Pa. St. 114; _McEwan_ v. _Milne_, 5 Ont. R. 100.
[369] Law Rep. 1 Ch. 252.
[370] _Hoghton_ v. _Hoghton_, sup.; _Dent_ v. _Bennett_, 4 Myl. & C.
276; _Cadwallader_ v. _West_, 48 Mo. 483.
[371] _Clarke_ v. _Hawke_, sup.; _Dent_ v. _Bennett_, sup.
[372] _Dent_ v. _Bennett_, sup.; _Gibson_ v. _Russell_, 2 Y. & Coll. C.
C. 104; _Popham_ v. _Brooke_, 5 Russ. 104.
[373] _Cadwallader_ v. _West_, 48 Mo. 483.
[374] _Allan_ v. _Davis_, 4 De G. & Sim. 133.
[375] _Billage_ v. _Southbee_, 9 Hare, 534, 540.
[376] _Peacock_ v. _Kesnot_, 8 L. T. 292; _Wright_ v. _Proud_, 13 Ves.
136.
[377] _Pratt_ v. _Barker_, 1 Sim. 1.
[378] _Mitchell_ v. _Homfray_, 8 Q. B. D. 587.
[379] _Aheare_ v. _Hogan_, Dru. 322.
[380] _Doggett_ v. _Lane_, 12 Mo. 215.
[381] _Middleton_ v. _Sherbourne_, 4 Y. & Coll. 358.
[382] _Jones_ v. _Godrich_, 5 Moo. P. C. 16.
[383] _Farlar_ v. _Lane_, 29 L. T. 2; _Jones_ v. _Godrich_, 5 Moo. P.
C. 16; _Reece_ v. _Pressey_, 2 Jur. N. S. 380.
[384] _Greville_ v. _Lylee_, 7 Moo. P. C. 320; _Durnell_ v. _Corfield_,
3 L. T. 323; 1 Robarts, 51; _Major_ v. _Knight_, 4 N. C. 661.
[385] _Ashwell_ v. _Lomi_, L. R. 2 P. & D., 477. See also _Crispell_ v.
_Dubois_, 4 Barb. 393.
[386] _Hides_ v. _Hides_, 65 How. Pr. Rep. 17; _Middleton_ v.
_Sherburne_, 4 Y. & Coll. 358.
[387] _Brown_ v. _State_, 9 Baxter, 45.
[388] _Seavey_ v. _Preble_, 64 Me. 120.
[389] 3 Co. Inst. 203; 20 A. L. J. 320.
[390] _Reg._ v. _Cuddy_, 1 C. & K. 210; _Reg._ v. _Coney_, L. R. 8 Q.
B. D. p. 569.
[391] _R._ v. _Case_, 19 L. J. M. C. 174; _R._ v. _Stanton_, 1 Car. &
Kir. 415.
[392] _Rex_ v. _Rosinski_, 1 Moo. C. C. 19.
[393] _De May_ v. _Roberts_, 46 Mich. 160; 41 Am. Rep. 154.
[394] _Pennell_ v. _Cummings_, 75 Me.
[395] _Fletcher_ v. _Fletcher_, 1 E. & E. 420; _Anderson_ v. _Burrows_,
4 C. & P. 210.
[396] _Hall_ v. _Semple_, 3 F. & F. 337.
[397] _Scott_ v. _Wakem_, 3 F. & F. 333.
[398] R. S. O. cap. 220, secs. 8, 9; 16 & 17 Vict. cap. 96, secs. 4 &
5; (Imp. Stat.).
[399] _Reg._ v. _West_, 2 C. & K. 784.
[400] _R._ v. _West_, 2 C. & K. 784; _Mitchell_ v. _Connor_, 78 Ky.
204; Russell on Crimes, vol. i, pp. 670, 740; _State_ v. _Dickinson_,
41 Wis. 299.
[401] Imp. Stat. 24 & 25 Vict. cap. 100, secs. 58, 59; Can. Stat. 32 &
33 Vict. cap. 20, secs. 59, 60.
[402] _State_ v. _Slagle_, 83 N. C. 630; _State_ v. _Fitzgerald_, 49
Ia. 260.
[403] _State_ v. _Gedicke_, 43 N. J. L. 86; _Reg._ v. _Fraser_, 9 Cox
C. C. 228; _Reg._ v. _Hannah_, 13 Cox, C. C. 54.
[404] _Bradford_ v. _People_, 20 Hun. (N. Y.) 309.
[405] _Rex._ v. _Burnett_, 4 M. & S. 272; _Rex._ v. _Sutton_, 4 Burr.
2116; _Rex._ v. _Vantandillo_, 4 M. & S. 73.
[406] 3 & 4 Vict. cap. 29, sec. 8; 30 & 31 Vict. cap. 84, sec. 32.
[407] 16 Vict. cap. 170, sec. 1.
[408] _Carson_ v. _State_, Ala. Sup. Ct. Dec. 1881; 25 A. L. J. 366;
_State_ v. _Kansas_, 29 Kans. 384; and see post Druggists.
[409] R. S. Ont. cap. 142, sec. 34; _Reg._ v. _Coll. of P. & S._, 44
Ont. Q. B. 146.
[410] _Boynton_ v. _Somersworth_, 58 N. H. 321.
[411] _Hitchcock_ v. _Burgett_, 38 Mich. 501.
[412] 32 Hy. VIII., cap. 42.
[413] 2 & 3 Wm. IV., cap. 75.
[414] 32 & 33 Vict., cap. 29, sec. 100.
[415] 1 Jac. I., cap. 12.
[416] 1 Russ. on Crimes, 465.
[417] 3 Inst. 110; 12 Co. 113 a.
[418] 2 East P. C. 652.
[419] _Williams_ v. _Williams_, L. R., 20 Ch. D. 659; _Reg._ v.
_Sharpe_, Dea. and Bell, C. C. 160.
[420] Am. Law T., July, 1871.
[421] _Guthrie_ v. _Weaver_, 1 Mo. App. 136; 4 Brady, 502; _Wynkoop_ v.
_Wynkoop_, 6 Wright, 293.
[422] _Bogert_ v. _Indianapolis_, 13 Ind. 138.
[423] Willcock, cap. 10.
[424] 2 East P. Cr. 652; _R._ v. _Gilles_, Russ. & Ry. 366, n.; _R._
v. _Lynn_, 2 T. R. 733; _Reg._ v. _Sharpe_, 1 D. & B. 160; _Reg._ v.
_Price_, L. R. 12 Q. B. D. 247.
[425] _Tate_ v. _State_, 6 Black. (Ind.) 111; _Com._ v. _Loring_,
8 Pick. (Mass.) 370; _Com._ v. _Marshall_, 11 Pick. 350; _Com._ v.
_Cooley_, 10 Pick. 37.
[426] 2 R. S. 688, sec. 13.
[427] 23 Albany L. J. 421.
[428] R. S. O. cap. 143.
[429] _Tate_ v. _State_, 6 Black. 111.
[430] 2 Com. 429.
[431] _Meagher_ v. _Driscoll_, 99 Mass. 281; _Barnstable_ v.
_Thatcher_, 3 Metc. 243; _Bracegirdle_ v. _Orford_, 2 M. & S. 77;
_Brewer_ v. _Dero_, 11 M. & W. 625.
[432] _Granger’s Ins. Co._ v. _Brown_, 57 Miss. 308.
[433] 32 Henry VIII. cap. 42.
[434] R. S. O. cap. 144.
[435] _Simonds_ v. _Henry_, 39 Me. 153.
[436] Glenn’s Laws, p. 251.
[437] McClelland’s Civil Malpractice, p. 19.
[438] _Eakin_ v. _Brown_, 1 E. D. Smith, 36.
[439] _Clarke_ v. _Kerwin_, 4 E. D. Smith, 21: _Parker_ v. _Adams_, 12
Metc. 417.
[440] _Keily_ v. _Cotton_, 26 Alb. L. J. 483.
[441] _Boyle_ v. _Winslow_, 5 Phil. (Pa.) 136.
[442] Russell on Crimes, vol. I. p. 720.
[443] Taswell-Langmead, English Constit. History, p. 41.
[444] _Street_ v. _Blackburn_, 1 H. Bl. 159; _Wilson_ v. _Brett_, 11 M.
& W. 113.
[445] _Hancke_ v. _Hooper_, 7 C. & P. 81.
[446] Glenn’s Laws, p. 209.
[447] Peake’s N. P. C. 83, 84.
[448] _Piper_ v. _Menifee_, 12 B. Monr. 465.
[449] _Simonds_ v. _Henry_, 39 Me. 155.
[450] _Slater_ v. _Balter_, 2 Wils. 359, 362.
[451] _Lee_ v. _Griffin_, 1 E. B. & S. 272.
[452] _Maxon_ v. _Perrott_, 17 Mich. 332.
[453] _Whitcomb_ v. _Reid_, 31 Miss. 567.
[454] _Gilman_ v. _Andrews_, 28 Vt. 24.
[455] _Allen_ v. _Davis_, 4 DeG. & S. 133.
[456] 4 My. & C. 269.
[457] _Colton_ v. _Thomas_, 2 Brews. 308.
[458] _Morgan_ v. _Schuyler_, 79 N. Y. 490; S. C. 35 Am. Rep. 543.
[459] _State_ v. _Holmes_, 28 La. Ann. 765.
[460] _Mills_ v. _Perkins_, 120 Mass. 41.
[461] _Klock_ v. _Burger_, 50 Md. 575.
[462] _Haniline_ v. _Commonwealth_, 13 Bush. 350.
[463] R. S. O. cap. 145.
[464] Code of Med. Pol. 332, 333.
[465] 55 Geo. III., cap. 194, sec, 5.
[466] 13 B. Monr. 219.
[467] _Jones_ v. _George_, 13 Rep. 738; Tex. Sup. Ct. (1882).
[468] Chitty on Contracts, p. 393.
[469] _Howe_ v. _Young_, 16 Ind. 312; 2 Hilliard on Torts, p. 297, sec.
A.
[470] _Brown_ v. _Marshall_, 47 Mich. 576.
[471] _VanBracken_ v. _Fondar_, 12 John. 468; _Jones_ v. _Murray_, 3
Monr. 85; _Marshall_ v. _Peck_, 1 Dana. 609.
[472] Ordronaux, secs. 183–184.
[473] 2 Selden, 397, (N. Y.)
[474] 2 R. S. sec. 662, 319.
[475] 2 Car. & Kir. 368.
[476] _Hansford_ v. _Payne_, 11 Bush. 380.
[477] _Norton_ v. _Sewall_, 106 Mass. 143.
[478] _Ibid._
[479] _George_ v. _Skivington_, L. R. 5 Exch. 1.
[480] _Davidson_ v. _Nicholls_, 11 Allen, 514.
[481] _R._ v. _Noakes_, 4 F. & F. 920.
[482] 1 Lewin C. C. 169.
[483] 4 F. & F. 525.
[484] _Wohlfarht_ v. _Beckert_, 27 Hun, 74: 92 N.Y. 490.
[485] R. S. O., c. 145, sec. 27.
[486] Sections, 28–31.
[487] _Ray_ v. _Burbank_, 6 Ga. 505.
[488] 56 Geo. III. cap. 58, sec. 3; 31 & 32 Vict. cap. 121, sec. 24; 23
& 24 Vict. cap. 84, sec. 30.
[489] _Hoard_ v. _Peck_, 56 Barb. 202.
[490] _Common._ v. _Ramsdell_, 130 Mass. 68.
[491] _State_ v. _Laffer_, 38 Iowa, 422; _Common._ v. _Ramsdell_,
supra; _Common._ v. _Hallett_, 103 Mass. 452; _Common._ v.
_Butterrick_, 6 Cush. 247.
[492] _Nixon_ v. _State_, 76 Ind. 524; _State_ v. _Wray_, 72 N. C. 253;
_Woods_ v. _State_, 36 Ark. 36; S. c. 38 Am. Rep. 22.
[493] _State_ v. _Knowles_, 57 Iowa, 669.
[494] _Boone_ v. _State_, 10 Tex. Ct. App. 418.
[495] See Glenn’s Laws, cap. viii.
[496] _Jauncey_ v. _Knowles_, 29 L. J. Cha. 95.
[497] _Mackenna_ v. _Parkes_, 36 L. J. Cha. 366.
[498] _Turner_ v. _Reynall_, 14 C. B. N. S. 328. See, also, _Reg._ v.
_Tefft_, 45 Ont. Q. B. 144.
[499] _Anon._, cited 2 K. & J. 446.
[500] _Farr_ v. _Pearce_, 3 Mad. 74; _Austen_ v. _Boys_, 24 Beav. 598;
2 DeG. & J. 626.
[501] _McIntyre_ v. _Belcher_, 10 Jur. N. S. 239.
[502] _Christie_ v. _Glark_, 16 (Ont.) C. P. 544; 27 Q. B. 21.
[503] _May_ v. _Thomson_, L. R. 20 Ch. D. 718.
[504] _Dingnan_ v. _Walker_, 33 L. T. 256.
[505] _Davis_ v. _Mason_, 5 T. R. 118; _Carnes_ v. _Nesbitt_, 7 H. & N.
778; _Sainter_ v. _Ferguson_ 7 C. B. 716; _Hastings_ v. _Whitley_, 2
Ex. 611; _Haynard_ v. _Young_, 2 Chit. 407; _McClurg’s Appeal_, 58 P.
St. 51; Parsons on Contracts, vol. ii. p. 748.
[506] _Mallan_ v. _May_, 11 M. & W. 653.
[507] _Horner_ v. _Graves_, 7 Bing. 735.
[508] _Mallan_ v. _May_, supra. Generally on this subject, see Glenn’s
Laws, cap. viii.
[509] Glenn’s Laws, cap. viii.
[510] _Nickson_ v. _Brohan_, 10 Mod. 109.
[511] _Hancke_ v. _Hooper_, 7 C. & P. 81.
[512] _R._ v. _Bennett_, 29 L. J.; M. C. 27; _R._ v. _Tessymond_, 1
Lewin C. C. 169.
[513] _Wise_ v. _Wilson_, 1 C. & K. 662.
[514] _Abernethy_ v. _Hutchinson_, 3 L. J, 209; _Nicols_ v. _Pitman_,
L. R. 26 Ch. D. 374.
TRANSCRIBER’S NOTE
Original printed spelling and grammar are retained, with a few
exceptions noted below. The corrections suggested in the CORRIGENDA
have been applied. Small caps are changed to all capital letters.
Italics _look like this_. Original printed page numbers look like this:
“|81|”. Footnotes were changed to endnotes, and renumbered 1–514. One
common printer’s error has been corrected silently; fairly often a
short word such as “a” was printed twice on successive lines. Thus, for
example, a sentence on page 99 originally read “And a a very recent
writer says . . . .”
In the index, ditto marks and white space were used in combination to
indicate words repeated from line to line. In this edition, em dashes
are used instead. Thus the line beginning “Provision made for study
of, in England”, was printed with two ditto marks and white space
sufficient to indicate the first five words repeated; herein rendered
“— — — — — in Canada”.
Page v. “Practioners” changed to “Practitioners”.
Page viii. “Connnecticut” to “Connecticut”.
Page 12. “distingushed” to “distinguished”.
Page 26. “carlessness” to “carelessness”.
Page 36. “chairvoyant” to “clairvoyant”.
Page 58. The quotation beginning in the last paragraph has no closing
mark.
Page 74. Closing quotation mark added after “for a misfeasance”.
Page 66. “exibibit” to “exhibit”.
Page 80. “probablity” to “probability”.
Page 84. “adminster” to “administer”.
Page 101. The quotation beginning ‘Again, “where books are thus
offered’ has no closing quotation mark.
Page 104 note. Unmatched left curly bracket removed from “1 Houston Cr.
Cas. (Del. 371”.
Page 106. “Uuited” to “United”. Also, “or there probable effect” is
retained because it is in a quotation.
Page 115. Closing double quotation mark added after ‘are wholly
inadmissible as evidence.’
Page 121. This partial sentence: ‘gives the following, “In a case of
alleged child murder a medical witness, being asked for a plain opinion
of the cause of death, said, that it was owing to “atelectasis and a
general engorgement of the pulmonary tissue.”’ was changed to ‘gives
the following, “In a case of alleged child murder a medical witness,
being asked for a plain opinion of the cause of death, said, that it
was owing to ‘atelectasis and a general engorgement of the pulmonary
tissue’.”’
Page 126. Closing quotation mark was added to the end of the paragraph
containing the following opening mark: ‘judges replied, “We think’.
Page 128. “Massachussetts” to “Massachusetts”.
Page 130. “physican” to “physician”.
Page 134 note. “(N. S.) 580)” retained despite evident error.
Page 155. Full stop removed from “chiefly murderers.;”.
Page 172. “particnlar” to “particular”.
Page 177. Closing quotation mark added to the end of the paragraph
containing the following opening mark: ‘Court refused it saying,
“Purchasers have to trust’.
Page 181. “manslaugher” to “manslaughter”.
Page 184 note. The rightmost right parenthesis was removed from “_Clay_
v. _Roberts_, 9 Jur. (N. S.) 580)”.
Page 191 note. “_Christie_ v. _Glark_” is retained; but there is no
mention of this case in the TABLE OF CASES CITED beginning on page vii.
Page 209, Index, Heading “Parent and Child”. “Liablility” to
“Liability”.
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