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Title: Golden rules of medical evidence: "Golden Rules" Series. No. XVI.
Author: Atkinson, Stanley B.
Language: English
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*** Start of this LibraryBlog Digital Book "Golden rules of medical evidence: "Golden Rules" Series. No. XVI." ***
EVIDENCE ***
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GOLDEN RULES
OF
MEDICAL EVIDENCE.
BY
STANLEY B. ATKINSON,
M.A., M.B., B.Sc.
_of the Inner Temple, Barrister-at-Law;
a Justice of the Peace for the County
of London; Hon. Sec. of the
Medico-Legal Society_
(_London_).
_“GOLDEN RULES” SERIES. No. XVI._
Bristol:
JOHN WRIGHT & CO.
London:
SIMPKIN, MARSHALL, HAMILTON, KENT & CO., LTD.
PREFACE.
The science, the art, and the correct estimation of the value of
Medical Evidence is the province of Forensic Medicine.
It is hoped that this little book will aid the General Practitioner
when he is called upon to offer medical testimony, so that the
ancient inquest jury especially may fully appreciate the bearing of
the technical facts he narrates. Those who pose as “experts,” should
_ipso facto_ be themselves authorities on the matter and the manner
of bearing testimony.
STANLEY B. ATKINSON,
_10, Adelphi Terrace, W.C._
INDEX.
PAGE
Alleged drowning, uncertainty concerning, 47
— overlaying, uncertainty concerning, 47
— still-birth, uncertainty concerning, 47
Blood-circulation preceding sudden death, 48
Civil actions, the fees in, 44
Common witnesses of facts, 8
Coroner’s court, constitution of, 8
— — the fees in, 39
Criminal proceedings, the fees in, 41
Dead, the examination of, 21
Deglutition and peristalsis preceding sudden death, 48
Drawing up a medico-legal report, 24
Evidence, classes of, 8
— given before entering court, 10
— in court after being sworn, 30
— in court before being sworn, 28
Examination of the dead, 21
— of the living and the dying, 18
— of the living, dying, and dead, 17
Expert witnesses, 9
Fees, the rules as to, 39
Hearsay testimony, when receivable, 50
Limitations imposed by inadequacy of knowledge, 46
Limitations to medico-legal evidence, 45
Living and dying, the examination of, 18
Manner, the, of giving medical evidence, 30
Matter, the, to be given in medical evidence, 33
Medical certificates, when not to be given, 11
— evidence, the manner of giving, 30
— — the matter to be given, 33
Medico-legal report, the manner of, 24
— — the matter of, 26
Neuromuscular action and sudden death, 49
_Post-mortem_ evidence, limitations of, 47
Precautions under suspicious circumstances, 52
Preparation of evidence, 14
Preparing and giving evidence, 10
Respiration preceding sudden death, 48
Rules as to fees, 39
— of evidence, limitations imposed by, 45
Slow poisoning, if suspected, how to act, 52
Stepping stones of medical evidence, 57
Sudden death, vital activities preceding, 48
Suicide, threatened or attempted, 54
To escape attending as witness, 13
Vital activities preceding sudden death, 48
Witness, to escape attending as, 13
Witnesses, classes of, 8
_Golden Rules of Medical Evidence._
Every legally qualified and registered medical practitioner in actual
practice in or near the place where the death in question happened,
by the Coroners Act, 1887, may be summoned by the Coroner to give
medical evidence as to the cause of that death. Thus medical men may
be compelled to practise medical jurisprudence if called upon so to
do. With the growth of knowledge and exact observation, the weight
which is attached to medical evidence has increased proportionately.
It is still true, however, that “the exercise of a sound judgment,
which is of far more value in medico-legal matters than all the
substance of all the ancient _medicina forensis_, must be our guide.”
The =Coroner’s Court= differs from other tribunals in that,
primarily, it conducts an enquiry to which there are no formal
parties. The evidence received by this Court is on that account much
less bound by technical rules.
CLASSES OF MEDICAL EVIDENCE AND WITNESSES.
_The evidence of_
=I. Common witnesses of Facts which they have observed.= They
state the minor premiss of the forensic argument. Those who can
describe technical matters which they have seen are _skilled common
witnesses_: medical men usually appear in court as skilled witnesses.
Job’s “I shall see for myself, and my own eyes shall behold, and not
another,” indicates the correct attitude of a common witness of fact.
_The testimony of_
=II. Expert witnesses concerning their Opinions.= They state the
major premiss of the syllogism, whose conclusion is found in
the verdict of the jury. All expert witnesses should be skilled
witnesses. Experts sometimes become common witnesses when examined
as to exhibits produced in court. The weakness of expert testimony
is, in practice, its _ex parte_ nature. Medical men called to give
evidence as to fact, must beware of being unconsciously drawn into
offering expert testimony.
I. PREPARING AND GIVING EVIDENCE.
=A. BEFORE ENTERING COURT.=
Notify directly to the Coroner all deaths, the certificate of the
cause of which you are unable to sign (persons found dead—whose death
was caused or hastened by accident or injury—who have died without
recent medical attendance—who, although attended by a registered
medical practitioner during the last illness, have died in such a
manner or at such a time, that the medical man is unable to assign a
cause of natural death, or for some good reason declines to certify
the cause).
Most of the cases in which you give medical evidence are those in
which you have declined to sign a certificate of the cause of death.
There are also those cases in which the relatives object to your
treatment, and those in which the registrar refers your certificate
to the Coroner.
The fact that the account for professional services rendered is
likely to be unpaid is =not= a good reason for refusing to sign a
death certificate.
=Decline to give medical certificates= to police-constables or to
solicitors’ clerks gratuitously, and without authority being shown.
Demand a formal interview by appointment during professional hours
with a responsible superior; otherwise you may receive no fees.
Volunteer no private information, and express no opinion in public,
concerning medico-legal causes with which you are not personally
concerned; otherwise you may be _sub-pœna’d_ to support your views.
If you know facts which will aid the execution of justice, give a
=hint to the police= either yourself or by a medical friend.
Give information _viva voce_ or in letters marked “private.” Never
write an unofficial opinion. “Do right, and don’t write—then fear
nothing.”
Should you receive threatening letters, demanding blackmail, or
otherwise without reasonable cause, at once put them into a good
solicitor’s hands. “Let this action be a lesson for all men to stand
boldly forward—to stand on their character—and not, by compromising
a present difficulty, to accumulate imputations on their honour.”
Associate yourself permanently with a Medical Defence Society.
Unless in self-protection, or at the request of patients, do not
appear in court without having been properly served with a formal
_sub-pœna_.
Do not fail to attend after receiving a formally served _sub-pœna_,
on peril of contempt of court and an action for resulting damages
on the part of the litigant calling you as a witness. You need not
afford a _precis_ of your evidence. “He [or they] must be satisfied
with impromptu answers.” When in doubt or difficulty, seek at once
the best legal advice possible.
TO ESCAPE ATTENDING AS A WITNESS:
=In Coroners’ Courts.= Written certificates are usually accepted in
Coroners’ Courts from members of hospital staffs and from general
practitioners concerning the absence from ill-health of witnesses or
jurymen; the nature of the illness need not be specified. In higher
Courts personal attendance and evidence upon oath are necessary.
=In Civil Courts.= If an appeal to the solicitor fails, you may
state that your memory of the events in question is vague, and when
prompted you may find that the facts as known to you are quite
hostile to his client’s claim.
You may decline to offer “=expert opinions=”—a direct interference
with the facts and circumstances of the case alone =qualifies= you as
a common skilled witness who is bound to give evidence if required so
to do.
THE PREPARATION OF EVIDENCE.
“More mistakes are made, many more, by not looking than by not
knowing.” You must be ready to meet an =exhaustive interrogation= in
Court: hence it is essential that a careful clinical or _post-mortem_
examination should be made, with the aid of all reasonable modern
apparatus, and that what is known professionally concerning the
matters in hand should be revised from modern text-books: your
knowledge of pathology must be up-to-date. “You must know a thing
before you suspect it, and you must suspect a thing before you find
it.”
=Remember= you are not a partisan: value accuracy of observation and
of statement as you do your professional reputation.
You must be prepared to =explain facts and conclusions clearly= to a
body of laymen.
=Beware= of mistaking a previously formed inference for a
recollection of actual fact—assumed conclusions sometimes
fallaciously suggest the real cause. “The chambermaid, in the
background, made out as much of the letter as she could, and
invented the rest; believing it all from that time forth as a
positive piece of evidence.” _Stat pro ratione voluntas_ is a fallacy
to be guarded against.
Welcome, and even suggest, =conferences= which will avoid subsequent
public differences in medical opinions.
Decide what exhibits and sketches you will hand in. Label, initial,
and number them. If they are returned to you after the trial,
preserve them for possible future use (e.g., pathological specimens).
Previous to the trial keep all notes and exhibits =under lock and
key=.
=Remember= medico-legal evidence is subject to certain
=limitations=—your “facts” may be absolute, or probable, or merely
possible (see p. 45).
=Refresh the memory= from your clinical or other notes just before
giving evidence rather than when in the witness box.
Any =notes read in the witness box= are open to the inspection of the
Court. They must have been made by you at the time of the event in
question, or immediately thereafter.
All clinical notes and personal memoranda should be destroyed upon
the death of a medical practitioner, who should see that his Will
contains such a direction.
MEDICO-LEGAL EXAMINATION OF THE LIVING, THE DYING, AND THE DEAD.
“The best memory is a record =made at the time=.”
=Make a note on the spot= as to the person examined, the place, the
date, and hour of the commencement of the examination. Daylight
should be chosen.
If possible, choose a time such that you can complete the enquiry at
one sitting, as it may be final.
Where criminal charges may arise, =associate the police= (and, when
necessary, the relieving officer) with the case at once. If called
by a police-constable, do not fail to note down his number (from his
collar).
=Decline= to perform technical processes which are probably beyond
your skill: thus the Coroner will usually secure the permission of
the County Council for analyses in suspected poison cases.
=Exclude lawyers and curious laymen=, but invite another medical man,
especially if your own previous actions may be in question.
Whatever you discover must be =kept secret= until you give evidence
in court. As a matter of courtesy, the Coroner may be informed
privately, before the inquest is held, of any unexpected or grave
results; do not, however, inform press men.
MEDICAL EXAMINATION OF THE LIVING AND OF THE DYING, FOR THE PURPOSE
OF EVIDENCE.
All persons examined physically =must be informed= of, and =consent=
to, the purpose and possible legal consequences.
Never take directions from a third person (e.g., police, magistrate,
employer).
If a =further examination= may be necessary (e.g., under an
anæsthetic), that fact should be stated.
=Witnesses= should be present, especially in the case of the
examination of females.
=Do not send written certificates= to third persons as to the result
of the examination, unless (1) In an open envelope, having read the
certificate to the patient who takes it to its destination; (2) After
having received the written consent of the patient so to do.
The payment of the fee by a third person does not absolve from the
rule of professional secrecy.
The symptoms and =feelings of a patient= are sometimes admitted as
(hearsay) testimony from a medical witness, especially where the
former is dead. =Letters= from a patient to a medical man containing
such statements are not allowed.
A =confession= (which must be quite voluntary) or a =dying
declaration= (from the lips of a victim of homicide convinced
of impending death) made in the hearing of a medical man should
be noted down at once, word for word, and, in the absence of a
magistrate, signed by all persons present. Should death be imminent
after a criminal assault (which includes abortion), the medical man
should urge the victim to make such a dying declaration.
If a patient is sent to gaol or an asylum, communicate at once, but
privately, with the medical officer should you know of any =mental or
physical abnormality=.
EXAMINATION OF THE DEAD.
=Do not order the removal= of a dead body; leave that duty to the
police or to the Coroner’s officer.
=Forbid=, however, any disturbance of a body to which you are called
until you have seen it and the circumstances.
1. Where the Coroner orders “evidence touching the external
appearance of the body, and the cause of the death”:
The body should be identified in your presence; if it cannot be
identified, special care must be taken with the inspection. A
photograph should be taken at once.
The appearance of the corpse, both when clothed and when stripped,
must be noted.
In all cases the probable time of the death must be estimated.
The presence and nature of parasites must be recorded.
Should the cause of death still =remain obscure= after a complete
inspection, the Coroner should be informed of the fact and requested
to order an anatomical _post-mortem_ examination of the body.
2. Where the Coroner orders a =full post-mortem examination=, thus:
“You are required to make or assist in making a _post-mortem_
examination of the body, which shall comprise an examination of
the viscera of the head, chest, and abdomen, and, if necessary, an
analysis of the contents of the stomach, and report thereon at the
said inquest.” As to the analysis, see the Home Office Circular
(Jan. 7, 1903).
The body must not be opened until the Coroner’s order has been
received; apart from inquests the =consent of relatives= must be
secured before a body is dissected.
Wherever manslaughter or murder is suspected, the Coroner will order
a necropsy as a matter of course.
If the deceased’s friends =charge you with negligence= in treatment,
you must not conduct the examination.
Do not commence =until the body is cold=; do not delay until marked
putrefaction has set in.
Have all necessary appliances at hand; having once started =do not
leave the room= until your final note has been made and signed.
Do not employ a hammer or a chisel.
=Remember= that it is dangerous to attend lying-in women after making
an autopsy.
If the mortuary attendant does the manual work you must watch each
step.
If portions of organs are retained for subsequent examination, have
the fact witnessed.
DRAWING UP A MEDICO-LEGAL REPORT.
In most cases the witness must recite the report in open court.
For a complete investigation three sets of facts must be collated:
1. The details of the environment of the corpse, when and where first
seen.
2. The personality and personal history of the deceased.
3. The result of an exhaustive external and internal _post-mortem_
examination.
_a. The Manner of the Report_:
Reports should be =short= and =distinct=; all unnecessary words
should be omitted.
The paragraphs should be numbered: this facilitates reference.
Names and figures must be written plainly, and underlined.
=Technical terms= should be used only if the report is intended for
the use of a public authority; if used otherwise they should be
explained.
=Beware= of writing “There is no ...” when you intend to report “I
can find no....”
Exclude uncalled-for reasons, opinions, and comments.
“Science is measurement.” Everything that can be, should be
=measured=. Anatomical and chronological order and exactness should
be aimed at.
For immediate comparison, quote easily recognized English standards.
“The _sometimes_ of the cautious is the _often_ of the sanguine, the
_always_ of the empiric, the _never_ of the sceptic: but the numbers
1, 10, 100, 1000 have but one meaning for all mankind.”
In important cases the report should be type-written in duplicate and
signed, one copy being handed to the Court.
_b. The Matter of the Report_:
The date and time of day of each examination, and the names of all
persons present thereat, should be stated.
There must be a very sharp division made between:
(a) =Information= received and from whom—this is hearsay.
“Never believe what a patient says another doctor said.”
Never sign a certificate to oblige another practitioner, without
personally examining the patient.
(b) =Facts= found by personal examination or under personal
supervision.
The results of a complete methodical external (anterior and
posterior) and internal investigation must be detailed; the condition
of the =diseased organs= may be recorded first, the =healthy organs=
being mentioned after, exhaustively.
After entering all the pertinent facts, summarize the =main points=,
and conclude with the =probable cause= of the pathological conditions
found.
=Sign= the report, affixing your medical qualifications and the
date; secure the signature of other medical men who may be present.
While in your care, keep the report under lock and key.
Append any =sketches= or =photographs=, carefully numbered, which
elucidate the case.
Retain an identical copy of the report for reference.
=B. WHEN IN COURT=,
BEFORE BEING “SWORN.”
All testimony given at this stage is null and void, and may render
the speaker liable to an action for defamation. Do not omit to be
“sworn” before speaking.
Should you wish to object to giving evidence on the grounds:
_a._ That your fee (for expenses and loss of time) has not been paid
by the solicitor calling you.
_b._ That you are unwilling to pose as able to give “expert
opinions.”
_c._ That you may possibly incriminate yourself:—
this is the stage at which you should say so.
There is now complete emancipation from “the insanitary oath.” For
the sake of public example you should decline to “kiss the Book”
unless you have brought a Testament with you. Insist on your right
either to affirm or to swear by the Scots method.[1]
AFTER BEING “SWORN.”
Whatever you say in giving evidence will not render you open to an
action for slander.
The privilege of a witness under examination is extended to a witness
making statements to a solicitor preparing his “proof.”
State your full name and address. Then say, “I am a registered
medical practitioner”; your exact qualifications are immaterial.
GIVING MEDICAL EVIDENCE.
(_Cf. Reports, p. 24._)
“There is matter in manner.” “Tell the truth, and make the truth
tell.” “Be the plainest man in the world in the witness box.”
“All trifles are not trifling.” “Pathology creates the doctor, as
distinct from the nurse.”
_The Manner._
Listen to the =whole question= before you attempt to reply: then
answer only what is asked. Make yourself understood.
Don’t assume that the jury know all about the case.
Speak audibly, slowly, deliberately, with an eye on the recording
clerk’s pen.
Say =exactly= what you mean.
Cultivate the power of expression and of repression.
Be candid, courteous, dignified, and withal good humoured; =avoid=
appearing to be suspicious.
Your =personal= disposition will count more with a jury than your
professional position; they will note looks, doubts, hesitations,
confidence, calmness, consideration, or precipitancy.
Use =simple= and popular =terms=, otherwise you may be regarded as
speaking “either oracles or jargon.” Reserve technicalities for
cross-examination. The jury will think they understand “alcoholic
disease of the ...,” “bad disorder,” “black and blue,” “black-eye,”
“blood clot,” “blood poisoning,” “bowel,” “brain fever,” “bruise,”
“buoyant lungs,” “cancer,” “consumptive spots,” “coverings of the
brain,” “death stiffening,” “great vessel of the heart,” “gullet,”
“gut,” “hardened liver,” “hardening of valves,” “inflammation or
congestion of the ...,” “overloaded with fat,” “shrunken kidneys,”
“skull-cap,” “stroke,” “swallow,” “sweet-bread,” “windpipes.”
Don’t worry about the =technical rules= of evidence; in the Coroner’s
Court they are seldom applied strictly.
Insist on answering double-barrelled questions “=Yes= AND =No=” if
necessary.
Do not argue with Counsel; “disagree without being disagreeable.” “A
large experience is not all experience,” and what you call “a rare
case” may reflect upon your limited experience.
An early “I =don’t= know” is better than a late “I =did not= know.”
If you “don’t know,” do not be trapped into guessing. Beware of
“argumentative figures.”
_The Matter._
If unable to decide as to the cause of death without a _post-mortem_
examination, tell the jury so at once; the most experienced
pathologist will do so the most often. Thus you may tell them, by
way of apology, that any organ of the body may be ruptured without
external signs of injury being apparent.
Distinguish =what you have been told= from what you have found by
personal examination.
A knowledge of the facts differs from a knowledge of the records of
those facts.
State what you =knew professionally= as to the health and the habits
of the deceased, but do not condescend to detail; it is sufficient to
say, “I treated him,” or “I prescribed;” you need not specify =how=
unless required so to do.
Don’t offer any explanations unless directly asked; decline to give
“expert opinion” testimony unless you feel fully competent so to do.
The jury value evidence by the exactness of statement of, and the
powers of observation evidenced by, a witness. Little benefit is
gained by cross-examining one who is obviously telling the plain
truth.
Don’t exaggerate or estimate—“blessed are the pure in fact” in a law
court; in measurements and descriptions be accurate, quoting figures
where possible.
You must answer =all questions= put to you, excepting such as would
tend to incriminate yourself; before you answer such questions, the
Coroner must warn you of the possible legal consequences if you
answer.
There are no medical secrets which may be kept between a patient
and his medical adviser when they are probed in a court of law: if,
however, you strongly object to answer, appeal to the President of
the Court, or answer in writing.
Think twice before adversely criticizing the actions of another
medical man; remember, =symptoms and signs may alter= from day to day.
You may not quote text-books of living authors, but you may say what
authors support your view.
If a text-book is quoted for or against you, =strictly verify= the
text, the context, and the date of publication, before affirming or
denying the quotation.
After giving evidence, hand in the labelled and numbered =exhibits=
which have been handed to you by the police or found by yourself.
“Real evidence” is, however, capable of fallacious handling, e.g.,
“Here’s the note! I made it at the time!”—but _did_ you?
It may be wise to take an “anatomical” skull into court for
illustration.
The body of the Coroner’s officer is always available for ocular
=demonstrations= to the jury of the sites of injuries, etc.
If any important point has been omitted by the questions (e.g., of a
non-medical Coroner), volunteer the undisclosed information which you
possess.
In conclusion, state the probable =cause of death=, especially
assuring the jury if it was, in your opinion, natural; and if it
could have been retarded by efficient medical advice.
Beware of being didactic on non-medical matters; such action is a
fruitful source of the “differences of doctors.”
Before leaving the witness-box, =compliment= the conduct of the
police or other persons who rendered worthy “first aid” to the
deceased man.
“The best brief is a copy of the depositions.” When criminal or civil
proceedings are likely to follow an inquest, carefully read over
and correct where necessary your depositions as taken down by the
Coroner’s clerk; initial any alterations you make, then sign them as
a correct record. Never sign any statement without having perused it
previously.
You can thus readily _identify the depositions_ later, when you may
have to repeat your evidence in a higher Court where counsel will
have scrutinized minutely not only the _facts stated_ but also the
_facts as stated_: and so will be able to criticize keenly your
second version.
In criminal cases the Coroner will _bind over_ the medical witness by
recognizance to appear at the trial and give evidence; usually such
cases are taken first at the Assizes.
FOOTNOTES:
[1] Say “I solemnly, sincerely, and truly declare, and affirm, that
I will tell the truth, the whole truth, and nothing but the truth”;
_or_, raising the right hand, say: “I swear by Almighty God, as I
shall answer to God at the last day of Judgment, I will tell the
truth, the whole truth, and nothing but the truth.”
II. RULES AS TO FEES.
=No fee= can be claimed for merely =volunteered= information, given
either in Court or previously.
If you attend the Court after being _sub-pœna’d_, the fee is due,
even should =no evidence= be called for.
=Do not= sign a receipt before you have received the money.
Apart from agreement to the contrary, an assistant or _locum tenens_
must hand his fees to his principal.
Where the authorities =compel attendance= in the public interest,
definite fees are scheduled: if you appear on behalf of the prisoner,
the plaintiff, or the defendant, a =private arrangement as to fees=
(preferably in writing) must be made between the solicitor and
yourself.
=1. THE CORONER’S COURT.=
There is =no fee= allowed for the =preliminary enquiry= and report to
the Coroner; he can allow a fee only at an inquest.
No fee will be paid for an unordered anatomical _post-mortem_
examination.
=Only one= medical witness is called by the Coroner; additional
evidence may be ordered by the inquest jury.
A second fee is =not allowed= for attendance at an adjournment.
A _post-mortem_ examination must =not be conducted= by one accused on
oath of negligently causing the death in question.
No fee, for evidence or for _post-mortem_ examination, is payable
to the medical officers (even if honorary) of voluntary medical
institutions where the deceased died under the care of the officer;
his attendance may, however, be excused if he sends a certificate as
to the facts to the Court.
_No fee allowed_: Lunatic Asylum; Public Hospital or Infirmary
(including Cottage Hospitals).
_Fee usually allowed_: Prison; Parochial Infirmary.
Where the deceased was “brought in dead,” the usual fees may be
claimed by medical officers of institutions.
Travelling expenses seldom can be due to medical witnesses at
inquests.
In =criminal cases= the Treasury may send down recognized experts.
_Fees_: For giving medical evidence after inspecting the body: ONE
GUINEA.
For giving evidence after performing a necropsy in accordance with
the Coroner’s order (or upon direction of the majority of the jury):
TWO GUINEAS.
_Fine_: FIVE POUNDS is the penalty for disobeying the Coroner’s
instructions.
=2. CRIMINAL PROCEEDINGS.=
(_Vide_ Home Office Order as to allowances for professional evidence
in criminal prosecutions, 1903.)
For common skilled witnesses in petty sessional and police courts, at
quarter sessions, and at the assizes, certain maximum =allowances=
are specified; it is left to the Clerk of the Court to decide the
actual fee in each case.
For =expert= testimony or highly skilled evidence the fee rests with
the Court or the Treasury.
For attending to give professional evidence =in the town= or place
where the witness resides or practises: If the witness
1. Attends to give evidence in one case only, not more than =one
guinea= per diem, even if a disagreeable examination has been
necessary in order to qualify as a witness.
2. Gives evidence on the same day in two or more separate and
distinct cases, not more than =two guineas=.
For attending =elsewhere= than in any town or place where the witness
resides or practises, whether in one or more cases, not more than
=two guineas= per diem. “Place” here means the area within a radius
of three miles from the Court.
No full-day allowance shall be paid unless the witness is necessarily
detained away from his home for =at least four hours= for the purpose
of giving evidence, otherwise he shall receive not more than one-half
of the full-day allowance.
The fare actually paid is usually allowed to a witness as travelling
expenses.
A medical witness, while staying within the precincts of the Court,
may be ordered to assist with his professional services.
In case of dispute, the Home Secretary, Whitehall, S.W., should be
applied to forthwith.
=3. CIVIL ACTIONS.=
If your services are required by =one party= to a suit, it is for you
to arrange terms; the solicitor is not himself liable. =A guinea=
per diem usually is regarded as the minimum fee; travelling expenses
(which should be paid in cash previous to the journey) are additional.
You can =demand= payment (in Court) before you consent to be “sworn”
as a witness; having been “sworn” you are bound to give your
evidence.
III. SOME LIMITATIONS TO MEDICO-LEGAL EVIDENCE.
=1. IMPOSED BY RULES OF EVIDENCE.=
A medical witness, =as such=, cannot give evidence which will
influence the Court to show
1. That a woman is past the age for procreating and bearing children.
2. That a child born nine months after lawful wedlock is
illegitimate.
3. That, in the absence of eye-witnesses, a newly-born dead child was
live-born.
4. That in a common disaster a certain person must have died last.
5. That children under seven can commit an indictable offence.
=2. IMPOSED BY INADEQUACY AND UNCERTAINTY OF KNOWLEDGE.=
1. The presence of gonorrhœa cannot be established by microscopical
evidence.
2. A small mammalian blood-stain cannot be sworn to be “human.”
3. In a case of sudden death you cannot state whether a bruise was
inflicted immediately before or immediately after the death.
4. The sex of a very old or a very young skeleton cannot be
determined.
5. The age of a skeleton, after complete ossification, is guess-work.
6. Death cannot be affirmed until putrefaction sets in.
7. Pregnancy must not be asserted until quickening has been felt, or
the fœtal parts are palpable.
8. Affiliation to putative parent from personal resemblance is
insufficient.
=3. CASES WHERE A POST-MORTEM EXAMINATION IS NECESSARY TO TEST.=
1. _Alleged Drowning_: otherwise in the absence of eye-witnesses
of the fatality, “found dead in the water” is the only logical
conclusion.
2. _Alleged Overlaying_: otherwise “found dead in bed with the
parents” should be the “open verdict.”
In 1 and 2, cardio-respiratory diseases must be noted.
3. _Alleged Still-birth_: for although live-birth cannot thereby be
proved in the absence of direct eye-witnesses, the lungs may have
functioned.
4. Anatomical _post-mortem_ examinations should be performed wherever
possible in medico-legal cases; they are essential in alleged
criminal homicide.
IV. VITAL ACTIVITIES WHICH MAY HAVE IMMEDIATELY PRECEDED SUDDEN DEATH,
1. _Respiration_: Soot or froth may be in the mouth, trachea, or
nostrils.
2. _Deglutition and Peristalsis_: Local water or blood may have been
swallowed; food may be in the stomach (e.g., of the newly-born);
vomit or fæces may have been voided; salivation may have been
profuse.
3. _Blood-Circulation_: Much blood may have been lost, possibly
having “spurted” (e.g., in the newly-born); the heart and vessels may
be empty; there may be true extravasation into or hyperæmia of the
tissues (a microscope will reveal reaction to an irritant); the veins
may be swollen on the distal side of a ligature; the blood may give
spectroscopic tests for poisonings.
4. _Neuromuscular_: Articles may be clutched e.g., weapons, grass (“a
drowning man catches at a straw”), hair, mud; _cutis anserina_ may be
present; _emissio seminis_ or abortion may have occurred; the eyelids
are usually open at death; children are usually born with the eyelids
sealed.
V. HEARSAY TESTIMONY:
MEDICO-LEGAL EXCEPTIONS TO THE GENERAL RULE WHICH FORBIDS THE
RECEPTION IN COURTS OF SUCH TESTIMONY.
1. The rule is not strictly observed in the Coroner’s Court, wherein
an enquiry, and not a trial between parties, is held.
2. Formally recorded dying declarations; the medical adviser often
hears “the last whisper of life.”
3. Spontaneous and voluntary confessions are sometimes made to
medical men.
4. Where the statement in question was part of the proceedings under
investigation, thus:
_a._ The complaints and natural expressions of a patient as to what
he feels: his words aid in deciding the course of treatment.
_b._ The natural expressions of a frightened person, who has not
had time to concoct a lie: thus after personal injuries, indecent
assault, or rape.
VI. PRECAUTIONS TO BE OBSERVED UNDER SUSPICIOUS CIRCUMSTANCES;
WHICH MAY TERMINATE IN THE CORONER’S COURT, AND NEED MEDICAL EVIDENCE.
The primary duty of a medical man is to treat every patient _as a
patient_.
=1. Chronic or slow poisoning= (including alcoholic).
_Cautions._ Try all possible preventive means before announcing the
suspicion; do not move until your ground is quite sure: otherwise an
action for defamation of character may result.
The family medical man must not be misled by the suspicions of
weak-minded or alcoholic patients; he must exclude every possibility
of an accidental origin of the symptoms. He should know the several
personalities of his patient’s families.
The symptoms may appear during medical treatment: poison being
substituted as “a lingering dram.”
If convinced, by repeated examination of the patient’s food and
excreta, by his symptoms, and by the conduct of the suspected person,
that the influence of poison is at work, let it be understood by
the patient’s friends that you are not satisfied with the progress
made: suggest the possibility of an accidental poisoning. Do not, at
present, associate any name as the culprit; suggest a consultation
with a medical friend.
Have the patient placed under the constant care of day and night
nurses, who, although being instructed to administer personally all
food and medicine, need not know at first your suspicions. If the
line of defence is circumvented, or is impossible, have the victim
removed to a nursing home, or to a hospital.
Your suspicions, without mentioning any name, should be told _viva
voce_ to the relatives of the poisoned person, to his solicitor,
or to the suspect himself. If this course is futile, the name can
be introduced in the information given to these persons, to the
patient himself, or, finally, to a magistrate, or to the police.
Should the victim die, the Coroner should be asked to order an expert
toxicological examination of the body of the deceased.
=2. Threatened suicide.=
“There is a rule of life far higher than professional etiquette—a
duty that every right-minded man owes his neighbour—to prevent the
destruction of human life.”
“Sign an urgency certificate, so that the patient can be detained
in his own house legally. Any step which is taken, which is in good
faith, with the intention of certifying, is justified, and is covered
by the law.”
=Attempted suicide.=
Special care must be taken to prevent a further attempt by constant
unobserved watching. Delirious, melancholic, suicidal, and mentally
defective patients are preferably placed on the ground floor.
3. Where a patient dies suddenly from a cause which is obviously not
the one under treatment—as when anæsthetized, or after an operation.
Enumerate to the friends the possible explanations of the fatal
issue. Affirm that there is no reason to have expected any one of
them, and that all the usual precautions had been taken.
Report to the Coroner, or advise, where such report is considered
unnecessary, that an anatomical _post-mortem_ examination should be
conducted for the satisfaction of all parties concerned.
VII. SOME STEPPING-STONES OF MEDICAL EVIDENCE.
1200 Pledge to answer truly appears.
1215 Trial by Ordeal abolished.
1275 The Coroner’s Ordinance. The inquest jury were the witnesses
also; inspection of external appearances was alone necessary
for the jury’s _post-mortem_ examination.
1290 The Court, after being advised by physicians, direct the jury
as to the legitimacy of a posthumous child.
1345 The Sheriff is directed to summon the foremost London medical
men to consider the severity of a recently inflicted wound.
1354 A charge of surgical malpraxis narrated in the City Records.
1450 Common witnesses are summoned to appear before the jury.
1506 Dispute as to the province of the Court or the surgeon to
decide upon the severity of a wound.
Anatomical _post-mortem_ examinations occur, though pathology is
primitive. “Searchers.”
1542 Thomas Vicary advises the Lord Mayor in a case of battery.
1562 Witnesses summoned _sub-pœna_.
1575 Ambrose Paré publishes typical “medico-legal reports.”
1632 College of Physicians report in full on a corrosive poisoning
case.
1665 Sir Thomas Browne affirmed in Court his belief in witches.
1699 Baron Hatsell objects to Dr. Crell quoting “Ambros Parey’s”
opinions.
1723 Mr. Justice Tracey enunciates “the wild beast” theory of
responsibility in lunacy cases.
1767 _Slater_ v. _Baker & Stapleton_—a case of surgical malpraxis;
damages £500.
1781 John Hunter gives expert evidence in an alleged poisoning case:
“I can give nothing definite.”
1788 Samuel Farr’s _Elements of Medical Jurisprudence_.
1795 Matthew Baillie exposes the fallacy of “Death from polyp of the
heart.”
1807 Chair of Medical Jurisprudence established in Edinburgh.
1823 Last “cross-road” burial of suicides in England.
1827 Orfila doubts detection of blood-stain with the microscope.
1830 The first Medical Coroner elected. “A medical Crowner’s a queer
sort of thing.”
1831 Sir Thos. Watson lectures at King’s College Hospital, and
Swaine Taylor at Guy’s.
1832 The Anatomy Act, after Burke and Hare scandals. “Burke Hare
too!”
1836 Registration of “the cause of death” introduced.
Sir Dominic Corrigan’s clause as to fact of death: “As I am
informed” (1874).
1837 The Medical Witnesses Remuneration Act allows fees for medical
evidence at inquests; inquests and autopsies increase,
pathology advances.
1843 Swaine Taylor’s _Manual of Medical Jurisprudence (Principles
and Practice, 1865)_.
Rules as to the test of criminal responsibility of the insane
(McNaughten’s case).
1844 Rudolph Virchow’s _Die Sections-Tecknik_ commenced.
1845 Telegraph first used for arrest of a prisoner (Tawell).
1846 Anæsthetics introduced. “Gentlemen! Here is no humbug!”
1848 The first Public Health Act.
1851 Stas devises his process to detect poisoning by alkaloids
(nicotine).
1857 Lord Chief Justice Cockburn discredits microscopical evidence.
1858 “Railway shock” appears.
The Medical Act registers medical practitioners.
1862 Hoppe-Seyler suggests medico-legal use of the spectroscope
(Muller’s case, 1864).
1863 Photography applied to surgery. (1871, criminals photographed).
1864 Listerism introduced.
1868 Crown Office (Scotland) memorandum for medico-legal examination
of dead bodies (revised 1897).
1883 Bertillonage employed (France).
1879 The first Inebriates Act.
1886 The triple qualification necessary.
1887 Retford ptomaine poisoning.
1888 Witnesses emancipated from “kissing the Book.”
1893 Phonograph heard in the Chancery Division.
Report on Death Certification.
1896 Skiagram of ankle produced in an action for damages.
1897 Finger-print records recognized (India).
1897 Cinematograph used in Medicine.
1901 Medico-Legal Society founded.
1902 A “thumb-print” accepted at the Old Bailey.
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Transcriber’s Notes
pg 47 Added period after NECESSARY TO TEST
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