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SUGGESTIONS TO THE 
 MEDICAL WITNESS 
 
 BY 
 
 J. S. WIGHT, M.D. 
 
 PROFESSOR OF OPERATIVE AND CLINICAL SURGERY AT THE LONG 
 ISLAND COLLEGE HOSPITAL, BROOKLYN, N. Y. 
 
 CAMBRIDGE 
 
 IJrinteU at t^t l^tatvsitit |)rc0S 
 
 1891 
 
Copyright, 1891, 
 By J. S. WIGHT. 
 
 All rights reserved. 
 
 
^ TO THE MEMBERS OF THE 
 
 / MEDICAL AND LEGAL PKOFESSIONS, 
 
 WITH THE HOPE THAT THEY MAY BE INDUCED TO 
 
 ^, 
 
 COOPERATE IN THE SEARCH FOR EVIDENCE, 
 
 THE DETECTION OF FALSEHOOD, THE 
 
 DISCOVERY OP TRUTH, AND 
 
 THE PROMOTION OF 
 
 JUSTICE. 
 
Hear the other side of the question ; and be silent, that 
 you may hear: for the truth may be found between the two 
 sides. 
 
PREFACE. 
 
 When the doctor first begins to tes- 
 tify in court as a medical witness, he 
 has nothing to guide him. He is in a 
 new and strange place, and has assumed 
 new duties. If some one would kindly 
 tell him what to do, and how to do it, a 
 great favor would be conferred, and a 
 lasting debt of gratitude would be in- 
 curred. To be ground between the 
 millstones of the advocate and the ad- 
 versary is not agreeable, not pleasant, 
 not desirable. Yet sooner or later the 
 doctor must come to this, and he gener- 
 ally comes unprepared and defenseless. 
 If he had only been taught the princi- 
 
viii PREFACE. 
 
 pies of giving medical evidence, he 
 would be able to do himself credit, and 
 could shake off any fear or dread he 
 might have of the advocate or the adver- 
 sary. The primary wants of the medical 
 witness are sometimes urgent, and it is 
 with the hope of meeting them in some 
 degree that the suggestions in this little 
 book are put forth. The Suggestions 
 to the Medical Witness contain a discus- 
 sion of the principles of testifying before 
 a jury, as well as some of the unwritten 
 rules which relate to the relevancy of 
 evidence. It is the object of the au- 
 thor to aid and help those who need 
 and desire it. 
 
 J. S. WIGHT, M.D. 
 
 No. 30 SCHERMERHORN StREET, 
 
 Brooklyn, N. Y. 
 
SUGGESTIONS TO THE MEDICAL 
 
 WITNESS. 
 
 1. It is the duty of the doctor, while on 
 the witness stand, to state medical facts and 
 give professional opinions. He acts in a 
 special capacity : he testifies in regard to 
 facts which are unknown to other men. 
 When he speaks the language of medicine 
 he is like a man in a strange country, where 
 no one can tell what he says and what he 
 means. In order that he may be understood 
 he must translate the language of medicine 
 into that of every-day life. He stands be- 
 fore the Court as an interpreter, who ex- 
 plains special facts, and who draws reasona- 
 
2 ' SUGGESTIONS TO THE 
 
 ble coDclusions from these facts, and then 
 gives professional opinions, which are re- 
 ceived as evidence. 
 
 2. 'It is evident that the doctor has rights 
 when he becomes a witness. Some of these 
 rights are as follows : he has a right to tell 
 the truth in a simple and plain manner ; he 
 has a right to refuse to disclose professional 
 secrets ; he has a right to be silent on any- 
 thing that would incriminate himself ; he 
 has a right to civil and reasonable treat- 
 ment from the counsel of both sides. The 
 Court respects and protects the medical wit- 
 ness in the exercise of these rights. In fact, 
 the Court is the counsel of the witness. 
 Even the untruthful, prevaricating, and irre- 
 sponsible witness has rights to be respected. 
 The remedy is not in the invasion of his 
 rights, but in the punishment of his 
 offenses. 
 
 3. The duties of a medical witness differ 
 
MEDICAL WITNESS. 3 
 
 in some respects from those of a doctor. 
 The doctor investigates his case alone ; 
 Court, jury, and counsel are absent. He 
 conducts the direct as well as the cross- 
 examination of his patient. There is no 
 judge but his own conscience; there is no 
 jury beyond his own educated faculties ; 
 there is no counsel besides his own judg- 
 ment. He does not practice his profession 
 in open court, to be seen and heard and 
 known of all men. His professional cases, 
 as it were, are tried with closed doors. His 
 practice is like that of the star-chamber. 
 To him the issues of life and death are sol- 
 emnly committed, and there is no appellate 
 court. The case is closed, in one way or 
 another, and that is the end of it : the case 
 cannot be reopened, and tried again. 
 
 4. It may happen that the doctor does 
 not understand his rights and duties, as a 
 medical witness. He may be honest, rightly 
 
4 SUGGESTIONS TO THE 
 
 disposed, and well informed, and yet not 
 have the qualifications of a good witness. 
 In the hands of unscrupulous and preju- 
 diced counsel he may be made to distort the 
 truth and conceal the facts. He must real- 
 ize that he is to tell the truth, that he is to 
 relate the facts, without exaggeration and 
 without deviation. And it seems to me that 
 he may assert himself, as the champion of 
 the truth, for such he indeed becomes, when 
 he tells and reaffirms his story of the facts. 
 If a medical witness adheres closely and 
 firmly to the facts as he knows them, he 
 cannot go far beyond his rights and duties 
 in giving testimony. And if he reasons 
 correctly on truthful evidence, his opinions 
 will be sound and acceptable. 
 
 5. A medical witness may pretend to 
 have knowledge that he does not possess. 
 He may be ignorant of the essentials of his 
 science and his art. He may suppose that 
 
MEDICAL WITNESS. 5 
 
 he can impose on learned judges, acute law- 
 yers, and expert witnesses. But he will 
 have to translate his professional phrase- 
 ology into common words, such as are 
 known to the jury, and in the end he will 
 have the mask of his presumption removed. 
 Such a witness deserves and merits the 
 name of quack, for he is an ignorant pre- 
 tender to knowledge that he does not pos- 
 sess. He may be handled by the cross-ex- 
 aminer without pity and without remorse. 
 And it will be his own fault, if he leaves the 
 witness stand, naked, wounded, and bleed- 
 ing, after his unequal encounter with the 
 dexterous knight-errant of the law. 
 
 6. It is important to remember that med- 
 ical facts are, to some extent, matters of 
 opinion. For the fact that there is an in- 
 jury is reached through a process of reason- 
 ing from certain signs and symptoms. The 
 signs, for instance, are facts of observation. 
 
6 SUGGESTIONS TO THE 
 
 These facts may be seen, treasured m the 
 memory, and then related. They are not 
 injuries, they are signs of injury. The 
 medical witness comes to a knowledge of 
 these signs, and then thinks and reasons 
 from them, and concludes with reasonable 
 certainty that there is an injury. The in- 
 jury is a fact if it exists, but its existence is 
 only known on account of the reasoning of 
 the expert. He does not reach the fact di- 
 rectly, and the existence of the injury is 
 only a matter of opinion with him. But if 
 he reaches this opinion upon good and suf- 
 ficient evidence, it must indeed stand as a 
 fact, and that fact must be one of evidence. 
 So that we may say, in general, that the ma- 
 ture and scientific oj)inions of medical men 
 stand for facts, and they are so regarded by 
 courts and juries. Truly, there is not the 
 least doubt as to the competency of the 
 reason to discover truth : nor is the reason 
 
MEDICAL WITNESS. 7 
 
 in any way subordinate to the special senses 
 in discerning facts. Indeed, I am not sure 
 but that the special senses suffer from illu- 
 sions and hallucinations more frequently 
 than the reason suffers from delusions. In 
 any case it will not be wise to subordinate 
 the reason to tbe inferior faculties. In more 
 cases than one have I seen the reason correct 
 the errors of the special senses. 
 
 7. The doctor has knowledge which be- 
 longs to a class and is not the property of 
 men in general. In giving testimony, he is 
 an ordinary witness, or lie may be an ex- 
 pert. If he is an ordinary medical witness, 
 he testifies to the existence of facts of a pro- 
 fessional nature, such as have come under 
 his own observation, and as a doctor he is 
 competent to give them in evidence. When 
 he comes to testify, it is generally shown 
 that he is a graduate from a medical col- 
 lege, and that he has been engaged in the 
 
8 SUGGESTIONS TO THE 
 
 legal practice of his profession. If he is an 
 expert, his testimony explains the nature 
 and cause of disease, the pathology and re- 
 sults of injuries, and the meaning and im- 
 port of medical facts. He is supposed to 
 be especially competent to trace the clin- 
 ical history of disease and injury, and to 
 give an opinion upon the course each will 
 run. The expert may express opinions on 
 scientific questions, on a hypothetical state- 
 ment of facts, and on a statement of ad- 
 mitted facts. And these opinions must 
 come peculiarly within the scope of his sci- 
 entific knowledge and his professional ex- 
 periences and judgment as a medical man. 
 As has been said, the medical man has 
 knowledge which belongs to a class, and 
 the medical expert has had special and un- 
 usual opportunities to acquire this know- 
 ledge, as well as practice the precepts that 
 are derived from it. 
 
MEDICAL WITNESS. 9 
 
 8. A medical opinion, in order to be ad- 
 mitted as evidence, must not be vague, un- 
 certain, and merely hypothetical ; it must be 
 eminently probable and reasonably certain, 
 such as comes from a well-educated and 
 reasonable mind, — a mind that is ever 
 ready to receive the truth. The medical ex- 
 pert must be convinced that the opinion he 
 has formed stands on a basis of proven 
 facts, and that his reasoning has been 
 strictly logical. Such an opinion goes be- 
 yond a mere impression ; it becomes the 
 conviction of a reasonable mind, and so ex- 
 presses an underlying fact. And, after all, 
 it is this underlying fact which is admitted 
 as evidence. The expert tells us that in his 
 opinion a certain fact exists, and this fact, 
 expressed in his opinion, is admitted as 
 evidence. 
 
 9. The ordinary medical witness may be 
 summoned merely to testify to medical facts 
 
10 SUGGESTIONS TO THE 
 
 that have come under his own observation : 
 they are facts that he has seen. He may 
 have much or little experience, he may have 
 only ordinary skill and knowledge, or he 
 may be an accomplished expert. As an or- 
 dinary witness, he simply testifies to the 
 facts of the case. He says, for instance, I 
 found such and such injuries in the body of 
 the litigant who is plaintiff. He does not 
 necessarily express any opinion as to the re- 
 sults of the injuries. If he does, then he 
 testifies as an expert. He may be a compe- 
 tent witness as to medical facts, yet he may 
 be deficient in the qualities that go to make 
 up an expert. At the same time, his opin- 
 ions may have some value. But an expert 
 is supposed to have all the knowledge and 
 skill which ordinarily belongs to his profes- 
 sion. He is legally assumed to be compe- 
 tent to observe medical facts and form opin- 
 ions in regard to them. And he is some- 
 
MEDICAL WITNESS. 11 
 
 times called upon to apply his expert and 
 professional skill, knowledge, and judgment 
 in disclosing and explaining the meaning 
 and import of facts stated by ordinary wit- 
 nesses. In brief, expert evidence comes 
 from a man who has had much experience 
 in studying the science and in practicing 
 the precepts of his profession. And he 
 whose experience overshadows that of oth- 
 ers is eminent as an expert. Here we 
 may add that well-informed sj)ecialists are 
 looked upon as experts in their depart* 
 ment of special practice. As a matter of 
 course this must be so. The courts, as welj 
 as the profession, view specialists in this, 
 light. 
 
 10. Yet in regard to medical and surgi- 
 cal facts, great practical difficulties may 
 arise. Some facts are plain, and come with- 
 in the reach of all; some are obscure, and 
 can be explained only by those who haye 
 
12 SUGGESTIONS TO THE 
 
 the highest skill ; some are so concealed that 
 the most expert cannot find them out. 
 Who can always make a correct diagnosis ? 
 Where is the man who never made a mis- 
 take ? Who has acquired all knowledge 
 and all skill? Who has become expert in 
 every kind of practice ? Who has mastered 
 all there is in one line of practice ? Let 
 the attorney who has never lost a case, or 
 the judge who has never made an error, tell 
 us. And let the doctor who has never lost 
 a patient, if he has been in practice any 
 length of time, inform us on this point. 
 The difficulties that beset some medical 
 facts may affect the expert, as well as the 
 ordinary witness. So it is, that the opin- 
 ions of the experts must invade the terri- 
 tory of conjecture, when medical facts are 
 obscure, concealed, and uncertain. In this 
 territory we have abundant scope for the 
 wise exercise of the principles of liberality. 
 
MEDICAL WITNESS. 13 
 
 And then there arises the suggestion that 
 we may expect too much, when we have 
 only little to give. 
 
 11. A suraeon examines and treats a case 
 of injury, and then it becomes the subject 
 of litigation. He is called into court to 
 give evidence. He testifies as to his diag- 
 nosis, he describes the treatment ; and tells 
 us how the case resulted. Then he may say 
 if the injury was severe or not, and he may 
 inform the jury if the result was as good as 
 could be expected. In so far as he does 
 this, he is an ordinary witness. But let 
 another surgeon, one of experience and 
 skill, examine this patient, at any time after 
 the injury was inflicted, for the purpose of 
 testifying in court as to the nature, extent, 
 and result of his injury, and he then be- 
 comes an expert. He comes before the 
 Court because he has more than ordinary 
 experience, — he is an expert. Finally, one 
 
14 SUGGESTIONS TO THE 
 
 does not like to say exactly where tlie ex- 
 pert witness merges into the ordinary, or 
 where the ordinary witness most resembles 
 the expert ; hence let us be content with the 
 broad general distinctions we have made in 
 regard to this important matter. 
 
 12. An explanation of the subject of 
 medical skill will throw some light upon the 
 difference between an ordinary witness and 
 an expert. As a matter of fact there are 
 many degrees of experience and skill : one 
 doctor differs from another in the sum and 
 quality of his knowledge, in the training of 
 his senses, in the cultivation of his reason, 
 in the education of his judgment. The 
 recent graduate does not have the skill 
 acquired by the surgeon who has performed 
 many operations. The civic may surpass 
 the rural practitioner in knowledge and 
 skill, because he has had unusual opportuni- 
 ties for observation and work. One doctor 
 
MEDICAL WITNESS. 16 
 
 may have greater natural gifts than another, 
 so that, other things being equal, he may- 
 attain to a higher standard. Experts differ 
 and vary in their experience and qualifica- 
 tion. They do not rank the same. The de- 
 grees are not only good, better, best, but 
 some are less than good. All surgeons have 
 not the same qualifications, though they 
 may have ordinary skill. 
 
 13. All this means that there is no com- 
 plete rule, no absolute standard of medical 
 practice. Yet it is important to have some 
 practical rule, some legal standard, to guide 
 us in determining the necessary degree of 
 knowledge and skill that should be pos- 
 sessed by the doctor, not only for the prac- 
 tice of his profession, but also for the 
 requirements of medical jurisprudence. The 
 standard of practice must not be too low, 
 for that would imperil human life. It must 
 not be too high, for then it could not be 
 
16 SUGGESTIONS TO THE 
 
 readied by any one, not even the most skill- 
 ful. It seems to me that there are two 
 rules to be applied to the question of med- 
 ical skill : one is a 7'ule of law ; the other is 
 a rule of duty. All are required to follow 
 the rule of law. How many follow the rule 
 of duty ? 
 
 14. The rule of law is to this effect : 
 the doctor must have and apply ordinary 
 skill in the practice of his profession ; he is 
 legally bound to know the established prin- 
 ciples and rules of medical practice ; and he 
 must not be negligent in the application and 
 use of these principles and rules. He is a 
 warrantor only to this extent, that he can 
 practice his profession with ordinary skill, 
 — that skill which medical men in general 
 possess. He enters into an obligation to 
 employ ordinary skill in a reasonable and 
 diligent manner in the treatment of disease 
 and injury. He is not legally required to 
 
MEDICAL WITNESS. 17 
 
 promise and warrant cures, for there is no 
 law, and in the nature of the case there 
 could be none, to compel the doctor to cure 
 all cases of disease, to remove every de- 
 formity, to restore every impaired function. 
 The doctor is only required to carry out the 
 law of ordinary skill ; but he may add the 
 law of duty, and even then he will find very 
 many things that he cannot do : the blind, 
 the lame, and the sick will exist, in sj^ite of 
 all his best efforts. 
 
 15. The doctor is only responsible for 
 tlie reasonable and diligent performance of 
 what is ordinarily possible in medical prac- 
 tice. He does not say to his patient : I 
 will tell you exactly what is the matter with 
 you ; I will agree to cure you, to make your 
 broken bone as good as it was before ; I will 
 remove your deformity; I will restore the 
 use of your arm or your leg. The prudent 
 doctor cannot make any such contract with 
 
18 SUGGESTIONS TO THE 
 
 his patient. So he tells him that he will 
 treat him with ordinary skill, due diligence, 
 and reasonable attention, according to the 
 established rules of practice. Beyond this 
 he cannot go : to promise more than this is 
 unwise and unprofessional. Yet if the doc- 
 tor finds that he has a difficult case to treat, 
 he has the right to ask for assistance, in 
 order that his patient may have the bene- 
 fit of a consultation. In fine, he may prop- 
 erly ask for a consultation with some one 
 who has the ability to give sound advice 
 and good assistance. This practice is indeed 
 common, thanks to the magnanimity and 
 benevolence of the medical profession. In 
 no other field of labor do we find so much 
 liberality, so much cooperation, so much 
 benefaction. 
 
 16. If the doctor practices with ordinary 
 skill, due diligence, and reasonable attention, 
 an error of judgment on his part does not 
 
MEDICAL WITNESS. 19 
 
 make him responsible for the result, any 
 more than an error by the Court in ruling 
 and charging entails responsibility in re- 
 gard to the result of a case which has been 
 tried. To hold the doctor responsible for 
 the result following an error of judgment 
 would be to look upon him as infallible, and 
 that would involve a standard of practice 
 higher than any man can reach. It is evi- 
 dent that the doctor who sets himself up as 
 one who can make no mistakes and who is a 
 warrantor of cures must be, from the very 
 nature of the case, an ignorant pretender to 
 knowledge and skill that he does not pos- 
 sess, and that he is a dangerous impostor, 
 whose practice may be followed by peril 
 and disaster. 
 
 17. The rule of duty is somewhat differ- 
 ent from the rule of law. One judge pre- 
 sides better than another. One attorney is 
 a better examiner than another. And one 
 
20 SUGGESTIONS TO THE 
 
 doctor can practice better than another. 
 Now as to the duty of each : I am clearly 
 of the opinion that the doctor, in treating 
 his patients, ought to use his best skill; that 
 the attorney, in his examinations, should 
 apply his best legal ability ; that the judge 
 is under an obligation to employ his best 
 faculties, in the administration of justice. 
 But, while these things are so, the law and 
 the courts make no such distinction : all doc- 
 tors, under the law and before the courts, 
 are equal, for no one is required to possess 
 and apply extraordinary skill. Yet it is 
 right and proper for a man to give the 
 world the benefit of skill above the average, 
 if he is fortunate enough to possess it, be he 
 judge, lawyer, or doctor. How much better 
 the world would be, if every man did his 
 best at all times and in all places ! 
 
 18. Do we not employ a surgeon of skill 
 and reputation, and pay him a larger fee, 
 
MEDICAL WITNESS. 21 
 
 because we expect him to do a better piece 
 of work than an ordinary surgeon ? If the 
 surgeon asks for and receives an unusual 
 fee, on the ground that he has extraordinary 
 skill, is he not bound to render an equiva- 
 lent? Is he not under an obligation to give 
 his best skiU to his patient, when he has 
 received an unusual fee ? It seems to me 
 that he is. So it seems to me that the rule 
 of duty, in some sense, merges into the rule 
 of law. Such as we have of skill to work 
 we ought to give to others, not only for 
 pay and reputation, but also for duty. The 
 question is. Have I done the best I could 
 under the circumstances? In saving from 
 deformity and from disability, have I saved 
 to the uttermost, no matter whether I have 
 been paid for it or not ? In the community 
 in which I live, are there limps, halts, illu- 
 sions, and delusions, which I could have 
 prevented? That is the question. The 
 
22 SUGGESTIONS TO THE 
 
 more we think of it, the more we begin to 
 realize that we are all under an obligation 
 to do our best in every field of human en- 
 deavor. 
 
 19. Some of the qualifications of an ex- 
 pert may be stated : he has been a care- 
 ful observer ; he has educated his senses ; 
 he has cultivated his reason ; he has trained 
 his judgment ; he is a diligent student ; he 
 is a man of sound sense ; he separates a con- 
 clusion from a fact ; he distinguishes be- 
 tween the medical facts and the merits of 
 the case ; he knows if a fact is relevant to 
 the issue ; he is above all a practical man ; 
 he brings common sense to the performance 
 of his duty as a medical jurist; he will 
 make a complete and thorough investiga- 
 tion of the medical facts of a case ; he will 
 subject these facts to a critical and severe 
 cross-examination ; he will test his own 
 conclusions with the most searching analy- 
 
MEDICAL WITNESS. 23 
 
 sis ; he will reject what is irrelevant and in- 
 competent ; he will find and hold to what is 
 true and relevant ; he will be honest, upright, 
 and impartial in his opinions ; his words will 
 not be spoken for either litigant, as such ; 
 he will tell a j)lain story in a simple man- 
 ner ; he will relate to the jury, in the pres- 
 ence of the Court, what is true, right, and 
 just, without fear of consequences; he will 
 rise to the dignity of that position on the 
 witness stand which tends to promote the 
 more perfect administration of justice ; he 
 will cooperate with the magnanimous and 
 upright attorney in the discovery of truth, in 
 the production of evidence, in the establish- 
 ment of justice between man and man. Such 
 are some of the qualifications of an expert. 
 20. The doctor has special knowledge, 
 and employs special terms to express it, 
 when he speaks with professional men. But 
 judges, lawyers, and jurors are not supposed 
 
24 SUGGESTIONS TO THE 
 
 to be familiar with the language of medi- 
 cine. What they need is some one to 
 translate this language into the language of 
 every-day life. A medical fact expressed in 
 medical language does not convey a clear 
 idea to the mind of a juror ; it must be 
 expressed in the plain, practical language 
 with which the juror is familiar, before he 
 can understand it. One knows of no more 
 important point than this* in the art of giv- 
 ing testimony : the translation of the lan- 
 guage of science into that of every-day life. 
 The question is, What does the medical wit- 
 ness mean to say ? This is what the jury 
 want to know. And how can they know it, 
 if the witness speaks to them in an unknown 
 tongue ? So if a medical word must be 
 used, let it be so completely defined that 
 the mind of the average juror can under- 
 stand it. 
 
 21. Let me point out the difficulty of 
 
MEDICAL WITNESS. 25 
 
 making a complete definition of anything in 
 any department of science or art. Who 
 can so describe a thing as to separate it 
 from every other thing in nature? Who 
 can insulate a fact with words ? Who can 
 separate a fact from all of its relations with 
 all other facts ? Give us the form of what 
 seems to be a complete definition, and its 
 incompetency can be shown at once. There 
 will be some weak point in it, demonstrat- 
 ing the inadequacy of words to define with 
 perfect exactitude any one of the many 
 things in the world from every other thing. 
 Yet we must have definitions, such as we 
 can construct, be they good or bad. They 
 are the handles by which we take hold of 
 things : they are the fences we put around 
 facts and opinions, — such as we put before 
 the Court in evidence. A definition is a 
 verbal fence put around a fact or an opinion, 
 to keep it from getting away while we in^ 
 
26 SUGGESTIONS TO THE 
 
 spect and study it. Some defiDitions are 
 like the bulrusli that was used in trying to 
 stop the current of the Nile ; and some are 
 like the grim granite walls which beat back 
 the ocean wave or turn aside the ice-river 
 that flows from the mountain side. Defini- 
 tions are not facts, they are brief descrip- 
 tions of facts. The facts are seen and 
 known through the words which express 
 them. 
 
 22. The following definitions are intro- 
 duced for illustration : 1. Shock is a de- 
 pressed state of the nervous system caused 
 by injury. 2. An illusion is the imagined 
 seeing of a real thing. 3. An hallucina- 
 tion is the real seeing of an imagined thing. 
 4. A delusion is a misleading of the mind. 
 6* A medical diagnosis is "to know" through 
 a case. 6. A legal diagnosis is the science 
 of probabilities founded on a knowledge of 
 anatomy and pathology. 7. Insanity is a 
 
MEDICAL WITNESS. 27 
 
 disorder of the structure or function of the 
 brain accompanied by impairment of the 
 will, delusion of the judgment, derangement 
 of the reason, and perversion of the affec- 
 tions, — and followed by mental disability 
 and irrational conduct. 
 
 23. It is evident that the same thing 
 may have different definitions : A man may 
 have a ten-acre lot, and put a board-fence 
 around it ; then he takes down this fence 
 and builds a stone-wall in its place ; and 
 again he removes the fence and plants a 
 hedge to define his acres : in each way he 
 fences in his ten-acre lot. So the above 
 definitions are not exclusive ; they are only 
 made to fence in or define the fact which we 
 desire to examine. Let some one erect a 
 better fence around the event which we call 
 shock, and we will take down our own fence 
 and build one like his. Let any one construct 
 a better fence to inclose or define the state 
 
28 SUGGESTIONS TO THE 
 
 whicli we call insanity, and we will adopt it 
 without delay. How often do we find men 
 differ in opinion because they see differently, 
 because they make different definitions. 
 They see and talk about the same things, 
 — and yet they differ. This point of dif- 
 ference often mystifies the minds of the 
 jury and causes them to disagree. 
 
 24. An answer to a question put by coun- 
 sel to a medical witness may be in the form 
 of a definition. One of the accomplishments 
 of a medical witness consists in his ability 
 and skill in making a correct and reliable 
 definition. The witness should put around 
 the fact of his evidence, or his opinion if he 
 can, a fence he will not have to take down. 
 The words he uses should if possible make 
 the fact, or the opinion, so clear that every- 
 body can understand it. On the other hand, 
 a question put to a medical witness may be 
 in the foim of a definition, which will de- 
 
MEDICAL WITNESS. 29 
 
 mand his assent or denial of its truth. It 
 may be that he can assent to part of the 
 question, while he will have to deny the rest, 
 because counsel has framed a definition that 
 is ambiguous. This difficulty is increased, 
 when counsel and witness have taken, as 
 they often do, different views of the same 
 matter. 
 
 25. The medical facts are introduced to 
 aid in proving or disproving the facts in is- 
 sue between the litigants. This property of 
 proving or disproving the facts in issue must 
 belong to the medical facts in order that they 
 may be admitted as evidence. The facts 
 in issue must be inferred to be true, or not, 
 from the medical facts, in so far as the case 
 in issue is medical. This part of the case 
 does not refer to the merits of the issue. The 
 question now under consideration is one of 
 relevancy. The evidence admitted by the 
 Court is supposed to be relevant. It is the 
 
30 SUGGESTIONS TO THE 
 
 business of the Court to admit evidence, — 
 and the only evidence that can be admitted 
 is such as is relevant. The following defi- 
 nition of relevancy may be quoted here : 
 " Facts, whether in issue or not, are relevant 
 to each other when one is, or probably may 
 be, or probably may have been, the cause 
 of the other, the effect of the other, an ef- 
 fect of the same cause, a cause of the same 
 effect, — or when the one shows that the 
 other must or cannot have occurred, or prob- 
 ably does or did exist, or that any fact does 
 or did exist or not, which in the common 
 course of events would either have caused 
 or have been caused by the other." That 
 is to say, in general, in order that facts in 
 evidence may be relevant to facts in issue 
 there must be between these two sets of 
 facts some causal relation. The facts in 
 evidence must prove or disprove the facts in 
 issue. That is to say, the evidence must 
 
MEDICAL WITNESS. 31 
 
 prove or disprove the issue : if the evidence 
 does not velate to, does not affect, the issue, 
 it is not relevant and must be excluded. 
 
 26. If a doctor is on trial for malprac- 
 tice, his treatment of similar cases cannot be 
 admitted, for such evidence is not relevant, 
 because it does not prove how he treated the 
 case under litigation. The relevant facts 
 belong to the case for which he is being 
 tried, — only what proves or disproves the 
 question or issue of malpractice is relevant 
 or admissible. He may indeed show that 
 he is qualified to practice his profession with 
 ordinary skill. The question at issue is, 
 Did he treat the case for which he is being 
 tried, with ordinary skill? That evidence 
 which goes to prove that he treated the 
 case with ordinary skill is relevant. Also 
 that evidence is relevant which goes to dis- 
 prove that he treated the case with ordinary 
 skill. 
 
32 SUGGESTIONS TO THE 
 
 27. If a man is on trial for murder, the 
 fact that he committed another murder 
 could not be admitted against him, for it 
 would not be relevant. The facts which go 
 to prove or disprove that he did the murder 
 for which he is being tried are alone rele- 
 vant. All evidence beyond that is not ad- 
 missible, — it is foreign to the issue, which 
 is that he did the murder for which he is on 
 trial. 
 
 28. Let us take the following issue joined 
 between two parties : A, for instance, al- 
 leges that B owes him a certain sum of 
 money. This is the fact in issue. It is the 
 fact to be proved or disproved. The facts 
 of the testimony must go to prove or dis- 
 prove the alleged fact that B owes A a cer- 
 tain sum of money, — which is plainly the 
 fact in issue. Then the testimony becomes 
 evidence, because it is relevant. The facts 
 of the testimony are only relevant to the 
 
MEDICAL WITNESS. 33 
 
 fact of the issue, when they go to prove or 
 disprove that B owes A the alleged sum of 
 money. 
 
 29. It must ever remain true that rele- 
 vant facts in evidence are those which have 
 a causal relation with the facts in issue. 
 They must be such facts that a reasonable 
 mind can infer from them the existence or 
 non-existence of the facts in issue. If the 
 facts in evidence are true, then the facts in 
 issue are also true, or they are not true, just 
 as the testimony proves. If the facts in- 
 troduced in evidence have not this causal 
 relation with the facts in issue, if they are 
 indifferent to the facts in issue, they are not 
 relevant. 
 
 30. In this place, we may refer to the 
 relevancy of the expert's opinion. It is, no 
 doubt, the duty of the jury to draw infer- 
 ences and form opinions ; and so in general 
 an inference or an opinion given by a wit- 
 
34 SUGGESTIONS TO THE 
 
 ness would not be relevant. It was the 
 function of the witness to relate facts ; he 
 did not give opinions : he could not think 
 for the jury. But the jurymen are required 
 to reason on the facts of the evidence, and 
 so tell what they mean : it is their function 
 to find out if the facts of evidence show 
 whether the facts in issue are true or not. 
 The question for them is, Has the issue 
 been proven ? But there is one notable ex- 
 ception to this rule : the average juryman 
 does not know everything ; and the princi- 
 ple is that he cannot reason on what he has 
 no knowledge of, about that of which he is 
 ignorant. In this respect, some one must 
 think for him, and at least teach him how 
 to reason in regard to matters of scientific 
 import. Hence, it is assumed that the opin- 
 ions of exj)erts on relevant medical facts 
 are also relevant as evidence. This is so 
 for the following reasons : the juryman is 
 
MEDICAL WITNESS. 35 
 
 unacquainted with medical facts and cannot 
 know what they mean, and so he cannot 
 draw inferences from them, nor can he form 
 opinions in regard to them. Hence, under 
 the jury-system, justice would miscarry, if 
 the jurymen are not enlightened in regard 
 to medical facts. They are enlightened in 
 the following way : medical facts similar to 
 those which have been given in evidence are 
 assumed, and the expert draws inferences 
 and forms opinions from them ; these infer- 
 ences and opinions are admitted as relevant 
 testimony ; they enlighten the jurymen, who 
 have an example to guide them in dealing 
 with the medical facts that are relevant to 
 the facts in issue. The jurymen are sup- 
 posed to deal with the relevant medical 
 facts admitted as evidence much in the same 
 way as the expert did with the assumed and 
 similar medical facts. If we could imagine a 
 jury made up of experts, it is plain that the 
 
36 SUGGESTIONS TO THE 
 
 expert witnesses would not be needed. Such 
 a jury would reason on the medical evidence 
 in the same w^ay that they would on the rest 
 of the evidence. We do not call experts in 
 regard to matters on which the jury are in- 
 formed. In any department of special sci- 
 ence or art, an expert may be needed to 
 make things plain to a jury. 
 
 31. The medical witness will have to meet 
 questions relating to the possible, the prob- 
 able, and the reasonably certain. It is clear 
 that evidence has all degrees of certainty, 
 from the lowest to the highest. In evidence 
 there may be an uncertainty, and as far as 
 we can, let us try to define this uncertainty. 
 In the first place, the possible is something 
 which can be ; that is, it is something which 
 can exist ; it may have taken place in such 
 a way that there is no evidence to show 
 it ; or its existence is perfectly plain ; or it 
 may not have taken place at all, as yet. 
 
MEDICAL WITNESS. 37 
 
 For example : the skull can have a fracture 
 which shows no sign of its existence ; or it 
 can have a fracture whose existence can be 
 easily demonstrated : on the other hand, the 
 skull may not have been broken, even under 
 the action of causes that are known to be 
 competent to effect this injury. The pos- 
 sible may take place in the future, yet we 
 cannot assert that it will. For instance, 
 some cases of contusion of the shoulder 
 leave permanent paralysis of the deltoid 
 muscle : such a result can be, but we cannot 
 say that it will be. The possible is there- 
 fore a question of degree, and its value as 
 evidence depends upon how far it does away 
 with the impossible. 
 
 32. In the second place, that which is 
 probable is something which can be proved. 
 The question of probability relates to things 
 that exist, or that will or can come to pass. 
 If the expert says that a fact is or will be 
 
38 SUGGESTIONS TO THE 
 
 probable, lie says, in effect, that sucb a fact 
 can be proved. That is, he implies that 
 there are other facts whose existence enables 
 him to infer that another fact does or will 
 exist. In other words, the probable fact 
 has its proof in the existence of certain 
 other undisputed facts. Let the expert ex- 
 amine a case of injury : he jfinds, or thinks 
 he finds, certain signs and symptoms ; these 
 are fairly well determined facts ; they are 
 proof of the existence of a fracture, for in- 
 stance ; hence the expert says that a fracture 
 is probable. Again, an expert examines a 
 case in which there is deformity and dis- 
 ability : he has seen such cases before, and 
 their deformity and disability have been per- 
 manent. The facts of such experience are 
 probative in regard to the special case ex- 
 amined by the expert. They enable him to 
 say that the deformity and the disability of 
 the case in question are probably perma- 
 
MEDICAL WITNESS 39 
 
 nent. It will be seen that probative facts 
 may be stronger in one case than in another. 
 Hence the question of probability is also 
 one of degree. There is another side to this 
 question. We say a thing is probable, when 
 we have an impression, more or less strong, 
 that there is evidence somewhere in exist- 
 ence which will prove it : the difficulty lies 
 in the way of obtaining this evidence ; if 
 we could get the evidence, the thing would 
 be proved. In effect, a probability seems 
 to leave in our minds the impression of an 
 uncertainty. Yet in the highest degree, that 
 of eminent probability, we seem to reach 
 very near to the point of certainty. 
 
 33. In the third place, that which is rea- 
 sonably certain depends for its existence, as 
 a fact in evidence, on strong facts which are 
 known to or admitted by the witness who 
 reasons on them. That is, there are medical 
 facts which appear in evidence. They are 
 
40 SUGGESTIONS TO THE 
 
 admitted by the Court, and they are believed 
 by tlie jury. Given these or similar facts 
 for the expert to reason upon, and then he 
 infers that some other fact exists, or will 
 exist, that this fact is or will be certain to 
 the extent that there has been no mistake 
 in his reasoning, and that his inference is 
 legitimate, being founded upon the evident 
 facts : and this inferred fact is one of rea- 
 sonable certainty. A fact, then, that is or 
 will be reasonably certain, is one that issues, 
 or will issue, from other proven facts, the 
 causal relation, the relevancy, between the 
 evident facts and the reasonably certain 
 fact of inference being traced and defined 
 in the mind of a reasonable and well-in- 
 formed expert. Now it will be seen that 
 the expert does not warrant the certainty 
 of his inference being or becoming a fact. 
 A great many things might happen to 
 change the nature of a result that has been 
 
MEDICAL WITNESS. 41 
 
 inferred with reasonable certainty. In the 
 mind of the expert a fact is or will be rea- 
 sonably certain because he has reasoned 
 soundly and inferred correctly in regard to 
 facts whose existence has been proven : his 
 inference is reasonable, and is therefore rea- 
 sonably certain. 
 
 34. The expert, in stating that a thing is 
 reasonably certain, affirms that it exists or 
 will come to pass. Such a statement, if 
 properly made, has a strong and binding 
 force, and carries conviction to the minds of 
 a jury ; it is like a good verdict which satis- 
 fies all intelligent men. A reasonable cer- 
 tainty is stronger than a probability, even 
 an eminent probability. A fact which is 
 probable, as has been said, is one that can 
 or may be proved, and it so stands in the 
 mind of the expert. A reasonably certain 
 fact is one that, in the mind of the expert, 
 is already proven. In matters of evidence, 
 
42 SUGGESTIONS TO THE 
 
 a probability is stronger than a possibility ; 
 a reasonable certainty is stronger than a 
 probability; the weakest testimony is that 
 of possibility. And yet, after all, the great 
 leading question is, Can the expert answer 
 as to the possibility, the probability, or the 
 reasonable certainty ? If he cannot answer, 
 if he cannot form an opinion, then his tes- 
 timony, such as it is, must be excluded. 
 Everything depends upon his conviction, — 
 if he is convinced that he can form an 
 opinion, he is entitled to testify. He may 
 be mistaken in his conviction ; this would 
 be an honest error, one of judgment, and 
 not one of intention. On the other hand, 
 an expert has it in his power to affirm that 
 he can answer a question, when he cannot, 
 and when he knows he cannot, and when he 
 intends to do violence to reason. Such a 
 course can only savor of the baseness of 
 perjury. There is only one other thing 
 
MEDICAL WITNESS. 43 
 
 that is like it, and that is the solemn state- 
 ment of a litigant witness, that he has 
 symptoms which do not exist, and which it 
 is very difficult to disprove, since it is a 
 matter of personal or mental experience. 
 
 35. As to the relevancy of an expert's 
 opinion expressing a reasonable certainty, 
 there can be no question. And it seems to 
 me that opinions as to possibility and proba- 
 bility, as such, are to be admitted in so far 
 as they are relevant. If a fact can be, or 
 can be proven to be, it ought to have weight 
 according to the degree of its possibility or 
 its probability. The expert can deny that a 
 fact can be ; he can say that its existence is 
 impossible. He can say that a fact cannot 
 be proved ; he can affirm that it is improba- 
 ble. Such denials are, no doubt, relevant 
 as opinions in regard to medical facts that 
 are relevant to the facts in issue. We can 
 say that it is reasonably certain that a fact 
 
44 SUGGESTIONS TO THE 
 
 does not exist ; we can say that a statement 
 of fact is improbable, or impossible : and 
 then we can say that either fact might exist. 
 In a given case of injury, the expert is rea- 
 sonably certain that it is possible or proba- 
 ble for a recovery to take place ; he is not 
 reasonably certain that it will, he only 
 knows that it is possible or probable. It 
 amounts to this, that we cannot safely neg- 
 lect and exclude certain minor degrees of 
 proof that have less force and weight than 
 facts and opinions which are reasonably cer- 
 tain. For if we do, we shall not compass 
 the whole truth, and there will be part of 
 the evidence omitted, so that justice will not 
 be made exact and even-handed. 
 " 36. When the doctor or the medical jurist 
 investigates a case of injury or disease, he 
 may always ask bimself two questions : " Is 
 there any change of structure ? Is there 
 any impairment of function?" These ques- 
 
MEDICAL WITNESS. 45 
 
 tions are always pertinent and relevant for 
 both medical and legal practice. They are 
 so far fundamental and general that all 
 other questions are, as it were, grouped 
 around them ; all relevant and admissible 
 questions centre in these two. All other 
 relevant interrogatories lead to the questions 
 of structure and function. Answer these 
 two general questions in the affirmative, and 
 there is case for treatment or for trial. 
 Then there follow two correlative questions : 
 " What amount of deformity exists or will 
 exist? What is or will be the extent of 
 the disability ? " These two questions are 
 sometimes of the greatest importance, espe- 
 cially in the assessment of damages. But if 
 there is neither deformity nor disability, 
 there is no case for the doctor, none for the 
 medical jurist, none for litigation; unless 
 the would-be litigant makes an attempt to 
 feign disease or injury. 
 
46' SUGGESTIONS TO THE 
 
 37. The surgeon deals with evidence in 
 the pursuit of his profession. This evi- 
 dence goes to prove or disprove the exist- 
 ence of disease or injury. No one is more 
 conversant with the nature of evidence and 
 the process of obtaining it, than the sur- 
 geon. If there is no evidence, there is no 
 case for him. Yet there may be evidence 
 which he has not found, and then there is a 
 case. On the other hand, he may think 
 that he finds evidence of a case, when a case 
 does not exist. The evidence of disease and 
 injury consists in certain signs and symp- 
 toms : and it is important for the medical 
 jurist, as well as the doctor, to be familiar 
 with the nature of this evidence, — to know 
 how to distinguish between signs and symp- 
 toms. They are essentially different in na- 
 ture and value, for the purposes of medico- 
 legal as well as medical practice. They 
 constitute a series of facts that are relevant 
 
MEDICAL WITNESS. 47 
 
 evidence, in the trial of cases in which med- 
 icine enters as a component part. A sign is 
 a fact of medical evidence, observed, deter- 
 mined, and related by the medical witness. 
 The deformity, the mobility, and the grating 
 caused by the fragments of a broken bone 
 are signs. A symptom is a fact of medical 
 evidence experienced, known, and related 
 by the litigant witness. Pain and insen- 
 sibility, as the effects of injury, are symp- 
 toms. A sign comes to the knowledge of 
 the Court and jury through the perceptive 
 faculties and the reasoning powers of the 
 medical witness. A symptom becomes known 
 to the Court and jury through the feeling 
 and the statement of the litigant witness. 
 As a piece of evidence, a sign is objec- 
 tive, and a symptom is subjective. In this 
 respect, we are dealing with a little mental 
 philosophy. We are considering two sets 
 of facts : one, subjective ; the other, objec- 
 tive. 
 
48 SUGGESTIONS TO THE 
 
 38. A sign is a fact whicli can be ob- 
 served, determined, and related by a number 
 of competent witnesses wbo can make the 
 evidence certain beyond a reasonable doubt. 
 A symptom is a fact whicli can be felt and 
 related by only one witness, — and he has 
 an interest in the statement he makes. If 
 the expert is permitted to say that the liti- 
 gant witness has told him that he has suf- 
 fered pain, he is giving what is closely re- 
 lated to hearsay evidence. Yet it is not so 
 exactly. In the mean time, the expert is 
 entitled to learn the symptoms of injury 
 or disease, from the litigant witness. The 
 litigant witness alone can tell the expert of 
 the pain he suffers. The expert may hear 
 the story of his sufferings, from the litigant 
 witness, in order that he may come to some 
 conclusion in regard to their real nature. 
 Are his sufferings real or imaginary ? Does 
 he pretend to suffer, when there is nothing 
 
MEDICAL WITNESS. 49 
 
 the matter with him ? Momentous ques- 
 tions, that are at times difficult to answer. 
 But the expert knows that injuries cause 
 pain, and he says that a patient suffers pain, 
 even if the patient does not tell him that he 
 does, when he knows that the patient has 
 had an injury. 
 
 39. In regard to the question of pain, we 
 may add : the litigant witness feels and 
 suffers his own pain, and so testifies. He is 
 entitled to compensation for the pain he 
 is made to suffer by the negligence of an- 
 other. If there were no way to measure its 
 extent except by the statement of the one 
 who suffers it, there would be room for ex- 
 aggeration, deception, and injustice. Now 
 it is perfectly plain that it is the duty of 
 the expert to test the reality and the valid- 
 ity of the pain which a litigant witness says 
 he feels, and he must do so in every proper 
 and reasonable way. In this work of detec- 
 
50 SUGGESTIONS TO THE 
 
 tion he must apply his knowledge of anat- 
 omy and pathology, as well as use his best 
 skill and experience. At times, it is quite 
 impossible to put the detection of a litigant 
 into a conclusive and tangible form of evi- 
 dence. I know of no task, performed by 
 the expert, more difficult than this, — more 
 uncertain, more thankless. I am not sure 
 but that we are, in many ways, more or less 
 at the mercy, as they say, of these unmiti- 
 gated scoundrels, who, in their role of liti- 
 gant, prey upon the defenseless defendant, 
 and commit, under the shadow of justice, a 
 nameless crime, for which there has not as 
 yet been found any means of conviction, 
 much less has there been invented any pun- 
 ishment. 
 
 40. I once had a patient who said he had 
 a very severe pain in his right knee. He 
 left his work and went to bed, and when I 
 saw him, I found his right lower limb as 
 
MEDICAL WITNESS. 61 
 
 straight and rigid as possible. The knee 
 was neither red, hot, nor swollen, but when 
 I touched it he gave expression to great suf- 
 fering. An attempt to bend the knee ap- 
 peared to increase the pain to an alarming 
 extent. But he would raise the limb* with 
 the leg extended, and say that it did not 
 hurt him. The complete absence of signs 
 of any kind whatsoever contradicted all the 
 statements that he had made. I resolutely 
 told the patient that there was nothing the 
 matter with him, and when I added ridicule 
 to assertion, he confessed his attempt to de- 
 ceive and went back to his work. 
 
 41. The evidence in such a case as the 
 following is of a higher grade. In the 
 evening a lady, as she was walking along, 
 fell into an uncovered hole in the sidewalk 
 and injured her left hip. Six months after 
 the accident, she brought a suit for damages 
 against the contractor who had caused the 
 
52 SUGGESTIONS TO THE 
 
 hole to be made. Before the trial, at the 
 request of her attorney, I examined this liti- 
 gant and found the following evidence. A 
 to-and-fro motion of the wing of the left 
 ilium, under pressure with my hand ; a new 
 line of motion, going through the socket of 
 the thigh-bone ; an up-and-down motion of 
 the left thigh-bone and the ilium when she 
 walked ; and a considerable swelling of the 
 left lower limb. The litigant walked with 
 a cane and limped. She complained of pain 
 when pressure was made upon different 
 parts of the left hip. She said that she had 
 suffered from disordered menses since the 
 time of the accident. Now it will be seen 
 that the facts which have been related in 
 this case are grouped around the two general 
 facts of damaged structure and impaired 
 function. From the facts that I found I 
 drew the following conclusions : the hip- 
 bone, that is, the ilium, had been broken; 
 
MEDICAL WITNESS. 53 
 
 bony union of the fragments had not taken 
 place ; the nerves of the left hip had been 
 seriously injured, and were suffering from 
 impairment of their function. Then I ex- 
 pressed the opinion that both the deformity 
 and disability would be permanent. In this 
 case, the signs, as facts, corroborated the 
 symptoms. 
 
 42. The following case is one in which 
 the evidence appears somewhat complex. 
 A gentleman of sound mind and good sense 
 had a large estate, and managed it wisely 
 during many years of his long life. He 
 made a will giving his property equally 
 to his heirs. He grew old, and became a 
 changed man : he had a feeble step and a 
 tottering gait ; his hands never ceased to 
 tremble in his waking hours ; his signature 
 became more and more illegible, and at last 
 it could not be read ; he had frequent and 
 persistent illusions and hallucinations ; his 
 
64 SUGGESTIONS TO THE 
 
 memory became so defective that lie did not 
 recoguize his most intimate friends ; lie was 
 tormented by strange delusions which he 
 could not correct. Then he was induced to 
 make a will greatly in favor of one of the 
 heirs, and soon after that he died. When 
 this will was contested, the preponderance of 
 expert testimony was to the effect that the 
 testator had suffered from the decay and the 
 dementia of old age, so as to disable him to 
 the extent of incompetency. That is, the 
 experts expressed the opinion that the tes- 
 tator was incompetent to make a will. But 
 the learned Judge before whom this case 
 was tried had some doubts as to the strength 
 of this view, and was reasonably certain, 
 according to his decision, that the testator 
 was competent to make a new will. 
 
 43. We make the following comments 
 on this case. The testator had been in a 
 sound mind and was competent to make a 
 
MEDICAL WITNESS. 66 
 
 will, and did make one which was eminently 
 just. After that he became greatly impaired 
 in mind, as well as body, having impaired 
 sensation, sense, and voluntary motion. In 
 this case there was a question of mental 
 disability. In fact, there was a reasonable 
 doubt as to the competency of the testator 
 to make a will. This doubt, which had 
 been raised by the contestants and which 
 had been supported by the opinions of ex- 
 perts, was set aside, and a judicial opinion 
 of competency was given. This might have 
 been according to law, and may have been 
 consistent with the facts of evidence, — it 
 may have met the fact in issue, — which was 
 that of competency to make a will. But it 
 seems to me that a more important fact 
 ought to have been in issue, — one that af- 
 fects public policy, as well as the impartial 
 administration of justice. This was the 
 real question : did the testator dispose of 
 
56 SUGGESTIONS TO THE 
 
 his estate, — or property, — just as he 
 wanted to, according to his wish and pur- 
 pose, when he made his will being in good 
 health and of sound mind ; or, at the time 
 he made a new will, being in the last stages 
 of senile decay and dementia ? It seems to 
 me that the last will ought to have been set 
 aside, and that the first one ought to have 
 been declared valid. 
 
 44. In this place may be noted some of 
 the sources of error which may affect the 
 credibility and standing of the medical wit- 
 ness. The following points may be made : 
 1. Deficient knowledge ; 2. Limited ex- 
 perience ; 3. Deception of the senses ; 4. 
 Delusion of the mind. 
 
 45. (1.) Deficient knowledge. Suppose 
 the doctor is called to treat a case of assault 
 or criminal ]3oisoning. The victim dies un- 
 der his care. The person who has made the 
 assault, or who has administered the poison, 
 
MEDICAL WITNESS. 67 
 
 is arrested and brought to trial. The facts 
 that become known to the doctor must be 
 related in court, under the rules of admit- 
 ting evidence. The doctor is ignorant of the 
 nature of these rules, as well as the manner 
 in which they work. He has no knowledge 
 in regard to relevancy of medical facts in 
 testimony to facts in issue. He has learned 
 the rules and precepts of his profession at a 
 school where only medicine and surgery are 
 taught. He is ignorant of law and its re- 
 lations to his profession. He is unacquainted 
 with the subject of medical jurisprudence. 
 ' He has no experience in the difficult and re- 
 sponsible duty of giving medical evidence. 
 While it may be no fault of his own, this 
 deficiency of knowledge on the part of the 
 medical witness may lead to doubt, confu- 
 sion, and uncertainty. The witness does 
 not testify clearly, and he throws discredit 
 upon a liberal profession. 
 
58 SUGGESTIONS TO THE 
 
 46. The doctor sets out in life to cure 
 people who are sick or injured. Is this for 
 the sake of the sick and the injured? Or 
 is it for his own advantage and advance- 
 ment? Has he maledictions on the law, as 
 well as on fate, because he is called into 
 court as a witness ? Has he no time and 
 no desire to meet the learned and cultured 
 gentlemen of the Bar, who are glad to wel- 
 come him, as occasion may require ? Is he 
 afraid to stand or sit under the shadow of 
 justice, and deliberately tell the truth in 
 order that some one may be prevented from 
 suffering a great wrong ? Has he forgotten 
 the fact that he belongs to a liberal profes- 
 sion ? Did he ever learn that he belonged 
 to such a profession ? Does he discard and 
 disown the deeds of mercy and benefaction 
 that brought glory and renown to the Fa- 
 thers of Medicine ? Does he shrink from be- 
 ing the champion of truth because he fears 
 
MEDICAL WITNESS. 69 
 
 the attack of the adversary? Will he let 
 Truth fall wounded and bleeding because he 
 is ashamed to come to her defense ? "Will 
 he let Justice be mutilated when her fair 
 form is assailed by her enemies ? Is he a 
 coward, that he fears to meet the gaze of 
 the public, in the defense of the imperiled 
 rights of one who has his cause brought 
 before all men ? Does he not feel that he 
 is the peer of the best in any profession? 
 Strange and unaccountable aversion, un- 
 reasonable and inconsistent attitude, of a 
 class of men who owe so much to the com- 
 munity in which they work and live ! When 
 will they try to keep their obligations to a 
 community which only asks them to render 
 a small equivalent for the franchise that 
 they have received ? 
 
 47. Let not the doctor forget that the 
 people have conferred on him a valuable 
 franchise that brings him position, respect, 
 
60 SUGGESTIONS TO THE 
 
 honor, and emolument, and exempts him 
 from duties that others are obliged to per- 
 form. He may not consider it any part of 
 his business to attend to the duties of a 
 medical jurist ; and he may avoid as much 
 as he can the duty of giving medical testi- 
 mony. The farmer, the mechanic, and the 
 merchant may be unpatriotic and refuse to 
 take up arms in the defense of their country, 
 but the state compels them to come to its 
 rescue. So the doctor cannot, with reason, 
 decline to perform the duties of a medical 
 jurist, for he thereby aids the common- 
 wealth in protecting itself against those who 
 commit every kind of crime. It must be, 
 then, that the doctor ought to qualify him- 
 self so that he can perform the duties of a 
 medical jurist with ordinary skill. He owes 
 this to the state, to justice, to his profes- 
 sion, as well as to himself. 
 
 48. (2.) Limited experience. It is true 
 
MEDICAL WITNESS. 61 
 
 that one man cannot have experience in 
 all things. The young lawyer does not ex- 
 pect to have and display the learning, the 
 ability, and the tact of his older confrere. 
 The doctor may have treated cases of dis- 
 ease and injury, but he has been employed 
 as a medical jurist in none. Yet his inex- 
 perience may be supplemented by a careful 
 study of the duties of a medical witness. 
 The doctor, as well as the undergraduate, 
 ought to be a student of medical jurispru- 
 dence. The points are these : the student 
 may learn the nature of evidence ; he may 
 understand that relevant facts prove or dis- 
 prove an issue ; he may become more or less 
 familiar with the rules of testifying ; he 
 may inform himself as to the relations of 
 law to his profession ; he may observe the 
 conduct of others as they answer questions 
 while on the witness stand ; he may make a 
 thorough study of the case in which he is 
 
62 SUGGESTIONS TO THE 
 
 going to j)erform tlie duties of a medical 
 witness. In all this let him search wisely 
 and consistently for the truth. If he does 
 this conscientiously, he will become more 
 and more a public benefactor. 
 
 49. In this place let me, as a medical 
 teacher, say that for years I have trained 
 medical students to search for and relate 
 the facts of medical evidence, — the evi- 
 dence of diagnosis and prognosis. I need 
 not remind the reader that every diagnosis, 
 every prognosis, is either a good or a bad 
 verdict. In this work of training I have 
 brought to bear the results of my experience 
 in both surgery and medical jurisprudence. 
 This training has many advantages. To 
 examine and cross-examine patients who 
 are prone to conceal the causes of disease, 
 who tell their own story, who exaggerate the 
 symptoms, involves a method similar to that 
 employed in the courts in obtaining and 
 
MEDICAL WITNESS. 63 
 
 testing evidence. The patient gives his view 
 of his own case ; to the doctor he states facts 
 and expresses opinions. The patient is an 
 interested witness, whose testimony is af- 
 fected by his own morbid feelings. Now the 
 doctor wants the facts that underlie the 
 symptoms and signs. He may indeed listen 
 kindly to the recital of the patient's feelings 
 and conclusions. Yet he must ever keep in 
 mind that the signs which he discovers may 
 contravene and contradict in many instances 
 the statements of the patient. He must 
 form his own opinions upon a careful con- 
 sideration of the ascertained facts. So that 
 the doctor is not entirely unfamiliar with the 
 process of obtaining and sifting evidence. 
 Sometimes counsel might learn a lesson in 
 the examination of witnesses by observing 
 the methods of investigation employed by 
 the experienced practitioner of medicine. 
 To educate a medical student in the work of 
 
64 SUGGESTIONS TO THE 
 
 examining and cross-examining patients will 
 give him a good preliminary training for 
 the duties of a medical jurist. 
 
 50. (3.) Deception of the senses. That 
 the senses of the medical jurist or witness 
 may be deceived is illustrated by the fol- 
 lowing cases. A friend of mine, a medical 
 man and a careful observer, said that he 
 saw me at a certain time in the basement 
 of a house across the street from where he 
 lived. It was in the forenoon, when the 
 light is good and when the mind is clear, 
 and when the mistakes of illusions and the 
 errors of delusions would be least apt to oc- 
 cur. In the evening of the same day my 
 friend spoke to me of having seen me as 
 above stated. I told him that his eyes were 
 false witnesses, and had deceived and im- 
 posed upon him, for at the time in question 
 I had been in another place, where several 
 persons who knew me well had seen me and 
 
MEDICAL WITNESS. 65 
 
 talked with me. The strange thing about 
 his illusion was that my friend had known 
 me for years. At one time I attended him 
 for a broken leg, when he saw me daily dur- 
 ing many weeks. It would have been diffi- 
 cult to impeach his testimony, as his charac- 
 ter for truth and probity was of the highest 
 order. He was greatly surprised and im- 
 pressed when convinced that I was not where 
 he supposed he saw me, and pleasantly re- 
 marked that there had been no murder 
 committed in his neighbor's house across the 
 street. Such a case as this should make a 
 lasting impression upon us all, for it is pos- 
 sible, under certain circumstances, to con- 
 vict an innocent man of a crime, through 
 the illusions and delusions of witnesses who 
 have unimpeachable characters. It startles 
 one to think of a possibility of this kind. 
 
 51. The following case made a strong im- 
 pression upon me : 1 once saw a log which 
 
Q6 SUGGESTIONS TO THE 
 
 was to be cut up into boards, and wbicli 
 weigbed over two tons, roll swiftly down a 
 side-hill and go over a boy about seven years 
 of age. It looked as if the boy would be 
 crushed, but he jumped up and ran away, 
 none the worse for his adventure. Those 
 who saw and heard of the accident said it 
 was a miracle that the boy was not killed. 
 There was no doubt about the fact of the 
 log going over the boy, and also that the 
 boy was not injured at all. But what was 
 the explanation? On examination, it was 
 found that the boy had fallen into a hollow 
 in the ground, and that the log had only 
 come in contact with his body as it went 
 over him ; there had been no miracle at all, 
 for there was only a hole in the hillside. 
 The boy would have been crushed if the log 
 had struck him with the full force of its mo- 
 mentum. Sense deceptions are of quite fre- 
 quent occurrence in every-day life, and the 
 
MEDICAL WITNESS. 67 
 
 medical witness has his share of them too, 
 and the sooner this important fact is rec- 
 ognized, the sooner we will have an im- 
 provement in the administration of justice. 
 Many more cases to the same effect could be 
 adduced by me, but let these suffice for the 
 present. 
 
 52. (4.) Misleading the mind. That 
 the mind of the doctor, and so the mind of 
 the medical witness, may be misled, is il- 
 lustrated by the following cases. Once 
 durino' the War of the Rebellion an officer 
 was my patient ; he was a brave and. efficient 
 officer, and had been discharged from the 
 service for permanent disability. He ap- 
 peared to have complete paralysis of the 
 lower limbs, and so could not walk. He 
 was under my care for a few days while on 
 his way from the front to his home ; out of 
 pity for his helplessness I often carried him 
 upon my back in the hurry and exigency of 
 
68 SUGGESTIONS TO THE 
 
 transportation. I learned afterwards that 
 lie entirely recovered in a short time after 
 he reached home. The minds — the rea- 
 sons and judgments — of the surgeons who 
 sent him home for permanent disability had 
 been misled ; a more careful examination of 
 his case would have resulted in making a 
 correct diagnosis. 
 
 53. At another time, a colored soldier 
 while on the Hospital Transport seemed to 
 have epileptic fits. I saw him in a fit of 
 great severity, and suggested that the nurses 
 throw him overboard to the sharks because 
 he could not fight any more, and because 
 the government would soon have to bury 
 him. This heroic suggestion at its incep- 
 tion acted like magic, and restored the seem- 
 ing sufferer to his normal condition in a 
 moment. His cure was complete and per- 
 manent ; and what was more, the cure 
 appeared to be contagious, since several 
 
MEDICAL WITNESS. 69 
 
 colored soldiers having the same kind of fits 
 got well at once and remained so. The di- 
 agnosis of epilepsy had to be changed to 
 that of malingering. 
 
 54. Take the following case. A woman 
 fell from a street car upon her left knee, and 
 after several weeks she called a doctor who 
 told her that her knee-pan had been broken 
 and that bony union had taken place. Then 
 she brought a suit against the railroad com- 
 pany for damages. At the trial, the experts 
 on both sides said that her knee-pan had 
 been broken : those for the plaintiff said 
 that the fracture occurred at the time she 
 fell from the car; those for the defendant 
 said that the fracture occurred at some 
 previous time ; they agreed as to the exist- 
 ence of a fracture, but differed as to the 
 time when it took place. The defendant 
 tried to prove that it took place at a previous 
 time ; the plaintiff tried to prove that it 
 
70 SUGGESTIONS TO THE 
 
 took place at the time of the accident. But 
 it was then proven that the plaintiff's right 
 knee-pan had a sign similar to the one on 
 the left knee - pan : this sign was a trans- 
 verse furrow in front of the bone ; it led 
 the experts to say that there had been a 
 fracture. This sign was as good proof of a 
 fracture of the right knee-pan as it was of 
 a fracture of the left one. In addition to 
 this, how the fragments of a broken knee- 
 pan could unite by bone, when the patient 
 was up and about all the time, and was 
 not treated for an injury at all, seems to be 
 very incomprehensible to the practical sur- 
 geon. Were the experts of both sides 
 misled in regard to this case ? It appears 
 to be reasonably certain that they were. 
 
 55. A German sailor fell ten or twelve 
 feet, and struck upon the back of his head 
 and neck : his neck and head were twisted 
 to the left ^nd bent forward. Some of the 
 
MEDICAL WITNESS. 71 
 
 doctors who saw him said that he had a dis- 
 location of the neck ; others said that he had 
 some impaction of one or two bodies of the 
 spine-bones of his neck. It was evident 
 enough that he had injured his neck ; but 
 the whole truth of the case did not come to 
 liofht until it was found out that he had suf- 
 fered from a wry-neck all his life. Then 
 the obscurity and the difficulty of his case 
 were cleared up. It seemed as if he was 
 trying to make his injury appear worse than 
 it was, by concealing his life-long disease. 
 
 56. The dead body and its surroundings 
 exhibit a'p^earances : we do not then speak 
 of signs and symptoms. Any and all ap- 
 pearances of the dead, in cases of crime, 
 must be carefully examined by the medical 
 jurist, who ought to write the facts down in 
 detail and without remarks or comment. 
 These facts relate to the following points : 
 the condition and quality of the clothing 
 
72 SUGGESTIONS TO THE 
 
 on the dead body ; the position and attitude 
 of the body and the limbs ; the appearance 
 of the face, which may retain the last ex- 
 pression ; the temperature, if need be, as 
 shown by the thermometer ; the rigor mor- 
 tis, as tested by the resistance ; the pallor or 
 lividity of the skin ; the wounds, if any, 
 and their nature, location, and extent ; the 
 presence of blood and its condition ; in fine, 
 all objects on or about the dead body. 
 
 57. The medical jurist must also note 
 and record the appearance brought to light 
 during the post - mortem examination. 
 Every organ of the body must have a care- 
 ful examination, for the pathological, micro- 
 scopical, and chemical conditions and ap- 
 pearances may all be important in their 
 bearing on the guilt or innocence of the 
 person suspected, arrested, or brought to 
 trial. These facts of the autopsy must go 
 with the facts previously exhibited by the 
 
MEDICAL WITNESS. 73 
 
 dead body. All the facts of the appearance 
 and the autopsy are relevant to the facts 
 in the issue: they will tend to prove the 
 guilt or innocence of some one. 
 
 58. The doctor may be called to a case in 
 which poison has been administered, with 
 intent to take life, — to a case in which 
 wounds have been inflicted with intent to 
 kill : he is already a doctor, and at once 
 he becomes a medical jurist. Clearly two 
 grave duties now rest upon him : he must 
 administer remedies and try to save life, 
 making no distinction as to whom he is to 
 save. He is also charged with a legal and 
 a social duty; he becomes a witness, who 
 holds the keys of life and death, not only 
 of his patient but also of the person who 
 has given the poison or inflicted the deadly 
 wound. So it is his duty to observe and 
 record the signs and symptoms with care 
 and precision, for they are relevant to the 
 
74 SUGGESTIONS TO TEE 
 
 facts of guilt or innocence. A careless ob- 
 servation, a hasty opinion, may implicate the 
 innocent, or let the guilty go free. 
 
 59. After the medical jurist has made his 
 record of the facts of the appearance of the 
 dead body, as well as those of the autopsy, 
 it will be competent for him to write down 
 his impressions of the case, and add such 
 remarks, comments, and opinions as accord 
 with his reason and judgment. These im- 
 pressions are received, these remarks and 
 comments are made, these opinions are 
 formed, when the facts of appearance and 
 the autopsy are fresh and vivid in the 
 mind of the medical jurist ; and if they are 
 put on record they will be of more value 
 than any subsequent impressions, remarks, 
 comments, and opinions ; for they will ma- 
 terially aid the memory, reason, and judg- 
 ment of the medical jurist when he becomes 
 a witness. 
 
MEDICAL WITNESS. 75 
 
 60. The doctor must be reasonably cer- 
 tain that his patient is going to die ; that he 
 does not expect to survive his disease or in- 
 jury ; that he does not entertain any hope 
 of recovery ; that, in so far as the things of 
 this world are concerned, he is in extremis. 
 The doctor writes down the dying declara- 
 tion, and he writes all, even the very words 
 spoken by the person who is about to die. 
 He cannot add anything to these words, nor 
 can he take anything away from them. And 
 the proper party to assure tbe dying person 
 of his fate is the doctor, for he alone is sup- 
 posed to know when people are going to die. 
 In order that dying declarations may be ad- 
 mitted as evidence in court, the person who 
 is in extremis must be asked, Do you ex- 
 pect to die ? The answer must be in the 
 affirmative. Also he must be asked. Have 
 you any hope of recovery ? The answer 
 must be in the negative. It would seem as 
 
76 SUGGESTIONS TO THE 
 
 if a person who is convinced that he is 
 going to die, and is without hope of recov- 
 ery, may make a valid dying declaration, 
 no matter how he is impressed with the ex- 
 pectance of death and the hopelessness of 
 recovery. 
 
 61. The doctor may also write down his 
 impressions and opinions in regard to the 
 mental condition of the declarant. Does he 
 see and think clearly ? Does he know and 
 appreciate what he says ? Is his reason dis- 
 turbed ? Is his judgment weakened ? Is 
 his mind deluded? Are his mental faculties 
 disabled ? And if so, to what extent ? Does 
 he appreciate the responsibility of making 
 a dying declaration ? Does he feel that he 
 can neither gain nor lose in this world by 
 what he affirms ? Is he impressed with the 
 knowledge and the conviction that the sol- 
 emn declaration of the truth is the only 
 thing that can avail him in the future ? An 
 
MEDICAL WITNESS. 11 
 
 expert's answer to these questions bears upon 
 the value of the dying declaration, in so far 
 as it is admitted as evidence. And no one 
 but an expert can answer them. 
 
 62. Dying declarations are admitted as 
 evidence only so far as they describe those 
 facts which could have been related in court 
 under the obligations and sanctity of an 
 oath. It is the province of the Court to de- 
 termine the admissibility of these declara- 
 tions. It belongs to the jury to say how 
 far they are credible. It is the duty of 
 the medical witness to relate them in court. 
 The extent to which dying declarations are 
 relevant is no doubt obscure. It is for the 
 purpose of throwing some light on this 
 point that the following comments are made. 
 It has been generally assumed that the per- 
 son in extre'inis knows and feels the respon- 
 sibility and the solemnity of the occasion ; 
 that he feels he has nothing to gain or lose 
 
78 SUGGESTIONS TO THE 
 
 in this world ; that the things of the next 
 world may properly engage his attention ; 
 and that the truth, as if under the obliga- 
 tions and the sanctity of an oath, will be 
 related by him. The presumption of com- 
 mon sense, and both law and practice, have 
 been to this effect. Yet the person in ex- 
 tremis may be in such a physical and mental 
 state as to unfit him for making a true and 
 relevant statement of facts in his dying 
 declaration : his nervous system may be in 
 a state of severe shock ; his attention may 
 be distracted by great and persistent pain ; 
 his reason may be disturbed by the magni- 
 tude of the sudden calamity that has be- 
 fallen him ; he may have a great and fixed 
 hatred toward the person who is suspected 
 of wounding or poisoning him. In view of 
 these things, it seems to me that it is rele- 
 vant for the medical expert to state to the 
 Court and jury the facts relating to the com- 
 
MEDICAL WITNESS. 79 
 
 petency of the person in extremis to make 
 a dying declaration. There is another 
 point in this matter of great moment : the 
 person in extremis is not cross-examined. 
 He has told his story ; he has been truthful 
 to the best of his ability ; he had no motive 
 to exaggerate or misrepresent. Yet it is 
 possible that he might be mistaken. He 
 may have been deceived. In his condition, 
 could he not have had some illusion, some 
 hallucination, some delusion ? In bis state- 
 ment might there not be something that he 
 would wish to correct? The truth of his 
 statement has not been analyzed and tested 
 by the cross-examiner. Even if it be un- 
 der the shadow of death, a dying declaration 
 in evidence is very much like the evidence- 
 in-chief of a litigant witness. Since these 
 things are so, it would be safe practice to 
 follow the doctrine that a dying declaration, 
 being only examination-in-chief, ought not 
 
80 SUGGESTIONS TO THE 
 
 to have the same weight and the same influ- 
 ence as the testimony of the declarant, if 
 he were in court under the cross-examiner's 
 searching analysis. 
 
 63. Two questions of privilege relate to 
 the medical witness. First, he cannot be 
 made to incriminate himself. Second, he 
 must hold professional secrets as sacred, 
 and must not relate them in court. What- 
 ever the doctor sees, hears, or finds out in 
 any way, in regard to the disease or injury 
 of his patient, having a bearing on the 
 treatment, is of the nature of a professional 
 secret. In court, these secrets are as if they 
 did not exist. They remain as an untold 
 story — as if they were still locked in the 
 breast of the patient. The patient, as a liti- 
 gant, alone has the power or privilege to 
 permit the medical witness to disclose them. 
 And when the patient dies there is an end 
 of these secrets, for they are supposed, in 
 
MEDICAL WITNESS. 81 
 
 law, to perish with the decedent, and the 
 seal of secrecy cannot be broken by heirs, 
 representatives, or administrators, since 
 these secrets relate to the decedent's health, 
 and perhaps his reputation and character, 
 and the law, as well as public policy, has 
 wisely decreed that those who come after 
 him can only reach the estate he has left. 
 
 64. It must be kept in mind that the pa- 
 tient imparts to his medical adviser a know- 
 ledge of his secrets for the sole purpose of 
 promoting his own well-being and advan- 
 tage. This knowledge is confidential, and it 
 enables the doctor to treat his patient with 
 more success. The doctor receives these se- 
 crets for the sole purpose of aiding him in 
 curing his patient, and he receives along 
 with them a consideration, a fee, to compen- 
 sate him for his professional advice. The 
 doctor and the medical witness are under 
 the same obligation : they must not disclose 
 
82 SUGGESTIONS TO THE 
 
 professional secrets. If these secrets were 
 not lield sacred by doctors and witnesses, 
 the result would be that many needing medi- 
 cal aid would not seek it. And such a state 
 of affairs would be greatly against public 
 policy. 
 
 65. More than once have I seen this ques- 
 tion of privilege applied in the following 
 way : a doctor treated a case of injury 
 and did not make it severe enough to suit 
 the ideas of his patient, who was going to 
 bring a suit at law for damages. He was 
 then dismissed from further professional at- 
 tendance on the case. At the time of the 
 trial, the defendant called the dismissed doc- 
 tor as a witness. He was not allowed to 
 testify as to the facts that came to his know- 
 ledge in a professional way, on the ground 
 that he would disclose the secrets obtained 
 for the purpose of treating his patient. At 
 the same time the litigant patient had 
 
MEDICAL WITNESS. 83 
 
 several experts in court, and they told all 
 they knew about the case, and their testi- 
 mony was clothed in the language of exag- 
 geration. 
 
 66. Suppose the expert is requested by 
 counsel to examine the injuries of some one 
 who is going into court to try to obtain 
 damao-es. He is entitled to learn certain 
 facts which the litigant knows and can tell 
 him. He may ask the following questions : 
 What was the cause of the injury? How 
 did you get hurt ? When did the accident 
 happen? What part of the body suffers 
 from injury ? What treatment has been 
 applied ? Have you been confined to your 
 bed? And if so, how long? When did 
 you first go out of your house ? Were you 
 under the care of a surgeon ? These ques- 
 tions are preliminary to the physical exami- 
 nation to be made by the expert. It is 
 evident that the cause of tlie injury, the 
 
84 SUGGESTIONS TO THE 
 
 method of its treatment, the length of time 
 since the accident, are important facts, and 
 the expert is entitled to know them, in order 
 that he can form a correct opinion. Then 
 if the litigant will truly indicate the location 
 of the injury, it will keep him from unneces- 
 sary examination, and the time of the ex- 
 pert will be saved. Why is it necessary for 
 the expert to go all over the body of a liti- 
 gant, in order to find out a local injury ? I 
 know of no better rule for an examiner to 
 follow than this, the exclusion of all other 
 parts of the body, except the one that has 
 been injured. 
 
 67. Let the expert proceed with his ex- 
 amination. Are there any signs that there 
 has been an injury ? Is there a scar ? 
 Note its size, its form, its location, its char- 
 acter. Is there a bone broken ? If recent, 
 note the crepitus, the mobility, the de- 
 formity, the disability. If time has elapsed, 
 
MEDICAL WITNESS. 85 
 
 note the disability, as well as the deformity. 
 Has the head been injured ? Note the im- 
 pairment of sensation, sense, and voluntary 
 motion. Has the spine been broken ? Note 
 the condition of the sensory, the motor, the 
 reflex, the vaso - motor, and the trophic 
 functions of the spinal cord. In a few 
 words, In a case that may be examined, find 
 out the extent of the deformity and the de- 
 gree of the disability. In doing this, the 
 expert uses his knowledge of structure and 
 function, as well as the experience that he 
 has gained by years of observation. He 
 carefully records tbe results of his examina- 
 tion. 
 
 68. The litigant witness lias a story to 
 tell, as every one knows who has had any 
 experience in sucb matters. Let us listen 
 to him : he has been Injured ; he has suf- 
 fered much pain ; he cannot work, nor at- 
 tend to business ; he has a case against some 
 
86 SUGGESTIONS TO THE 
 
 one whose negligence injured him ; he takes 
 to his bed, for the most part ; he pours his 
 troubles into the ear of any one who will 
 listen to him ; his attention is constantly 
 given to his injury ; he carries his injury 
 daily in his thoughts ; it is conspicuous on 
 the page of his memory ; he believes he is 
 deformed and disabled ; he holds the pain 
 he suffers as something convertible into 
 cash ; he is going to have all he can get for 
 it ; and the price is no inconsiderable sum ; 
 in fact, he broods over his misfortunes. 
 The story of the litigant is affected by all 
 these things. The symptoms are ever 
 clothed in the language of exaggeration, — 
 at times, unconsciously, at other times pur- 
 posely. These are the manifestations which 
 the expert must observe and interpret. 
 
 69. Again, the litigant witness may have 
 a bias. He is ever ready to bring all the 
 facts of his troubles together; he subjects 
 
MEDICAL WITNESS. 87 
 
 them to analysis, day by day, and holds them 
 with a firm grasp; the more he thinks of 
 them, the more he feels hurt ; he makes the 
 sum total much larger than it really is ; in 
 fact, he magnifies and exaggerates his case ; 
 in a word, he tries to deceive others, as well 
 as himself. He readily passes from self-de- 
 ception to the deception of others. Then 
 the case is not one of exaggeration, it is 
 really one of deception. Perhaps cunning, 
 duplicity, and falsehood take the place of 
 honesty, reason, and truth. Such products 
 are derived from the territory of malinger- 
 ing symptoms. A patient or a litigant may 
 simulate a pain, but neither can counterfeit 
 the signs of a broken bone. 
 
 70. An accident happens to some one ; he 
 is slightly injured, and is taken home. He 
 is put to bed, and is visited by his physician, 
 who finds a small bruise upon his patient's 
 back. This is the sole and only sign of in- 
 
88 SUGGESTIONS TO THE 
 
 jury. With all his sagacity, the physician 
 cannot find any other sign. The symptoms 
 are as follows : the patient cannot walk ; he 
 has but little feeling in his lower limbs ; he 
 suffers great pain in his back ; he has per- 
 sistent headache ; his appetite is gone ; he is 
 wakeful at night ; he has unpleasant dreams ; 
 he loses his ambition ; he stays in bed and 
 grows worse from day to day. Then he gets 
 a lawyer, and brings a suit for damages. 
 Distinguished experts are employed on both 
 sides, and they greatly differ in opinion. 
 After months, and sometimes years, the case 
 is tried. During the trial the litigant wit- 
 ness is carried into court on a bed. The 
 sympathy of the jury goes out to him. He 
 is the picture of despair, suffering, and 
 wretchedness. The exposure of his syste- 
 matic deception counts for nothing. A 
 large sum of money is awarded him for his 
 injuries. The case is ended, and cannot be 
 
MEDICAL WITNESS. 89 
 
 tried again. The reasonable certainty, so- 
 called, of permanent disability is not now, 
 as tliey say, reversible in law. The litigant 
 has had his day in court : his friends carry 
 hira home, and put him into his accustomed 
 bed, where he remains for a time. It is 
 not very long before he begins to improve : 
 at first he sits up in bed; day by day he 
 sits up more and more ; time goes on and 
 he is assisted into a chair ; soon after he 
 begins to walk with a pair of crutches ; in 
 a week or two more he hobbles out on the 
 street ; he gains strength so very rapidly now 
 that everybody wonders ; at last he attends 
 to business ; his progress to recovery is 
 rapid and sure ; the fame of his family phy- 
 sician has greatly increased, for no other 
 skill could have restored him from so great 
 an injury : and then he has been paid a 
 handsome sum to compensate him for all his 
 suffering, — and then he happens at last to 
 
90 SUGGESTIONS TO THE 
 
 think that he has not got much of it after 
 all. This is not a case of exaggeration, it is 
 a case of deception. Cunning, duplicity, 
 and falsehood have erected an amazing su- 
 perstructure of fraud upon a foundation so 
 slight and unsubstantial that the very breath 
 of Justice ought to level it with the ground, 
 71. In the trial of medico-legal cases, it is 
 evident that each side is entitled to have its 
 medical jurist. This right is second only to 
 that of having an advocate. Out of the 
 realization of this right arise some important 
 practical questions. One question which 
 has been much discussed, and on which there 
 is a diversity of opinions, is this : Who 
 shall select the medical experts ? In prac- 
 tice each litigant selects his own experts. 
 This is according to law. In what way is it 
 wrong ? How does it violate any personal 
 right ? How can it go against any ethical 
 principle? If it accords with right, why 
 
MEDICAL WITNESS. 91 
 
 should we change the law ? Some one says : 
 Let the Court select and appoint the medical 
 experts. It is certainly the duty of the 
 Court to decide upon the admissibility of 
 testimony. Then let us ask the question, 
 Is it proper for the Court to call witnesses, 
 even though they are medical, and at the 
 same time exercise the office of saying 
 whether their testimony is relevant or not ? 
 Well, the objector saj^s, the Court has a 
 better knowledge of who are experts than 
 the litigant. It is probable that this propo- 
 sition cannot be maintained. The Court is 
 versed in law, but is not a doctor. How few 
 doctors know about the qualifications of 
 other doctors. It is reasonably certain that 
 the experts selected by the litigants will be 
 as good as those appointed by the Court. 
 Then there is no valid reason why the con- 
 stitutional right of any citizen to have his 
 own day in court with his own witnesses 
 
92 SUGGESTIONS TO THE 
 
 should be abridged at all. Finally, let me 
 add that the family physician of the Court 
 may or may not be a skillful practitioner or 
 a competent expert. In fact, the Court, in 
 making selection of experts, may overlook 
 the best and the most desirable. 
 
 72. Once the author was requested by a 
 defendant to examine an injured plaintiff, 
 for the purpose of testifying in court. The 
 injured part was permanently and com- 
 pletely disabled, and the defendant's lawyer 
 told me that he would not detain me as a 
 witness, for he was not going to corroborate 
 the testimony of the other side. The law- 
 yer defended the case on its merits, showing 
 that his client was not liable, because it was 
 proved that the plaintiff had been guilty of 
 contributory negligence. The principles of 
 practice involved in this case are often ap- 
 plied, and accord with the right of the liti- 
 gant to call his own medical experts, or not, 
 as he may deem best. 
 
MEDICAL WITNESS. 93 
 
 73. It may happen that the medical evi- 
 dence proves too much, and that it is in seri- 
 ous conflict with the real facts of the case. 
 A case wsls tried in which the medical wit- 
 ness for the plaintiff testified that the right 
 clavicle and two ribs had been broken. 
 Three surgeons of experience, on the side of 
 the defendant, testified that they could not 
 find any signs of breakage of these bones. 
 The jury disagreed, and the case was re- 
 tried. Then on the re-trial, the medical 
 witness of the plaintiff testified that there 
 had been a severe contusion of the shoulder, 
 — which was substantially the testimony 
 given by the defendant's experts at the 
 previous trial. The jury brought in a ver- 
 dict for the plaintiff. This case • illustrates 
 how important it is for the medical witness 
 to hold to the truth in giving his testimony. 
 At the re-trial, the plaintiff's case was won 
 upon the medical testimony given by the 
 defendant's experts in the first trial. 
 
94 SUGGESTIONS TO THE 
 
 14:. A doctor treated a case of broken 
 knee-pan, and testified in regard to the re- 
 sult, wlien the patient was suing for dam- 
 ages. In substance his testimony was : 
 That the bony fragments were slightly sepa- 
 rated and that they had good union ; that 
 there was little or no deformity; that the 
 disability was very slight : The author ex- 
 amined the litigant witness and testified ; 
 That there was no union whatever of the 
 fragments ; that they would separate four or 
 five inches when the leg was flexed ; that 
 there was considerable deformity ; that 
 there was serious disability. Out of the 
 facts of a case like this two important ques- 
 tions arise : — 
 
 75. (1) One relates to the doctor's esti- 
 mate of his own work. The doctor is often 
 anxious to have his own work rated high. 
 Then he says that the results of his treat- 
 ment are of a high order. For he takes 
 
MEDICAL WITNESS. 95 
 
 pride in his work. The difficulty is in the 
 fact that he does not separate what he can do 
 from what he cannot do. In this, as in all 
 other matters, it is best to hold to the truth, 
 if you know what the truth is. If you are 
 honestly mistal^en, you are doing far better 
 than you would be if you were to affirm 
 what is untrue for the sake of making it 
 appear that you had brought about a good 
 result after treating a fracture, when you 
 had not. (2) The other relates to the result 
 of the treatment. Admit that the defendant 
 in such a case as this is liable, and that he 
 ought to pay for the injury sustained by the 
 plaintiff. The case as presented had non- 
 union of the fragments of a broken knee- 
 pan, accompanied by serious disability, such 
 as would justly call for heavy damages. Is 
 this disability without remedy ? Then the 
 damages must be paid. So say the jurj^. 
 Now admit that a reasonably safe operation 
 
96 SUGGESTIONS TO THE 
 
 can remove a large part of tlie disability. 
 Then it seems to me that the defendant 
 has a right to have this operation performed, 
 and so have the amount of damages he has 
 to pay rightly diminished. At the same 
 time, the plaintiff would be greatly benefited 
 by the operation. If such an operation 
 comes under the head of ordinary skill, 
 would the law require it to be performed ? 
 The defendant is not liable for the negli- 
 gence of others, even in such a matter as 
 this. 
 
 76. Shall the medical witnesses of both 
 sides consult on the evidence — the medical 
 facts, such as they have — before they tes- 
 tify ? Yes, if opposing counsel so direct. 
 And yet, is this a wise thing to do ? How 
 ought this matter to be managed ? In the 
 first place, each litigant has a legal and con- 
 stitutional right to produce his own witnesses 
 to testify in his behalf. In what way does 
 
MEDICAL WITNESS. 97 
 
 an expert differ from any other witness? 
 Suppose opposing counsel were to say to all 
 the witnesses: Consult together on the 
 facts of the case, and try to come to some 
 agreement, so that all will testify the same 
 way. What one witness does not know he 
 can learn from another. Then the testi- 
 mony of each witness will be like that of 
 every other. There will be no conflicting 
 statements, and the dignity of the office of 
 testifying will be maintained, and there will 
 be no impediment in the administration of 
 justice. Then it would happen that all the 
 serious duties and the difficult work of the 
 Court would be turned into a pastime and a 
 play. And where would justice be ? Can 
 any one possibly tell ? In what way does 
 the consultation of medical witnesses differ 
 from the consultation of other witnesses ? 
 Let us go a little more fully into this mat- 
 ter. A medical witness examines a case 
 
98 SUGGESIIONS TO THE 
 
 and finds certain facts and forms certain 
 opinions. These facts and opinions form 
 his testimony. They are the evidence he 
 gives in court. Another medical witness 
 does the same thing, and relates his testi- 
 mony, — gives his evidence. Is there any- 
 thing illegal or wrong about this ? Is it 
 incompetent ? In any way, does it lead to 
 injustice ? Why should an ignorant and 
 inexperienced doctor go upon the witness 
 stand and relate facts and state opinions he 
 has learned from one of mature knowledge 
 and ripe experience? Such a witness would 
 not be permitted to say : On examination 
 of Mr. A. I found such and such facts, 
 and formed certain opinions ; but on consul- 
 tation with the other doctors, I have found 
 it expedient to adopt their facts, and have 
 changed my opinions to make them agree 
 with what they think in regard to the case. 
 Yet, he is permitted to testify as to the facts 
 
MEDICAL WITNESS. 99 
 
 of the case and give opinions, only he leaves 
 out of his testimony the very essential fact 
 that he is giving as testimony the facts and 
 the opinions he has heard from others. De 
 facto this is hearsay evidence, but the Court 
 and the jury are led to believe that it is 
 direct testimony. 
 
 77. Now, what is the motive for these 
 consultations of the medical witnesses be- 
 fore trial? In whose interest are they 
 suggested? For what purpose are they 
 desired ? Who wants them ? Are they to 
 aid opposing counsel? Will they promote 
 the administration of justice ? Will they 
 favor the detection of truth ? Do they ag- 
 grandize the medical profession? What 
 does the world care about difference of 
 opinion ? Every man wants to know what 
 is true, what is right, what is just. No 
 one cares for anything but justice. Let 
 it be said that justice stands supreme over 
 
100 SUGGESTIONS TO THE 
 
 all, — hence justice must be preferred to liti- 
 gants, counsel, experts, and even the Court 
 itself. Put the matter in this way : an ac- 
 cident happens ; an injury is caused ; a suit 
 for damages is instituted ; the case is coming 
 on for trial ; one medical expert holds one 
 opinion ; a different opinion is entertained 
 by another ; indeed, they do not all agree ; 
 it is " too bad " to have this so ; it brings 
 discredit upon a beneficent and liberal pro- 
 fession ; it belittles the position and the 
 " trade " of doctor ; the medical profession 
 will not be so much respected ; it is desira- 
 ble to keep the confidence of the people ; 
 let us avoid disagreement, if we can ; we 
 ought not to be scandalized ; our usefulness 
 will be impaired ; our reputation will be 
 assailed and tarnished ; we shall not be 
 respected and trusted by the community, — 
 a very sad and undesirable state of affairs : 
 let us consult beforehand ; we can come to 
 
MEDICAL WITNESS. 101 
 
 some agreement ; we can change our opin- 
 ions, if we want to do so ; we can adopt tlie 
 opinions of others, for they may know more 
 than we do ; we will help the weak breth- 
 ren, since they are more important than 
 justice ; we will all see the same facts in the 
 same way ; we will all have the very same 
 opinions ; we will all tell the same story ; 
 we will stand shoulder to shoulder for the 
 cause of our trades - union : then counsel 
 will be brushed aside ; then the Court will 
 be impressed with our wisdom ; then the 
 jury will be enlightened by our consenta- 
 neous knowledge ; then the verdict will be 
 conclusive and final; then the people will 
 marvel at an ill-used class of men, who have 
 aggrandized themselves : the Judge will 
 have no difficulty, for he will only have to 
 expound the law ; the jury will be unani- 
 mous, for the testimony will be all in the 
 same way and to the same effect ; in fine, 
 the profession will be without a peer. 
 
102 SUGGESTIONS TO THE 
 
 78. Let tlie experts consult : suppose they 
 cannot agree ; suppose they have an honest 
 difference of opinion ; each one would be glad 
 to see and think as the others do ; in fact, 
 they would prefer to agree, if they could ; 
 but they cannot agree. What good would 
 such a consultation do? It is plain that 
 the jury, if they could, would have to decide 
 upon the points of difference, — the differ- 
 ence in the opinions of the experts. Then 
 why not let each expert testify as to the facts 
 he himself finds, and give his own opinion ? 
 Of course we shall know that the doctors 
 disagree : but judges disagree ; lawyers dis- 
 agree ; juries disagree. We do not there- 
 fore dispense with judges ; we continue to 
 employ lawyers ; we do not cease to impanel 
 juries ; and we still send for the doctor when 
 we are sick or injured. It seems, then, 
 that the consultation of medical experts be- 
 fore a trial is not by any means a remedy 
 
MEDICAL WITNESS. 103 
 
 for the apparent defects of expert testi- 
 mony ; it will not aggrandize the medical 
 profession ; it will not bring to light every 
 hidden fact ; it will not insure the perfect 
 administration of justice. Suppose we illus- 
 trate these j)oints : — 
 
 (1.) A poor woman was shot in the right 
 temple, and died in a few hours. The doc- 
 tors who were called to testify as to the 
 cause of her death told the coroner and his 
 jury that the pistol-shot wound was self- 
 inflicted. The skin about the wound was 
 as clean and unspotted as if the pistol had 
 been twenty feet away from her head when 
 it was fired. It would be physically impos- 
 sible for any one to hold the muzzle of a 
 pistol far enough aw^ay from the temple 
 under such circumstances to prevent the 
 formation of powder-marks upon the skin. 
 It was reasonably certain that a murder had 
 been committed. And yet the medical wit- 
 
104 SUGGESTIONS TO THE 
 
 nesses who had been called to testify had 
 consulted beforehand. If all the medical 
 witnesses in this case had been called and 
 examined, the guilty might have been con- 
 victed and punished. 
 
 (2.) A man was suspected of being the 
 slayer of another who was found dead in 
 the highway. The evidence to convict him 
 of the crime was the existence of blood- 
 spots on his clothing. The medical wit- 
 nesses made an examination, and agreed 
 that these were spots of human blood. The 
 suspected party was convicted and sentenced 
 to death. But before the dav of execution 
 it was clearly shown that the convicted man 
 was innocent. Then it came to light that 
 one of the medical witnesses had held the 
 opinion that the spots on the clothing were 
 not from human blood, but from some animal. 
 He had been coerced, as it were, into agree- 
 ing with the opinion of the other medical 
 witnesses. 
 
MEDICAL WITNESS. 105 
 
 79. At times, a lawyer needs the advice 
 and the assistance of a doctor in order to 
 prepare for the defense of the imperiled 
 interests of his client. Then the doctor 
 becomes, as it were, associate counsel. It 
 will be his duty to determine medical facts 
 and form medical opinions. He may outline 
 the examination of the medical witnesses. 
 The medical jurist may write out the ques- 
 tions which counsel will need to ask the 
 medical witnesses. He will indicate the an- 
 swers that these questions ought to have. 
 The need of all this flows from the fact that 
 counsel is ignorant of medicine and seeks 
 for information and knowledge in the only 
 way in which it is possible. This position 
 of associate counsel is most delicate and 
 responsible. It may be further elucidated 
 as follows : — 
 
 80. The medical jurist, in all he says and 
 does, must not be an advocate. His office is 
 
106 SUGGESTIONS TO THE 
 
 to examine facts and search for the truth. 
 Everything beyond this is foreign and super- 
 fluous. He must advise counsel vi^ithout 
 prejudice and without bias. His suggestions 
 must not show the footprints of sinister mo- 
 tives or of unfair means. He is in a field 
 of practice where he is sole judge of his own 
 conduct ; he has special knowledge ; he is 
 an investigator ; he is a scientific man ; he 
 is eminently practical ; he comes to advise ; 
 he explains difficult questions ; he sjDcaks 
 for the truth. To expose the ignorance, the 
 arts, and the fallacies of experts by pro- 
 fession ; to defend the truth against the 
 assaults of the adversary ; to aid in holding 
 up the hands of an upright and conscientious 
 advocate, is a duty that need not bring 
 shame to any man. 
 
 81. To advise counsel, to write out ques- 
 tions for medical witnesses, to assist in 
 meeting the evidence of the other side, in 
 
MEDICAL WITNESS. 107 
 
 a word, to become, as it were, an integral 
 part of one side of a case, and then go upon 
 the stand as a witness and testify, may leave 
 the medical jurist in a doubtful and uncer- 
 tain position. The jury will be very apt to 
 conclude that he is a partisan, that he is 
 working for his side, that he is really an 
 advocate, that his testimony is biased, that 
 he is under the influence of the side which 
 called him. Yet this need not be so : the 
 medical jurist need not be a partisan, nor 
 need the jury think that he is. The medical 
 jurist can advise counsel and then testify, 
 and at the same time he can be truthful, 
 unbiased, and upright. The question is per- 
 haps one of expediency and policy, and may 
 be met in the following manner : let the 
 medical jurist be simply associate counsel ; 
 let him supplement the legal advocate ; let 
 him advise and suggest in regard to the con- 
 duct of the medical part of the ease ; let 
 
108 SUGGESTIONS TO THE 
 
 him arrange the medical evidence ; let him 
 aid in the construction of the hypothetical 
 questions ; but let him not take the witness 
 stand, — then he may be part of the advocacy 
 of the case. And then the medical experts, 
 who have no relation of associate counsel, 
 are only witnesses to tell the truth, and 
 nothing but the truth, which being told, will 
 leave them free from all imputation. In 
 this way the medical jurist becomes a legal 
 part of the trial of the case. If he is 
 honest, upright, and magnanimous, he may 
 deserve and claim the same consideration 
 and respect as the attorney with whom he 
 cooperates. And now we may add : a 
 medical jurist may go on the witness stand 
 to testify, and even then do all things 
 right, just, and well, — that need not make 
 him dishonest, untruthful, and unjust. It 
 mio-ht be that the real solution of his diffi- 
 culty of practice will be found in the fact 
 
MEDICAL WITNESS. 109 
 
 that the attorney has become qualified 
 in every branch of medicine and surgery. 
 If he were so qualified, he would be com- 
 petent to try the case alone without the 
 advice of a medical jurist. And then the 
 medical jurist would be relegated to the 
 office of medical witness, where he would 
 find his legal occupation, as one who is set 
 to answer questions. 
 
 82. Cases like the following have come to 
 my knowledge : (1.) A trivial injury has 
 followed an accident. An expert by pro- 
 fession has magnified the resulting deformity 
 and disability. He has affirmed that there 
 will be serious deformity and disability for 
 life. It may be that he desired pecuniary 
 gain and hoped to reach it by means of the 
 arts and devices employed to confound law- 
 yers, mystify judges, and deceive jurors. 
 (2.) A severe injury has been followed by 
 serious results : there was marked deformity 
 
110 SUGGESTIONS TO THE 
 
 and notable disability. A pretender to ex- 
 pert knowledge, in order, perhaps, to please 
 his employer, says that the effects of the in- 
 jury are slight, and that the disability will 
 be only temporary. It is the duty of the 
 medical jurist who is associate counsel to 
 help prevent and expose such practice. He 
 is not in court to please litigants. It is his 
 business to detect falsehood, to tell the truth, 
 and let the consequences take care of them- 
 selves. He must stand at the door of the 
 temple of Justice, in order that he may help 
 to keep it closed against deception, false- 
 hood, and dishonor. 
 
 83. Suppose the doctor has been subpoe- 
 naed and has accepted the witness fee. He 
 is in the same relation as any other witness 
 who knows any facts about the case. He 
 must appear in court and testify. It will 
 be at his peril, if he does not obey and fails 
 to appear, for he alone Qai; give the essential 
 
MEDICAL WITNESS. Ill 
 
 facts of the case. His absence must de- 
 pend on some substantial reason, such as 
 sickness, or such as attendance on a case in 
 which life would be in peril if he left it. 
 In regard to the expert, he appears in court 
 when he has been engaged to testify ; and 
 he often attends without a formal subpoena. 
 Yet I have known attorneys careful not to 
 omit the subpoena in any case, for fear that 
 an expert might fail to be present and at- 
 tend to his obligation. 
 
 84. Some important questions have arisen 
 in regard to the attendance of experts. Can 
 they be comj)elled to appear ? Can they be 
 made to testify ? Can they safely neglect 
 to obey the summons, — the commands of 
 the subpoena? Suppose a subpoena is 
 served on an expert who knows nothing of 
 the facts of a case which is coming on for 
 trial. The expert is competent and can 
 render valuable aid to the litigant who 
 
112 SUGGESTIONS TO THE 
 
 wants him as a witness. What are the legal 
 duties and obligations of the expert under 
 the circumstances ? Is he bound to appear 
 in court and testify ? It could not be 
 shown that he had any information or know- 
 ledge of the facts of the case, so it could not 
 be proved that his non-appearance could 
 cause harm and damage to the litigant. 
 But it may be that there is another view of 
 this question. The opinion of the expert 
 might be of great value to the litigant, who 
 might suffer loss and damage if he did not 
 attend. Yet, let us see what the right of 
 this question is. An architect cannot be 
 forced to construct a bridge or build a house ; 
 a lawyer cannot be compelled to give his 
 professional services to a litigant ; a doctor 
 cannot be compelled to undertake and attend 
 the case of a patient ; an expert cannot be 
 brought into court and made to think, 
 reason, and give opinions on the testimony 
 
MEDICAL WITNESS. 113 
 
 of others. At the same time, It is good 
 policy for the expert to obey the subpoena 
 and appear in court. In this way, he shows 
 that he is willing to respond to the presump- 
 tion that he has been rightly called. As it 
 is a personal service, as his experience is his 
 capital in trade, as his opinion will be of 
 value to the litigant, he may demand his fee. 
 That is his unquestionable right. If he is 
 not paid, he cannot be held. He is at liberty 
 to go. All this is on the assumption of his 
 not knowing anything about the medical 
 facts of the case. On the other hand, the 
 expert may not volunteer to become a wit- 
 ness in any case : he must wait to be called. 
 85. The State sometimes becomes a liti- 
 gant, and needs the services of experts. 
 The same rule holds for the State that holds 
 for the individual. The State does not have 
 the right to take the services of the expert 
 without compensation. It no doubt has 
 
114 SUGGESTIONS TO THE 
 
 the power to compel the attendance of ex- 
 perts in such cases as need them, but it must 
 pay for their services. In this respect the 
 State differs from the individual : the indi- 
 vidual cannot compel the attendance of the 
 expert, who is legally free to refuse. But it 
 would appear as if the State could summon 
 an expert, and then pay him for his services. 
 Without an expert an injustice might be 
 done, and this would be against public 
 policy. But if an expert were subject to 
 call without compensation by the State, he 
 might thereby be deprived of the means of 
 support, and that would be an unjust and 
 an unnecessary hardship, and it would also 
 be contrary to public policy. No one can 
 doubt that the expert ought to receive rea- 
 sonable compensation for his services, not 
 only from private persons, but also from the 
 State. The litigant who can pay for the 
 services of an expert can always obtain one, 
 
MEDICAL WITNESS. 115 
 
 and it seems to me that the Court might aj)- 
 point an expert as counsel is assigned in 
 certain cases, — the Court might appoint 
 an expert to testify in certain cases, for 
 the protection of those who cannot make 
 their own defense. 
 
 86. To send a chent to a medical expert 
 so that he may make an examination and 
 gain a knowledge of the facts, as it were, 
 by deceit and fraud, is not the practice of 
 an upright and conscientious attorney. It 
 more frequently happens that the expert has 
 to defend himself ao^ainst desioniuo- Hti- 
 gants, who go to him as if they were patients 
 desiring treatment. Upon careful investi- 
 gation, I invariably refuse to have anything 
 to do with a patient who would try thus to 
 deceive me. This is my undoubted legal 
 right ; for no one can compel me to attend 
 him, especially if he begins with an act of 
 dishonesty. Our appeal is to the legal pro- 
 
116 SUGGESTIONS TO THE 
 
 fession to protect the medical profession 
 from all uujust invasions of this kind. 
 Lawyers have nothing to lose by such a 
 course, and they have everything to gain, 
 for doctors will put themselves out of the 
 way to do a favor to a lawyer who treats 
 them according to the golden rule. 
 
 87. The medical witness stands in the 
 presence of the litigants, the jury, the 
 Court, the people, and the ever-living God, 
 and makes a solemn promise ; he swears or 
 affirms that he will tell the whole truth, and 
 nothing but the truth. The promise, the 
 declaration, the affirmation, the solemn in- 
 vocation, is made, not only to the Court, but 
 also to the All-wise Judge who knows all 
 truth, who never forgets, who makes no er- 
 rors, who makes no mistakes in his decisions, 
 and whose laws are followed by inevitable 
 consequences. This is the nature of an 
 oath. This is what it means. It is the sol- 
 
MEDICAL WITNESS. Ill 
 
 emn promise or affirmation that is binding. 
 In one or the other of these lies the obliga- 
 tion or the duty. It is the violation of this 
 promise or affirmation which constitutes the 
 crime of perjury. It makes no difference 
 whether we touch or kiss the Book, or 
 whether we hold up our right hand, if we 
 promise or affirm in the presence of the All- 
 wise Judge. One form of oath-taking is as 
 good as another, and just as binding if the 
 witness speaks from the forum of his con- 
 science. 
 
 88. A prudent lawyer will find, out be- 
 forehand what a medical witness is going to 
 say when he testifies. He will try to meas- 
 ure the exact meaning of the words of the 
 witness, as well as the nature of the facts 
 they are intended to describe. A written 
 statement of the medical facts will bring 
 them clearly before the mind of the witness, 
 and it will enable the attorney to read the 
 
118 SUGGESTIONS TO THE 
 
 evidence, and then for the most part he can 
 frame the questions to be asked. He will 
 also get the opinions of the witness, and 
 have them reduced to writing, in order that 
 he may have them before him, and then he 
 can make no mistake as to their meaning. 
 
 89. The examination-in-chief, or the direct 
 examination, begins with the questions : 
 What is your name ? Where do you reside ? 
 What is your profession ? How long have 
 you been in practice ? What has been your 
 opportunity for professional work? What 
 kind of cases have you been in the habit of 
 treating ? With what public institutions 
 have you been connected ? These questions 
 establish the identity and the qualifications 
 of the witness. It is the duty of counsel to 
 ask these preliminary questions and have the 
 answers put on record, in order that the 
 circle of legal evidence may be complete. 
 The record must give a reasonable account 
 
MEDICAL WITNESS. 119 
 
 of the identity and the qualifications of the 
 medical witness. 
 
 90. In the direct examination, the lawyer 
 asks such questions as do not suggest their 
 answers. The object is to leave the wit- 
 ness free to tell the plain and simple story 
 of the facts of the case just as he knows 
 them. For a suggestion as to the answer to 
 be given might lead the witness beyond his 
 own knowledge of the case. The questions 
 are : What did you see ? What did you 
 hear ? What did you observe ? What did 
 you find ? Did you form any oj)iniou ? If 
 you did, what was your opinion ? The 
 answer to each one of- these questions must 
 be given to the jury. Not one of them can 
 be answered by " yes " or " no," except one, 
 '* Did you form any opinion ? " They are 
 not leading questions. They are direct in- 
 terrogatories, and must have resi^onsive and 
 descriptive answers. How plain, how sim-^ 
 
120 SUGGESTIONS TO THE 
 
 pie, how just is this legal procedure for get- 
 ting facts before the Court and the jury ! If 
 the witness has the truth to tell, and desires 
 to tell it, the Court will receive it, will 
 weigh it, and will declare what it means. 
 The design of the law is admirable, benefi- 
 cent, salutary. And it takes into view the 
 process of weighing the witness himself, in 
 the very scales in which justice weighs the 
 facts of the case. 
 
 91. When the witness has ceased to 
 speak, when he has told his story, then 
 comes the question of counsel : Is that all 
 you know in regard to this case? Have 
 you told all you know about it ? Let me 
 say to the witness, in this question there 
 can be two objects : the examiner may 
 rightly desire to find out if the witness 
 knows anything more than he has related* 
 That would be desirable, competent, proper, 
 and just. But if the witness says that is all 
 
MEDICAL WITNESS. 121 
 
 I know about the case, he will be very apt 
 to get into difficulty, when he is taken 
 in hand by the cross-examiner. The wit- 
 ness may mention some fact which he has 
 not already related. Then he will have 
 to give a reason for the omission and ex- 
 plain his previous statement. Did he for- 
 get or did he conceal the omitted fact? 
 The question is a very troublesome one, and 
 I have known the Court to ask it. In re- 
 ply to the question, Is this all you know 
 about this case, the medical witness may 
 answer as follows : These are the essen- 
 tial facts and points of the case that I found 
 and that have come to my knowledge ; if 
 I should recall any relevant fact that I have 
 not mentioned, I will relate it. I have 
 known an examiner to get a witness to say 
 that he had related all he knew of a case, 
 and then draw from him further facts, when 
 he would try to make the jury believe that 
 
122 SUGGESTIONS TO THE 
 
 the witness was insincere and untruthful. 
 In making these suggestions, it is our ob- 
 ject to put honest witnesses on their guard 
 against the strategy of the advocate. 
 
 92. It is not good practice for counsel to 
 ask two questions " at once," nor is it a good 
 thing for the witness to try to answer two 
 questions " at once." If this happens, the 
 witness may answer first one question, and 
 then the other. More than once have I 
 known the Court to request the examiner 
 to separate his questions. A plain, single 
 direct or cross interrogatory is always best, 
 for all parties concerned. It tends to bring 
 out the truth and promote justice. The 
 attorney who has a good case will have noth- 
 ing to lose and everything to gain by bring- 
 ing the issue before the Court and the jury 
 in the simple words of the naked truth. He^ 
 will ask only one question " at once," and so 
 on to the close of the trial. But if his ad- 
 
MEDICAL WITNESS. 123 
 
 versary asks a double question, he will see 
 to it that the witness has the opportunity to 
 answer each one separately. 
 
 93. A skillful lawyer and a competent 
 expert will cooperate in the work of bring- 
 ing the medical testimony properly before 
 the Court and jury. One is justly inter- 
 ested in obtaining, and the other is ever 
 ready to give, the plain facts of the medical 
 evidence. But it is difficult for the most 
 expert witness to answer the crooked ques- 
 tions of an incompetent examiner. On the 
 other hand, the most sagacious lawyer may 
 not be able to get at the truth, if an igno- 
 rant and presumptions witness is on the 
 stand. But an illiterate lawyer and an un- 
 educated doctor will make a most pitiable 
 spectacle, as they distort the facts and mu- 
 tilate the truth of the evidence. In fine, 
 an incompetent witness may be thoroughly 
 weighed by a shrewd lawyer, and a brow- 
 
124 SUGGESTIONS TO THE 
 
 beating lawyer may have merited chastise- 
 ment at the hands of a skilled witness. It 
 need not be insisted upon that the witness 
 who is intent on telling the truth is in 
 an impregnable position. The truth agrees 
 with itself on all sides, and is stronger than 
 any man, so that no man can break it down. 
 94. Sometimes the examiner asks a ques- 
 tion that is objectionable to opposing coun- 
 sel. The duty of the medical witness is to 
 wait for the Court to sustain or overrule the 
 objection. The Court is the sole judge of 
 the admissibility of testimony; it is the 
 business of the Court to weigh and explain 
 the meaning of the testimony ; so that the 
 medical witness must be under the direction 
 and control of the Court. In fact, as has 
 been said, the Court is counsel for the wit- 
 ness, and will protect him from the unfair 
 and the unjust assaults of the examiner. 
 To persist in answering a question when 
 
MEDICAL WITNESS. 125 
 
 there is an objection raised seems to put the 
 witness in the position of an advocate. Let 
 the witness answer in haste, and let his an- 
 swer be stricken out, then his standing with 
 the jury may be compromised. It is better 
 for the witness, therefore, not to make haste 
 in answering questions. He may take a 
 reasonable time to give his answers, no mat- 
 ter how urgent the advocate may be. 
 
 95. When the cross-examination begins, 
 there are generally two leading presump- 
 tions which guide the counsel who conducts 
 it. He presumes that opposing counsel has 
 asked for and obtained from the medical 
 witness only those facts and opinions that 
 are favorable to the side on which he testi- 
 fies. It will be seen that this is a matter 
 which affects counsel, and that it need not 
 reflect on the medical witness. The duty of 
 the one is to tell the truth ; the duty of the 
 other is to defend his client. Counsel asks 
 
126 SUGGESTIONS TO THE 
 
 only for those facts wliicli are favorable to 
 his client's case, and as a matter of course, 
 the witness gives them ; for the witness 
 may not volunteer testimony. He may in- 
 deed tell all he knows when he is asked for 
 it. The cross-examiner also presumes that 
 the medical witness is friendly to the party 
 who called him, and that he is hostile to the 
 party against whom he testifies. On the 
 basis of these two propositions, which may 
 or may not be true, the cross-examiner pro- 
 ceeds to the performance of his high duty in 
 two different directions : (1.) He does his 
 best to bring to the light of day any facts 
 known to the medical witness that opposing 
 counsel may not have asked for, or that the 
 witness may have concealed. (2.) He exerts, 
 if need be, all his skill to remove the ex- 
 aggerations that the medical witness may 
 have made of his own motion, or may have 
 been led into by the arts of his adversary. 
 
MEDICAL WITNESS. 127 
 
 Hence, there are two things for the medical 
 witness to do daring the examination-in- 
 chief, in order that he may come out tri- 
 umphant from the ordeal of a masterly 
 cross-examination: (1.) He must tell the ex- 
 act truth ; (2.) He must form correct opin- 
 ions. He must leave out of his testimony 
 all words and expressions that will in any 
 way exaggerate the facts, or diminish their 
 force. He must take the facts from the 
 storehouse of his memory and put them in 
 the scales of his judgment, and then give 
 the Court and the jury the exact weight. 
 He must also bring the proven facts before 
 his conscience, and then form such an opin- 
 ion as will stand the test of reasonable cer- 
 tainty. He must not say that he is reason- 
 ably certain, when the facts will not sustain 
 his opinion that he is reasonable and that he 
 is certain. He must not conceal anything 
 that is called for, since that might leave him 
 
128 SUGGESTIONS TO THE 
 
 in the position of a prevaricator, or of one 
 wlio did not intend to tell the whole truth. 
 He need not take any thought about the 
 effect of his testimony, when he tells the 
 whole truth. He may always feel that it is 
 not in the power of any cross-examiner to 
 assail and overturn the truth, if it has been 
 told in simple and plain words. While he 
 may not volunteer anything, he is at liberty 
 to tell his whole story, if it is asked for. 
 Yet he may keep in mind that he does not 
 conduct the case. But the medical witness 
 may properly offer to make any statement 
 that may be necessary to remove apparent 
 contradictions in his testimony ; he may ask 
 to be permitted to explain any point that 
 has been left obscure ; he may come forward 
 and request the Court to allow him to make 
 corrections in his testimony. 
 
 96. The rule of practice is for the attor- 
 ney to obtain the testimony from his medi- 
 
MEDICAL WITNESS. 129 
 
 cal witnesses. He attempts to prove one 
 point by one witness, and other points by 
 another. Or he may have a number of wit- 
 nesses testify to the same facts, only taking 
 care not to have too many, — two or three 
 witnesses are sometimes better than a greater 
 number. The cross-interrogatories relate to 
 the testimony given by each witness. If 
 the cross-examiner goes into new matter, the 
 witness becomes so far his. Then this wit- 
 ness may be cross-examined on this new 
 matter by the attorney who called him to 
 testify. The plaintiff's attorney may put 
 one of the witnesses of his adversary on the 
 stand, in order to find out the line of the 
 defense. The witness must then tell exactly 
 the same story that he would if he were 
 testifying for the defendant. Nothing can 
 harm the witness, if he tells the truth. It 
 makes no difference to him when and where 
 he testifies, so long as he tells the truth in a 
 
130 SUGGESTIONS TO THE 
 
 simple and direct manner. But it is not 
 always safe for an attorney to call the wit- 
 ness of his adversary. I have seen such a 
 procedure result in disaster to the case being 
 tried, by an attorney who put it in practice. 
 97. Finally, we may add that there are 
 two thino^s for the medical witness to do 
 during the cross-examination : (1.) He must 
 give, if he is asked for them, any medical 
 facts that he knows and that have been left 
 out, or that have been overlooked in his 
 direct examination. The fact that he has 
 been employed by a litigant who has paid 
 him an expert fee could not justify him 
 in withholding any competent evidence of 
 which he had knowledge, although it might 
 tend to establish the case of the other side. 
 All the pertinent and relevant facts belong 
 to the issue between the litigants, and must 
 not be kept back. The witness must con- 
 tinue to affirm, if they are valid, the truth 
 
MEDICAL WITNESS. 131 
 
 of the facts that he has already given in his 
 direct examination, and must not permit the 
 arts of counsel to change or diminish their 
 just and proper weight and character. In 
 a word, he must be a firm and fearless 
 champion of the truth. (2.) He must have 
 no bias ; he must be impartial ; his aim 
 must be to establish justice. 
 
 98. The leading difference between the 
 direct and the cross examination is in the 
 form of the questions. In the former, the 
 witness is asked to tell what he knows about 
 the case. The questions do not suggest their 
 answers. In the latter, he may be asked 
 ordinary leading questions, as well as those 
 that suggest their answers, in the strongest 
 possible manner. In fact, the cross-exam? 
 iner may go all over the story told by the 
 witness on his direct examination, taking up 
 the points step by step. The answers that 
 lie gave on the direct examination may be 
 
132 SUGGESTIONS TO THE 
 
 put in the form of questions which may be 
 answered by "yes" or " no." The legiti- 
 mate object of this is to test the witness. 
 Is he telling the truth ? Is he a competent 
 witness ? Is he honest ? Is he a partisan ? 
 A witness and the evidence that he gives 
 are so closely related that it is impossible 
 to separate them, — the facts as stated by a 
 witness are in some sense very much as he 
 sees them, — hence we find the testimony of 
 one witness differs from that given by an- 
 other. The witness appears to tell us about 
 the facts seen by him very much as he sees 
 them, if he is honest. 
 
 99. The theory of the direct examination 
 is, that the witness is competent, honest, and 
 truthful ; and that he can and will tell what 
 he knows of the case without help or sug- 
 gestion ; and that he has no interest in the 
 result of the trial, except that of seeing the 
 right prevail. The theory of the cross- 
 
MEDICAL WITNESS. 133 
 
 examination is that language is figurative 
 and may be made to express various shades 
 of meaning ; that the witness may be hostile 
 or incompetent ; that he may have exagger- 
 ated or prevaricated in his testimony ; and 
 that leading questions will expose partisan- 
 ship and detect the bias of the witness and 
 find out the truth. Indeed, the witness is, 
 as it were, between two millstones, which, 
 in the dual examination, may grind and sift 
 him exceedingly fine. He can afford to 
 produce some bran, if the flour is good and 
 abundant. In any case, it may happen 
 that the cross-examination will be the more 
 important, since it may establish the truth 
 more firmly, or it may show that what we 
 supposed to be the truth was only a tissue 
 of falsehood. 
 
 100. The cross-examiner treats a witness 
 in various ways. A witness whose testimony 
 is unimportant is told to stand aside ; one 
 
134 SUGGESTIONS TO THE 
 
 whose testimony is only corroborative is 
 dismissed at once ; one who is conceited and 
 incompetent may be asked certain questions : 
 Did you ever treat a case like the one in 
 issue? His answer is, No. This shows 
 his deficient experience. Then he is asked : 
 Have you read the literature of the sub- 
 ject? Once more he answers, No. Then 
 counsel tells him : That is all, sir; you 
 may stand aside. In this course, the cross- 
 examiner is, no doubt, right and just, for it 
 is his duty to detect and expose the expert 
 by profession, one who is not qualified by 
 reading or by practice to give reliable opin- 
 ions on professional subjects. For the cross- 
 examiner to fail in the performance of this 
 duty would be to leave his client open to 
 the assaults of the adversary. 
 
 101. When reputation, character, prop- 
 erty, and life are in peril, and an essential 
 part of the issue depends on the testimony 
 
MEDICAL WITNESS. 135 
 
 of a medical expert, it is no doubt the duty 
 of the cross-examiner to determine his quali- 
 fications by appropriate tests. The medical 
 expert is, or he is not, what he holds himself 
 out to be. In the latter case, he is a fraud, 
 and deserves exposure ; in the former, he 
 gains greatly in the esteem of others by 
 showing that he is genuine. The cross- 
 interrogatories may be : How long have you 
 been in practice ? How many cases like the 
 one in issue have you treated? Can you 
 relate the facts of any one of these cases? 
 Let it be remembered that the witness can- 
 not be compelled to disclose the names of 
 his patients, though he may use their cases 
 for illustration in his testimony. The gen- 
 eral statement as to qualification given on 
 the direct examination may be analyzed and 
 reduced to particulars by the cross-examiner. 
 The cross-examination may be so far ex- 
 tended as to show the real qualification of 
 
136 SUGGESTIONS TO THE 
 
 the expert. It is the duty of the expert to 
 show by all means at his command that he is 
 the genuine article. 
 
 102. The most searching and careful 
 cross-examination is reserved for the lead- 
 ing and skilled medical witnesses. We say 
 again, that such a witness has a cultivated 
 mind ; he has trained his reason and judg- 
 ment; he is a man of education and large 
 professional experience ; he knows the mean- 
 ing and import of words; he can make a 
 right use of professional terms ; he thinks 
 clearly and quickly, and can reach sound 
 conclusions at once ; he can see and under- 
 stand the facts that are relevant to the issue ; 
 he can judge of the designs and motives of 
 counsel ; he can perceive if counsel desires 
 the truth, or only wants to win his case 
 by any means at his command. Such a 
 witness has already told the truth, and will 
 not change what he has said ; he will hold 
 
MEDICAL WITNESS. 137 
 
 all his answers to the standard of the truth ; 
 he will form all his opinions on the basis of 
 reasonable certainty ; he will feel that truth 
 agrees with itself on all sides, and must ever 
 be consistent ; he will let the attacks of the 
 " cross-advocate " come with all their adroit- 
 ness on the position he holds ; the onset will 
 be in vain, leaving him securely intrenched 
 in the facts he has related and the opinions 
 he has expressed. Such a witness will make 
 a determined stand for the truth, no matter 
 what happens to the litigants. The profes- 
 sion will gain respect; the truth will be 
 victorious ; and justice will prevail. Eva- 
 sion, prevarication, and exaggeration will 
 not elevate the position of medical expert. 
 Able counsel will defeat the designs and 
 attempts of experts by profession, even 
 if they claim to be professional experts. 
 When the irretentions and the ambitious 
 have been impaled by the legal weapons of 
 
138 SUGGESTIONS TO THE 
 
 the cross-examiner, there will be none to 
 pity; and when the real expert remains 
 securely intrenched in the citadel of truth, 
 the just will rise up and applaud. 
 
 103. Medicine is not an exact science. 
 The practice of the profession is progres- 
 sive. To-day it is one thing, and to-morrow 
 it will be another. What was good prac- 
 tice a few years ago has now been set aside. 
 Yet some points in practice will never be 
 changed. A great law or a great principle 
 of practice may not be changed. But it 
 has happened that equally learned, experi- 
 enced, and competent doctors have had dif- 
 ferent theories of disease, and have carried 
 out the treatment in different ways. One 
 will give one medicine and another will 
 give something else. The practice of medi- 
 cine varies, not only with the times, but 
 also with men. And it is important for us 
 to ask what bearing this variety of theory 
 
MEDICAL WITNESS. 139 
 
 and practice has on questions of law and 
 authority. If the practice of medicine were 
 exact, and established on an immutable 
 basis, the question of authority would be 
 answered, and the application of the law 
 would be simple and easy. The established 
 and immutable practice could be printed in 
 a book which could be used as an author- 
 ity, — something like the decisions of the 
 Court of Appeals. Then the medical jurist 
 would differ from this authority at his peril. 
 But there is no such standard authority as 
 this at present. Yet we have standard au- 
 thorities of another kind. These authorities 
 are in the form of certain books. 
 
 104. What is the gist of this question 
 of medical authority ? What do we under- 
 stand by a standard work ? Is it the book, 
 or the author ? Who does not know that 
 doctors differ? Who does not know that 
 authorities differ? They are like doctors, 
 
140 SUGGESTIONS TO THE 
 
 who disagree. Who shall say which is 
 right ? When two books differ on any point, 
 they cannot both be authority. If one is 
 right, the other must be wrong. Let us 
 pass from two books that differ to the con- 
 sideration of a single book. Suppose a 
 medical witness admits that a book is ac- 
 cepted as authority in the profession. What 
 does this mean ? Are we to accept the 
 entire book? Are we to admit the va- 
 lidity of every sentence, every word? Is 
 there no weak point in the book ? Can any 
 man write a book without a mistake ? Is 
 any man above an error of judgment ? But 
 it is said that a book is a deliberate piece of 
 work, in which the author is under a solemn 
 obligation to write the truth, and that, as it 
 were, he speaks to the public as if from the 
 forum of his conscience, in some measure as 
 the witness speaks to the jury. But do not 
 the best men fall into errors and make mis- 
 
MEDICAL WITNESS. 141 
 
 takes? Is not a trial in court judicially 
 deliberate ? Does that prevent errors and 
 mistakes? Do the deliberate purpose and 
 the solemn obligation put the stamp of au- 
 thority on an author's book "? The medical 
 witness is tested by the searching questions 
 of the cross-examiner. A book cannot be 
 cross-examined ; but the author might be, if 
 he were in court. Some one says: It is 
 what the witness thinks of the book. Again, 
 some one says : It is what the profession 
 think of the book. In the name of justice, 
 how can any man, or any book, be the final 
 authority, when the practice of medicine is 
 progressive ? 
 
 105. In the nature of the case, the doctor 
 is not bound, in his practice, to follow ex- 
 plicitly and to the letter the rules and pre- 
 cepts laid down by medical authors. If 
 this were so, there would be an end to med- 
 ical progress. And we then would have no 
 
142 SUGGESTIONS TO THE 
 
 more improvements and advancements in 
 the treatment o£ the sick and the injured. 
 It would be like assuming that medicine is 
 an exact science, and that the art of healing 
 had been perfected. Everybody knows that 
 this is not so. As a matter of fact, the doc- 
 tor could not follow different rules and pre- 
 cepts in treating the same case ; hence, where 
 authors differ, he would be obliged to choose 
 some one as a standard, and make him the 
 guide to his practice, and, to some extent, 
 that would be acting upon his own judg- 
 ment. It often happens that a doctor's prac- 
 tice is better than that of the book of so- 
 called authority. 
 
 106. What is more, no two cases are ex- 
 actly alike, and so cannot be treated in the 
 same way. In medical practice, as time 
 goes on, new points and conditions arise and 
 are met, which cannot be brought under the 
 rules and precepts laid down in the books. 
 
MEDICAL WITNESS. 143 
 
 The practitioner will be under the necessity 
 of applying the broad and general prin- 
 ciples which lie at the foundation of the 
 science of medicine, — and he will have to 
 do this according to the dictates of his best 
 judgment. The difficulty here noted is some- 
 times carried over into medico-legal practice. 
 It cannot be settled by reference to authori- 
 ties. The expert must be an authority in 
 the premises, — somewhat as the Court is an 
 authority on the admission of evidence. The 
 expert may err, so may the Court. 
 
 107. I am clearly of the opinion that 
 the rigid adherence to the doctrines, rules, 
 and precepts found and taught in the so- 
 called standard medical and surgical books 
 that are paraded in our courts by experts 
 and counsel is, in some respects, against 
 sound public policy. When a doctor be- 
 comes a medical witness, and is under the 
 sanctity and obligation of an oath, must he 
 
144 SUGGESTIONS TO THE 
 
 sajthat a given book on medicine or surgery 
 is standard authority? Must lie be com- 
 pelled to accept tbe entire contents of such 
 a book, errors, mistakes, and imperfections, 
 with all that is sound and reliable ? Must 
 he follow, as it were blindly, its rules and 
 precepts in such a manner as to contradict 
 his own experience ? 
 
 108. It seems to me that a medical wit- 
 ness may contradict an author in the same 
 way and with the same force as he would 
 contradict another medical witness. Because 
 an author says one thing and a witness says 
 another does not prove that the author is 
 right and the medical witness wrong. Sup- 
 pose witness A. is asked if witness B. has a 
 good professional reputation. If he has, let 
 him say so. But that does not imply that 
 A. should adopt the opinions of B. The 
 opinions of A. on assumed facts that are 
 similar to the relevant and admitted facts 
 
MEDICAL WITNESS. 145 
 
 of the issue are wanted. He may no doubt 
 think very highly of witness B., but he 
 must testify for himself. Because I esteem 
 and respect another doctor does not oblige 
 me to practice or testify as he does. He 
 may justly claim the same respect for his 
 truthfulness, in every way, as I do. Why 
 should I move my conscience from my own 
 convictions upon those of another, even 
 if he has written a book ? I fail to see 
 why doctors have not a right to disagree 
 upon any subject whatever. I do not un- 
 derstand why their differences of opinion 
 should be the sport of men of sound sense. 
 I can see why narrow-minded men affect 
 merriment over the disagreement of doctors. 
 Who makes himself merry at the disagree- 
 ment of judges? He might be put under 
 arrest for contempt of court. Who makes 
 sport of the disagreement of a jury ? Who 
 is there that cares for the disagreements 
 
146 SUGGESTIONS TO THE 
 
 and wrangles and contentions of lawyers? 
 It is an old precept which throws suspicion 
 upon the testimony of witnesses who agree 
 exactly. 
 
 109. We may add the following points. 
 The facts and opinions expressed by an au- 
 thor in his book, if the words are read in 
 court, are in the nature of hearsay evidence. 
 The Court may not take the evidence of 
 fact from a stranger ; for the author is 
 absent, and may be dead. He is not, and 
 cannot be, a witness. He never knew any- 
 thing about the case in issue. If he were 
 in court he could not testify as to matters 
 of fact ; but if he were to give an opinion, 
 he would have to be cross-examined. Then 
 why should an opinion be taken from his 
 book, and the right of cross-examination 
 waived ? If the facts proven of the case in 
 issue could be shown to ^e true of the case 
 or cases related by an author, his opinion 
 
MEDICAL WITNESS. 147 
 
 might be admitted as a probable answer to a 
 properly constructed hypothetical question ; 
 and even that should have but little influ- 
 ence, and there might be doubt as to its 
 admissibility. 
 
 110. Again : new books are written from 
 time to time ; they differ from previous 
 books ; the books of to-day are better than 
 those of yesterday. This must be so, since 
 medicine is progressive. The book that was 
 an authority yesterday is in some respects 
 obsolete to-day : a better authority has arisen 
 in its place. It might then happen that an 
 injustice would be done. The rights of a 
 citizen might be imperiled by some one whom 
 he has never seen. He has a constitutional 
 right to be confronted in court by his ac- 
 cusers and their witnesses. Do not those 
 who testify against him stand in some 
 measure for his accusers ? Can, therefore, 
 the words of a man who is absent or dead, 
 
148 SUGGESTIONS TO THE 
 
 even though they are printed in a book, 
 be introduced to show that a litigant has not 
 a good case ? No doubt they can, for this 
 is a common rule of practice ; but how far 
 is this practice right and just ? 
 
 111. We may have a better understand- 
 ing of the question of surgical authority 
 from the following comparison. A law is a 
 rule of action, and is the same for all until 
 it is repealed. It is certain, and its force 
 is binding. Its true meaning has a control- 
 ling force. A case cited according to its 
 practical intent and working is an authority. 
 An authority of this kind is general in its 
 influence, and must be respected. In regard 
 to surgery, we may make the following 
 remarks : — 
 
 112. If a rule in surgery becomes as gen- 
 eral as a law of the land, then we may say 
 of it just what we have said in regard to 
 law, it is binding, it is authoritative ; and a 
 
MEDICAL WITNESS. 149 
 
 case treated according to it may be cited as 
 an authority, and have weight before the 
 Court, and exert an influence on the jury. 
 In so far as this point is concerned, it may 
 be proper to make citations from a reputable 
 surgical author. There is no doubt that this 
 practice is competent and admissible. But as 
 to points on which practical men and experts 
 differ, and there are many such points, it is 
 clear that there can be no authoritative rule. 
 In such cases a citation of authority may 
 bring peril to the just cause of a litigant. 
 It would be like citing a law, when there 
 were several different laws for the same kind 
 of offense. Suppose there was a law pro- 
 viding several different kinds of punishment 
 for the same crime. It is evident that such 
 a law would be inconsistent and unjust. So 
 inconsistency and injustice would follow the 
 citation of an authority when there were 
 other materially different authorities on the 
 
150 SUGGESTIONS TO THE 
 
 same surgical topic. In such a case we can 
 only be guided by the testimony of intel- 
 ligent experts. So it is evident that great 
 care and caution must be exercised in the 
 citation of surgical authorities in the trial 
 of cases, in order that injustice may not 
 result. 
 
 113. Sometimes counsel will read from a 
 reputable author an opinion or a statement 
 which is relevant to the issue of a trial, and 
 ask the expert if he agrees or disagrees with 
 it. The expert must answer this question, 
 just as he does all other questions, accord- 
 ing to the best of his ability. Inasmuch as 
 authors frequently differ on the same topic, 
 it is easy enough to find an opinion or state- 
 ment that will contradict the testimony of 
 an expert. It is plain that nothing less 
 than a full sentence or a full paragraph can 
 be read without doing violence to the mean- 
 ing of an author. The upright and mag- 
 
MEDICAL WITNESS. 151 
 
 nanimous attorney will not read a part for 
 the whole of an opinion or statement : he 
 will never mistake a comma for a period. 
 Should not the expert be allowed to read 
 the words of an author whose meaning he 
 is presumed to be competent to interpret ? 
 Once for all let it be said that the doctor 
 cannot always remember every word of an 
 author on a subject or topic. It seems to 
 me that he has the same legal right to read 
 a medical book as counsel or Court to read a 
 book on law. On what principle is an ex- 
 pert held to a higher standard of memory 
 than a judge or a lawyer ? I know of no 
 such principle, which can be called right or 
 just. Now as for myself, I do not hesitate 
 to differ, if need be, from the opinions and 
 the statements found in medical books. I 
 would willingly contradict an author if he 
 were in court, if he held an opinion different 
 from my own. His book could not overawe 
 
152 SUGGESTIONS TO THE 
 
 me and bring me to confusion, nor could he 
 himself. I only ask that books be estimated 
 truly at their exact value, and be assigned 
 to their right and proper place. 
 
 114. If the medical witness tells the truth, 
 it makes no difference to him where the ex- 
 aminer ceases to ask him questions. To be 
 sure, he is called upon to tell the whole 
 truth and nothing but the truth ; but he 
 does not conduct the case. It is his busi- 
 ness to answer the questions put by counsel. 
 All else is superfluous, for it is the preroga- 
 tive of counsel to ask questions. Now 
 what the witness tells is the truth ; and 
 what he is not permitted to tell is the truth 
 also ; but the truth, as has been said, agrees 
 with itself all round ; and the witness can 
 have no interest beyond telling the truth ; 
 if he tells the truth, he will be consistent 
 at the beginning, middle, and end of his 
 story, let the examiner rest when and where 
 he will. 
 
MEDICAL WITNESS. 153 
 
 115. The expert may be asked to explain 
 the meaning of scientific terms by the at- 
 tornej^, by the Court, or by a juryman. He 
 may have ah-eady explained them ; now he 
 is requested to explain them to the jury. 
 Let him not hesitate to do so, for it is his 
 duty and his business to make his testimony 
 clear and comprehensible. He must trans- 
 late the language of science into that of 
 every-day life. This he cannot do if he is 
 ignorant of the facts that underlie the sci- 
 entific words. For verbal knowledge is 
 only scientific ignorance ; words that are 
 incomprehensible will not enlighten a jury. 
 The lawyer is anxious to have the jury know 
 and understand the facts of the case, and 
 asks the expert to tell what he means ; if he 
 is competent, he can make his testimony 
 clear. 
 
 116. It may happen that a lawyer will ask 
 the same question a second time. This may 
 
154 SUGGESTIONS TO THE 
 
 occur for tliree reasons. It may be from 
 inadvertence ; it may be to make sure of the 
 answer ; it may be to confuse or annoy the 
 witness. When such a thing happens, the 
 witness may say that he has already answered 
 the question ; and if there is any doubt on 
 this point, it can be cleared up by an appeal 
 to the record. But if the Court and the 
 jury desire to hear the answer again, the wit- 
 ness will do well to repeat it. When the 
 question has been fully and clearly answered, 
 there is nothing to be gained by asking it 
 oyer again. In such a case the Court will 
 generally direct the examiner to proceed to 
 some other point. I have sometimes thought 
 that the advocate might desire to get dif- 
 ferent answers to the same question by per- 
 sistently repeating it, and in that way try to 
 discredit and confound the witness. In such 
 a case the witness is entitled to the reading 
 of his previous answer by the official stenog- 
 
MEDICAL WITNESS. 155 
 
 raplier. At any rate, the witnessr may an- 
 swer the question again, and then he may 
 say, That was substantially my previous 
 answer : it may not be the answer, word for 
 word, but it is my previous answer. 
 
 117. The advocate may be aggressive ; 
 he may try to bend the evidence in favor of 
 his client, for whom he is bound to do his 
 best, under all circumstances. But tbe doc- 
 tor is not an advocate. He must not be led 
 into making statements with a view to bene- 
 fit any one. He is the champion of truth 
 and the promoter of justice. While what 
 he says may be of great value to one or the 
 other litigant, this must not be his motive. 
 It is encouraging to see an expert stand 
 firmly on the rock of truth, never knowing 
 a personal interest, never being moved by 
 undue influence, no matter what the induce- 
 ment, the provocation, or the assault. Law- 
 yers, even when they are cross-examiners, 
 
156 SUGGESTIONS TO THE 
 
 have great respect for sucli a witness. They 
 know that opposing counsel cannot use him, 
 or shake his testimony. 
 
 118. When a medical witness is adverse 
 to answering questions in regard to relevant 
 matters about which he has knowledge, the 
 Court may decide that he is hostile, and per- 
 mit counsel to ask questions that are lead- 
 ing. Then the counsel proceeds like the 
 cross-examiner, and he cannot lead too much. 
 He rightly assumes the prerogative of being 
 severe and aggressive. This is a proper ex- 
 ception to the rules which govern the direct 
 examination. It is founded on public policy, 
 for it is better to compel a hostile witness to 
 tell the truth than it is to let the guilty go 
 unpunished, or let the innocent suffer. 
 
 119. When the advocate has to deal with 
 a witness who is partisan, prejudiced, offen- 
 sive, and hostile, he may be excused for 
 treating him with rigorous severity. He 
 
MEDICAL WITNESS. 157 
 
 may cross-examine him with all the skill he 
 possesses. He may dissect every fibre of 
 his motives. He may expose his bias, his 
 pretension, his presumption. He may dem- 
 onstrate his hostility ; he may make a specta- 
 cle of his animosity. All right-minded men 
 rejoice at the discomfiture which follows his 
 cross-examination; for he is an enemy of 
 public order and public policy. He has the 
 sympathy only of those who are like him in 
 their practices. It is a pity that there are 
 any such witnesses. Here, we may add, as 
 a high authority has said, "an advocate is 
 a warrior, and not an assassin." 
 
 120. We often hear of the license of coun- 
 sel in the treatment of medical witnesses. 
 In fact, the medical witness often complains 
 of the difficulties encountered in giving tes- 
 timony. He especially fears and dreads the 
 cross-examiner. In order that we may do 
 justice to both counsel and witness and come 
 
158 SUGGESTIONS TO THE 
 
 to a better understanding of their relations, 
 let us analyze the subject a little more in de- 
 tail. Now what is the duty of counsel ? He 
 speaks for his client, since his client cannot 
 speak for himself. It is his duty to defend 
 the rights and interests of another for whom 
 he speaks and acts. This is his business. He 
 must ward off an attack ; he must repel an 
 invasion ; he must protect his client from the 
 threats and menaces of an adversary. He 
 must use his best skill and exert all his pow- 
 ers to prevent his client from suffering an 
 injustice. He must leave nothing undone 
 to prove his innocence, to gain his acquittal, 
 to promote his interests, to maintain his 
 rights. In matters that are relevant to the 
 issue, he may search the depths of the hu- 
 man heart, he may probe the profoundest 
 feelings, he may traverse the ways of the 
 most devious intellect : he is like the skill- 
 ful surgeon, who inserts the knife and causes 
 pain, that life may continue. 
 
MEDICAL WITNESS. 159 
 
 121. The law intrusts the advocate with 
 extensive powers and with great liberty of 
 speech, such as in every-day life would not 
 be tolerated. In what he may do for his 
 client he is, as it were, only limited by his 
 own sense of duty ; and if he has a high 
 sense of duty, in his own field of work he is 
 supreme. In his search for truth, he must 
 not be reckless, nor rash, nor unreasonable, 
 nor unjust. If he goes beyond the law, and 
 if he violates the rules of admitting evidence, 
 he maybe admonished, reprimanded, or j)un- 
 ished by the Court. He must pursue his 
 work by methods that are legal and right 
 and just. He is not at liberty to seek after 
 truth by means that are illegal and wrong 
 and unjust. We all respect the magnani- 
 mous and upright advocate ; he is an honor 
 to his profession ; he is a terror to those 
 who do evil ; he is a hope to those who are 
 assailed and wronged ; he is a public bene- 
 factor and an ornament to society. 
 
160 SUGGESTIONS TO THE 
 
 122. The trial of a case proceeds upon 
 tlie theory that it must be decided on the 
 testimony that is introduced. The argu- 
 ment of counsel, the charge of the judge, 
 and the verdict of the jury cannot go be- 
 yond the testimony, the evidence. Justice 
 looks through the light of evidence, the 
 lantern of testimony, to find the result, 
 that is, the verdict. Anything outside of 
 this light must not affect the argument, the 
 charge, the verdict, for it is the evidence 
 that proves the issue. A trial also pro- 
 ceeds upon the theory that the prosecution 
 cannot affirm anything that is not true 
 against the defendant, the prisoner at the 
 bar. The counsel for the State stands upon 
 the highest moral and legal grounds, search- 
 ing to the best of his ability for the truth. 
 On the other hand, counsel for the defense, 
 in so far as he can, prevents the introduc- 
 tion of any testimony that will harm the 
 
MEDICAL WITNESS. 161 
 
 prisoner. He leaves out any fact or opin- 
 ion, unknown to the other side, which may 
 tend to the conviction of his client. In re- 
 gard to this practice, can we reason as 
 follows ? The prisoner at the bar has cora- 
 . mitted a grave crime ; he has been engaged 
 in the violation of the law ; he cannot be 
 made to testify against himself ; he is trying 
 to conceal everything that will weigh against 
 his case ; he has feelings and instincts that 
 impel hiui to avoid punishment ; and when 
 convicted and in prison, he will make every 
 effort to escape : such is his nature, such his 
 character. He hates truth and justice, hav- 
 ing associated himself with the Father of 
 Lies. 
 
 123. Yet the assumption is that he is in- 
 nocent until he is proved guilty. No man 
 is legally guilty before he has been declared 
 so in a properly constituted Court of Jus- 
 tice. The prisoner is represented by his at- 
 
162 SUGGESTIONS TO THE 
 
 torney to this extent ; every legal safeguard 
 is applied in liis defense, just as if he were 
 innocent ; the proceedings against him must 
 be strictly in accordance with law ; he must 
 be held innocent until he is convicted of 
 crime ; and his conviction must be because 
 the properly admitted evidence is against 
 him. His attorney does not represent him 
 as a criminal, but as an accused person, who 
 has a legal right to his defense. When he 
 is finally convicted, his attorney ceases to 
 represent him. Yet, if his attorney is con- 
 vinced that his client is innocent, he is 
 bound to apply all those legal remedies pro- 
 vided for the relief of men who have suf- 
 fered an injustice. If the criminal, or one 
 suspected of crime, who is yet a citizen, be- 
 fore his conviction, were not legally tried 
 and defended, who would be safe from the 
 accuser ? A citizen is innocent, and his at- 
 torney defends him and takes away from 
 
MEDICAL WITNESS. 163 
 
 him the opprobrium of crime ; a citizen is a 
 criminal, and his attorney sees to it that his 
 conviction rests only upon evidence which 
 fairly and justly proves him guilty. 
 
 124. Sometimes the cross-examiner tries 
 to intimidate a medical witness. He says : 
 Do you answer that on your oath ? Do you 
 swear to the truth of your statement? 
 Could you not be mistaken ? Are you sure 
 that you are right ? Now be careful in your 
 answers. Will you stake your professional 
 reputation on what you say ? Then he may 
 speak to the witness in a loud tone of voice. 
 He may gesticulate in a violent manner. 
 He may appear to be very angry with the 
 witness. Such methods can greatly impress 
 and confuse a timid witness, and impair 
 the value of his testimony. But a lawyer 
 who is a gentleman never descends from 
 the position of a magnanimous advocate, in 
 order that he may browbeat and intimidate 
 
164 SUGGESTIONS TO THE 
 
 a witness. He will lose his case sooner than 
 he will tarnish his honor or compromise the 
 dignity o£ his profession. Yet a witness 
 who becomes an advocate, a partisan, and a 
 prevaricator, deserves to be detected and 
 exposed. As we have said, the examiner 
 must not fail in his duty to his client. 
 
 125. Under all circumstances the medical 
 witness should be self-possessed. At every 
 point he should act the part of a gentleman. 
 Every man who loses his temper parts with 
 some of his self-respect. He who becomes 
 unreasonable and gives way to anger is 
 ever placed at a disadvantage. To be cool 
 and collected under trying circumstances 
 not only maintains self-respect, but it also 
 commands the respect of others. The in- 
 timidations of a demonstrative examiner are 
 entirely harmless when they fall upon the 
 shield of self-possession ; for good temper 
 and gentlemanly conduct are always protec- 
 
MEDICAL WITNESS. 165 
 
 tive. It is not what the advocate says to the 
 witness that gives character to his testimony, 
 but it is what the witness says and the way 
 he says it. The witness is always safe when 
 he is self-possessed and reasonable. The 
 advocate who fails in his attempt to intimi- 
 date a witness has placed himself and his 
 client at a disadvantage. Just so far as the 
 advocate loses the respect and confidence of 
 the jury, the medical witness improves in 
 the opinion and confidence of the twelve 
 good and true men who are to render the 
 verdict on the issue that is being tried be- 
 tween the parties at law. 
 
 126. According to the law and the prac- 
 tice of the courts, the medical expert is not 
 allowed to give an opinion directly on the 
 medical facts. This would be an invasion 
 of the duties of the jury. The way this 
 matter is managed is by hypothesis. The 
 proven medical facts are put together in 
 
166 SUGGESTIONS TO THE 
 
 their logical order, and are assumed to be 
 true of a supposed case, that is, one that 
 does not exist in fact, yet one that is the 
 same as the case at issue, and the opinion of 
 the expert is asked on it, and he may give 
 an opinion, if he can do so with reasonable 
 certainty. The real case, the one at issue, 
 must be left for the jury to decide. The 
 law gives the jury the sole power to render 
 a verdict. In so far as the medical facts 
 are concerned, the supposed case can be de- 
 cided by the medical expert. This gives 
 the jurymen a case to guide them in coming 
 to a conclusion in regard to the case at issue, 
 the case being tried before them. In gther 
 words, the expert cannot reason and draw 
 conclusions in regard to matters that per- 
 tain to the legal functions of a jury. But 
 in matters whereof the jurymen have not 
 experience and knowledge, and in which 
 they are not competent to reach a sound 
 
MEDICAL WITNESS. 167 
 
 conclusion, similar facts may be assumed, 
 such facts as have been proven, and on 
 them the expert may reason and give opin- 
 ions, in order to show the jurymen how to 
 deal with the medical facts cominof to liaht 
 during the trial. This 23ractice leaves the 
 jury the function of accepting or rejecting 
 the opinion expressed by the expert. 
 
 127. Let us reason in the followinof man- 
 ner. It is competent for the counsel of 
 each side to frame a hypothetical question 
 for the medical expert to answer. Suppose 
 one takes the facts as proven by the plain- 
 tiff's witnesses, and the other takes the facts 
 as proven by the defendant's witnesses. 
 Now if the evidence is substantially the 
 same on both sides, the expert will have no 
 difficulty in giving an opinion. His opinion 
 on one side will agree with that on the other, 
 for the facts are the same. But let us sup- 
 pose that the facts in evidence on the two 
 
168 SUGGESTIONS TO THE 
 
 sides of the issue are different. As the 
 proven facts differ, the hypothetical ques- 
 tions will differ, and so the opinions of the 
 expert will differ. The expert gives to the 
 defendant's counsel one opinion, and another 
 to the plaintiff's counsel. Now the expert 
 may not decline to answer either hypotheti- 
 cal question. He is bound to answer well 
 and truly, to the best of his ability, the ques- 
 tion that is framed on each series of facts 
 put in evidence. If the answers differ, that 
 cannot be any fault of his. The difficulty 
 is found in the facts admitted as evidence : 
 they differ. It is the province of the jury 
 to say which of the two sets of facts are 
 worthy of belief. If, for instance, it is de- 
 cided by the jury that the facts put in evi- 
 dence by the witnesses of the defendant are 
 incredible, the opinion of the expert on 
 such facts will come to nothing, no matter 
 how correct and sound such an opinion 
 
MEDICAL WITNESS. 169 
 
 would be, if these facts were true. The 
 assumed facts must resemble the facts in 
 evidence, in order that the opinion of the 
 expert may be relevant. A hypothetical 
 case different from the case in issue would 
 not call for a relevant opinion. The expert 
 must answer, to the best of his ability, any 
 hypothetical question asked by counsel and 
 admitted by the Court, however incomplete 
 and partial that question may be. 
 
 128. Again, let us reason in the following 
 manner. The hypothetical question must 
 contain assumed facts which are suggested 
 by the relevant facts of the medical evi- 
 dence. The answer to the hypothetical ques- 
 tion must be drawn from all the facts as- 
 sumed. The assumed facts must be complete 
 and full, and they must all be stated. If 
 these things are so, we may add, it must not 
 be left out of our account how we obtained 
 the medical facts. It is plain that the med- 
 
170 SUGGESTIONS TO THE 
 
 ical evidence, both of facts and opinions, 
 must come from medical witnesses. The 
 facts and opinions must be seen through 
 their statements. As they see the medical 
 facts and think about them, so they are pre- 
 sented to the Court and the jury. Is there 
 a mistake in the presentation of the facts ? 
 Then there must be a mistake in the hypo- 
 thetical question, that is, the error of fact 
 vitiates the truth of the hypothetical ques- 
 tion. It must then follow that justice will 
 not be done. So it must also follow that a 
 hypothetical question framed on the medical 
 evidence of one side only may fall short of 
 obtaining and promoting justice. Then we 
 may ask : Who shall frame the hypotheti- 
 cal question ? The doing of this requires 
 both a lawyer and a medical expert, or a 
 lawyer who is skilled in medicine. An ex- 
 pert who is versed in the rules for admitting 
 evidence is no doubt competent to frame a 
 
MEDICAL WITNESS. 171 
 
 hypothetical question. At any rate, it is 
 wise for counsel to consult the expert before 
 framing his hypothetical question, in order 
 that he may have the exact meaning and 
 bearing of the medical facts. 
 
 129. A medical expert may get into diffi- 
 culty by failing to make an exhaustive ex- 
 amination of the injuries of a case. Let 
 the cross-examiner ask the expert the follow- 
 ing questions. Did you find the right leg 
 of the plaintiff wasted ? Was this leg as 
 strong as the other? Did you apply the 
 tests to determine these facts? Now the ex- 
 pert did not know these facts, for he had 
 overlooked them, since he had not made the 
 examination. If the expert had overlooked 
 important facts, it would throw doubt on the 
 accuracy and reliability of the facts that he 
 actually observed and related. The value 
 of his testimony would be greatly impaired. 
 
 130. A difficult duty is imposed upon an 
 
172 SUGGESTIONS TO THE 
 
 expert when an examination is refused by 
 a litigant, or when a testator, being dead, 
 cannot be examined. In such a case, the 
 expert waits in court and hears the medical 
 testimony. Then he may go on the witness- 
 stand and explain the facts produced as evi- 
 dence. To illustrate how this works. Sup- 
 pose the medical witnesses who testify to the 
 facts, as they observed them, prove too 
 much. The duty of the expert is to point 
 out the inconsistency between the alleged 
 facts and the conclusions drawn from them. 
 If, for instance, a litigant claims through ex- 
 perts, that he has an incurable disease or in- 
 jury which will disable him for life ; and if 
 it can be shown, by the evidence of practi- 
 cal experts that such a disease or injury 
 would be almost necessarily fatal, and if the 
 evidence of the plaintiff's experts cannot 
 show any of the usual signs of such a seri- 
 ous disease or injury, there is a doubt as to 
 
MEDICAL WITNESS. 173 
 
 the value of their testimony at once raised : 
 indeed, their evidence, as any one can see, 
 proves too much, and plain common sense 
 will surely discredit it. 
 
 131. Take, for instance, the proven facts 
 as to what a testator said and did during the 
 last few years of his life. The question of 
 his competency to make a will has been 
 raised. The expert has never seen the tes- 
 tator. He asks : What did the testator say 
 and do during the last part of his life ? 
 Were his sayings and doings like those of 
 former times ? The witnesses testify that 
 what he said and did in former years were 
 different from what he said and did during 
 the time previous to his death. The expert 
 hears this testimony in regard to the testator 
 who had made his will after the changes in 
 his conversation and action. He must form 
 an opinion as to the soundness of the tes- 
 tator's mind, as to mental ability, or mental 
 
174 SUGGESTIONS TO THE 
 
 disability, and lie has only the testimony 
 of other witnesses to guide him. If what 
 they say is true, was the testator, when he 
 made his will, of sound mind, or not ? Was 
 he competent to make a will ? 
 
 132. Now suppose an expert has affirmed 
 that a prisoner who has committed murder 
 is insane, and suppose the cross-examiner 
 asks him for the reasons why he has come 
 to such an opinion. The expert cannot see 
 and examine the prisoner's brain, and if he 
 could, he might not find any change in its 
 structure. He can only observe, or he may 
 be told, what the prisoner says and does. 
 Now in this case, as well as in the previous 
 one, the difficulties of the expert may be 
 very great not only in the direct but also in 
 the cross examination. Let us try to find 
 out in what these difficulties consist. We 
 may reason as follows : — 
 
 133. The question of degree is, no doubt, 
 
MEDICAL WITNESS. 175 
 
 very Important. Suppose, for instance, a man 
 does not say or do anything rational at all ; 
 that he has gone altogether out of his mind ; 
 that he is in every way demented and crazy ; 
 that all he says and does is irrational ; that 
 everybody can see the change in him at once ; 
 — well, such a case is so plain that the expert 
 can have a very decided opinion and cannot 
 make any mistake, and he can give sound 
 reasons for his conclusions : and these rea- 
 sons cannot be successfully contradicted by 
 any one, nor can their effect and force be 
 diminished by the cross-examination. 
 
 134. Once more, suppose that a man is 
 partly sane and partly insane, that in his 
 sayings and doings he mixes up what is 
 rational and what is irrational. In such a 
 case it is very difficult to tell exactly where 
 the rational ends and where the irrational 
 begins. Such a man is like one partly in- 
 toxicated : for a few moments he staggers ; 
 
176 SUGGESTIONS TO THE 
 
 his will, for the time being, has become 
 somewhat disabled ; then he makes a su- 
 preme effort and walks along almost in a 
 steady manner ; again, he goes first to the 
 right and then to the left; once more he 
 assumes his self-control ; and so he goes on 
 until he recovers. Now shall we say that 
 one man was drunk, and that the other was 
 insane ? Ought we not to say that one was 
 partly insane, and that the other was partly 
 drunk? In some respects the cases are 
 parallel, and in each the disability is in- 
 complete. 
 
 135. To illustrate farther : suppose a man 
 is lame, and that he is not lame enough to 
 prevent him from walking; he limps, and 
 has some disability ; his lameness interferes 
 with his business ; and it may be very diffi- 
 cult to estimate the extent of his disability. 
 Now suppose a man is unsound in his head ; 
 let us say, figuratively, that he is lame in 
 
MEDICAL WITNESS. Ill 
 
 his brain, and that he is not so lame as to 
 prevent him from reasoning, to some ex- 
 tent ; his brain limps, as it were, and has 
 some disability. This kind of lameness in- 
 terferes with the man's business, as well as 
 his social intercourse ; and it is very diffi- 
 cult to estimate the extent of his disability. 
 136. In the first case, the expert says 
 that the lame man is disabled about one 
 fourth. He means by this that the working- 
 capacity of the man is about three fourths 
 of what it was before the man went lame. 
 In the second case, the expert says that the 
 man who is lame in his brain is insane. He 
 does not speak of mental disability. He 
 does not say that the insane man has about 
 one fourth disability, for instance. He is 
 not looking in that direction. Indeed, he 
 does not consider the question of partial 
 disability when the brain is out of order, — 
 he wants to make out the man insane. The 
 
17B SUGGESTIONS TO THE 
 
 question put to the expert is, Is the man 
 insane ? If he is insane, he is not respon- 
 sible ; but he is responsible, if he is not in- 
 sane. Now every reasonable man knows 
 that there are degrees of insanity, that there 
 are degrees of lameness, that there are de- 
 grees of disability, that there are degrees 
 of responsibility. The real question is. 
 How much can a man do ? or, How much 
 can a man pay ? 
 
 137. If these things are so, where does 
 the real difficulty lie ? Does it not lie in 
 the facts and their presentation ? Some of 
 tbe facts show mental disability ; the rest of 
 them show mental consistency. Let us see 
 the effect of the difficulty on a case at issue, 
 when the hypothetical questions are framed 
 and answered. Assumed facts, like all the 
 irrational sayings and doings of a prisoner, 
 are put together in the form of a hypothet- 
 ical question, and the expert's answer is to 
 
MEDICAL WITNESS. 179 
 
 the effect that the supposed prisoner is in 
 sane. So much for one side of the evidence. 
 Then, on the other side, assumed facts, like 
 all the rational sayings and doings of the 
 prisoner, are put together in the form of a 
 hypothetical question, and the expert's an- 
 swer is to the effect that the supposed pris- 
 oner is sane. Each hypothetical question is 
 correct as far as it goes, but it is incom- 
 plete ; it does not embody all the facts. 
 Each answer given by the expert is correct, 
 and could not have been given in any other 
 way; and both answers perhaps cover the 
 case. The simple fact is, the prisoner is 
 partly sane and partly insane. But it is not 
 the fault of the expert that he must answer 
 a one-sided hypothetical question^ for he 
 does not frame and ask the question. It is 
 only his business to answer the question. 
 He ought not to be charged with inconsis- 
 tency when he has given the only answer 
 
180 SUGGESTIONS TO THE 
 
 that can be given. The inconsistency, as 
 well as the difficulty, lies in taking and pre- 
 senting part of the facts in evidence, for the 
 purpose of framing a hypothetical question. 
 138. Now, let us reason in the following 
 manner : is it for the medical jurist to de- 
 termine the question, where, in a case of 
 mental disability, the responsibility begins 
 and ends ? When does a man become like 
 the elements, in which physical forces pre- 
 vail ? When does he lose his moral quali- 
 ties and become irresponsible ? When does 
 he lose his self-control? When does the 
 circle of sensation, sense, and voluntary 
 motion become so disordered that it is im- 
 possible for him to perform rational actions ? 
 If the astronomer says, I do not hnow^ he 
 is praised for being highly scientific. But 
 if the medical jurist says, / do not hnow^ 
 he is called a Jiumhug. Now which is the 
 more difficult, to penetrate the secrets of 
 
MEDICAL WITNESS. 181 
 
 the stars, or to unravel the mysteries of 
 the human mind ? 
 
 139. But then we have not yet solved the 
 difficulty. We have made the contention 
 that the expert ought to give evidence of 
 the man's insanity. We have affirmed that 
 the expert alone is competent to say that 
 the man is insane. We have done this 
 much in the same way that we have dealt 
 with a lame man. We have said, This man 
 is lame. Then we seem to feel that we have 
 triumphed over all obstacles in our field of 
 special work. Have we not said that the 
 man is lame ? Who can contradict us ? 
 And have we not said that the man is in- 
 sane ? Who can contradict that ? Now it 
 looks as if the question were settled. But 
 is it settled ? Do not the Court and the 
 jury want to know how lame the man is? 
 The question is, Will you rate his disabil- 
 ity ? How much work can the man do ? 
 
182 SUGGESTIONS TO THE 
 
 On the otlier hand, the expert says the man 
 is insane ? But what of it ? Where is the 
 rating of his disability? Then it is a ques- 
 tion of what is to be done with him. To be 
 sure, his insanity has been tested, or rather 
 the appropriate tests have been applied, and 
 according to them he is not of sound mind. 
 But still we are at fault. Where in all that 
 immeasurable distance from the raving ma- 
 niac to the harmless crank, from the incura- 
 ble idiot to the person of weak mind, — 
 where shall we find him, where shall we 
 place the insane ? Can you tell us that, Mr. 
 Expert? If you can, you are the man we 
 want. For we do not know where the man 
 is. You have told us that he is somewhere, 
 wandering in this unknown territory. We 
 admit that the man has lost his way. But 
 we want to know where he is, so that we may 
 know what to do with him. Is there any 
 test for this? Let me ask you. Has this 
 
MEDICAL WITNESS. 183 
 
 man any conscience ? Do his faculties and 
 powers work together ? Do they cooperate ? 
 Do they tell him what to do ? Now, Mr. 
 Expert, you know that some insane persons 
 can reason ; yes, and they can reason quite 
 well, too. The question is as to the action 
 of the insane. Does the man who is insane 
 in part know anything about his own ac- 
 tions ? Now what does the Court say ? In 
 effect, the Court says : Mr. Expert, you are 
 competent to tell us that the man is insane ; 
 we take your opinion on this point, and 
 admit it as evidence ; but we have another 
 test, different from your test ; we want to 
 know what to do with this man ; as to what 
 we may do with him is none of your affair ; 
 as we have admitted your competency to 
 say that he is insane, we will take your opin- 
 ion on another professional point; surely 
 you must know how insane the man is ; you 
 must know where he wanders in the field 
 
184 SUGGESTIONS TO THE 
 
 of disorder ; what we may do with hi in de- 
 pends on his responsibility ; and this is a 
 matter which belongs to us and our jury ; 
 we apply our test with your aid, to be sure ; 
 can you tell us if the man knew that he was 
 doing wrong when he committed the crime 
 with which he is charged? Has he con- 
 science enough left to discriminate between 
 right and wrong, as applied to his own acts ? 
 Is his conscience disabled ? Is he suffering 
 from mental disability? Can you tell the 
 jury what the extent of this disability is? 
 If you cannot, you need not answer. If 
 you can, you may say, with reasonable cer- 
 tainty, how much the man is disabled as to 
 his capacity of knowing if he did right or 
 wrong. Or we will frame a hypothetical 
 question, assuming facts like all the medical 
 facts, and assuming them of a hypothetical 
 case, and let you answer it, if you can, and 
 this question will be. Did the man know if 
 he was doing right or wrong ? 
 
MEDICAL WITNESS. 185 
 
 140. In order to throw more light upon a 
 difficult subject, let us relate the following 
 case. A man has the idea that some one has 
 done him a great injury or wrong ; he feels 
 in dread of bodily harm from somebody ; 
 the thought that he is in peril has taken 
 possession of him ; he suffers from illusions 
 and hallucinations, some of which he can- 
 not correct ; he has delusions that pursue 
 him at every point of his troubled life ; he 
 is in fear, and connects somebody with his 
 sufferings ; he hears voices which command 
 him to kill somebody : all these things go 
 on from day to day, and portend the exist- 
 ence of a disordered mind ; under the stress 
 and strain of long-standing disorder he takes 
 life, and it may be that of his best and most 
 intimate friend. Yet this man had his lucid 
 moments : then he could talk and reason, 
 yes, he could reason well, and on many im- 
 portant subjects, such as come up for consid- 
 
186 SUGGESTIONS TO TEE 
 
 eration in e very-day life ; he could tell the 
 dijBference between right and wrong, and 
 weigh the meaning and the import of a 
 great variety of actions ; but he was pur- 
 sued, as it were, by the vagaries of sensa- 
 tion and by the errors of sense, until his 
 conduct culminated in a nameless offense : 
 shall we call it a crime ? Or is it such a 
 mixture of good and evil as to confound 
 human justice ? Or rather, is it such a 
 mixture of right and wrong as to make it 
 impossible for any man to say whether the 
 offender is responsible or not? Would it 
 not be just to have different degrees of 
 punishment for different degrees of crimi- 
 nality ? 
 
 141. A competent observer writes : " I 
 can produce any day a hundred lunatics, 
 selected from our various asylums, who, if 
 they were placed in any parlor or office and 
 engaged in a general conversation, would no 
 
MEDICAL WITNESS. 187 
 
 more reveal their insanity necessarily than 
 they would their religious convictions or 
 their parentage. If you were asked to state 
 under oath what your opinion on such per- 
 sons' insanity was, you would feel almost 
 ashamed to doubt it for fear of casting im- 
 putation on your own. Yet these people are 
 lunatics and need hospital treatment. You 
 think they are well because they are not in 
 an actual paroxysm of their malady, but 
 they are just as much within its grasp as a 
 man with tertian ague is within the grasp of 
 his disease on his well days. Insanity, like 
 all the neuroses, is characterized by inter- 
 mittent exacerbations, and while in its in- 
 tervals its victims may seem perfectly re- 
 stored, to the eyes of a casual observer, 
 experts know but too well the unreliability 
 of any opinion based on a personal exami- 
 nation, when not accompanied by a complete 
 history of the patient's life." It appears, 
 
188 SUGGESTIONS TO THE 
 
 then, that we meet with great difficulty, at 
 times, in the determination of two ques- 
 tions : Is the prisoner insane ? What is the 
 degree of his insanity ? 
 
 142. What is the test of responsibility in 
 a case of insanity ? To what point shall our 
 inquiry be directed ? Where shall we look, 
 if not to the knowledge and the conscience ? 
 We must, indeed, look to the conscious 
 knowledge that we have of our own acts, in 
 every degree of health and impairment of 
 our faculties. Admit that the defendant 
 has an insane delusion. Can he correct this 
 delusion ? If he can, then he is responsible. 
 Does his insane delusion persist as a reality 
 to him? Then he is not responsible. Did 
 he know that the act which he performed 
 was against the law of the land, that it was 
 wrong? He is then responsible. Has he 
 forgotten the difference between right and 
 wrong, so that he is like the blind man who 
 
MEDICAL WITNESS. 189 
 
 cannot see ? Then, indeed, he would be 
 irresponsible. 
 
 143. The uncertainty of verdicts in the 
 trial of cases in whicb insanity is a relevant 
 fact of evidence deserves some suggestion. 
 Let us ask, What is the cause of this uncer- 
 tainty ? In what does it consist ? We may 
 have wise and competent judges, learned 
 and able advocates, experienced and skillful 
 medical witnesses, intelligent and honest 
 jurors, so that in trials of another kind we 
 obtain verdicts which are, in the main, rea- 
 sonable and satisfactory ; but let the element 
 of insanity come into a trial and we are apt 
 to distrust the soundness of the verdict, as 
 well as the probity of the judicial decisions, 
 and at the same time we impugn tbe motives 
 of the advocate, as well as the qualifications 
 of the expert. 
 
 144. Why do we sometimes feel that the 
 innocent have been punished and that the 
 
190 SUGGESTIONS TO THE 
 
 guilty have gone free ? It is because the 
 sane criminal has been proven to be insane, 
 has been proven not to know the difference 
 between right and wrong, thus taking away 
 his responsibility; and because the insane 
 criminal has been proven to be sane, thus 
 making him responsible. The wrong man 
 has been hung ; the wrong man has been set 
 free. In such a case, it would seem as if 
 common sense came to our aid, and we get 
 an idea that something which is unjust has 
 been done. We cannot adjust to our sense 
 of right the fact that a man v/ho is insane 
 has been hung, and our moral sense is out- 
 raged when the wrongdoer escapes merited 
 punishment, under the plea of insanity. 
 Seeing that these things are so, we learn to 
 distrust the validity of a verdict which has 
 been reached in a trial, where testimony has 
 been introduced to prove or disprove the 
 existence of insanity in a defendant who 
 is accused of a grave crime. 
 
MEDICAL WITNESS. 191 
 
 145. Let us see if clefiniDg insanity will 
 help us to any great extent. To say that 
 insanity " is the state of being insane," " is 
 reasoning correctly from false premises," 
 " is a lesion of the intellectual faculties," 
 "is the loss of the faculty of volition," "is 
 a disorder of the power of comparison or 
 judgment," " is the loss of the faculty of 
 attention," " is a lesion of the association 
 of ideas," or, " is a derangement of the men- 
 tal faculties," does not make the subject 
 clear. It is evidently very difficult, if not 
 impossible, to frame a definition that will 
 accurately index and describe a subject so 
 vast, so complex, so obscure, as this one is, 
 which relates in so many ways to all we 
 know and all we do not know in regard to 
 the brain and its functions. The difficulty 
 of defining, as well as the numerous defini- 
 tions given, points to the intrinsic difficulty 
 of the subject itself. Let us quote Dr. Buck- 
 
192 SUGGESTIONS TO THE 
 
 ham's definition. Insanity is " a diseased 
 or disordered condition or malformation of 
 physical organs through which the mind re- 
 ceives impressions, or manifests its opera- 
 tions, by which the will and judgment are 
 impaired and the conduct rendered irra- 
 tional." And now we may add our defini- 
 tion : Insanity is a disorder of the structure 
 or function of the brain accompanied by im- 
 pairment of the will, delusion of the judg- 
 ment, derangement of the reason, and per- 
 version of the affections, — followed by 
 mental disability and irrational conduct. 
 
 146. It would appear that we do not 
 know all about the brain and its functions ; 
 that we cannot conceive altogether what the 
 mind is ; that we cannot explain how the 
 will, the judgment, and the reason are con- 
 nected with sensation, sense, and voluntary 
 motion ; and that we are met with difficulties 
 we cannot solve. While it may, perhaps, be 
 
MEDICAL WITNESS. 193 
 
 true that all we do not know in regard to 
 the brain and its functions is as much as 
 all we do know ; it must also be true that 
 men who have given a life to the study of 
 this subject know more about it than those 
 who have given it little attention and less 
 thought ; and so it must be that experts 
 know more about the insane deviations of 
 will, judgment, affection, reason, and con- 
 duct, than judges, advocates, jurors, or gen- 
 eral practitioners. That is, the best in- 
 formed know little enough about insanity, 
 while others may not be expected to know 
 everything about it. 
 
 147. It then amounts to this : we cannot 
 understand "all the workings of the human 
 mind in its normal conditions and relations ; 
 so we cannot well understand and explain 
 the insane workings of the same mind when 
 it is affected and disturbed by disease or 
 disorder of the physical structure through 
 
194 SUGGESTIONS TO THE} 
 
 which it is manifested. The following illus- 
 trations will doubtless help us. Once I said 
 to a gentleman that I did not know if a pa- 
 tient who was very ill would recover or not ; 
 it was his brother, and he replied, " You 
 ought to know, you are a doctor." Then I 
 asked him, he being a broker, if he could 
 tell me if a certain stock would rise in price 
 on the morrow, when he said, " I do not 
 know." To this I replied, "You ought to 
 know, you are a broker." Once a certain 
 judge said, " Expert testimony is not only 
 of no value, but it is worse than that." 
 Then the expert might have replied : " May 
 not many of your decisions be overruled by 
 the Court of Appeals ? " Evils are never 
 cured by animadversion. 
 
 148. The limitations of special science, as 
 well as the imperfections of human know- 
 ledge, meet us everywhere. In some re- 
 spects these imperfections and limitations 
 
MEDICAL WITNESS. 195 
 
 are without remedy. Who has told us all 
 about the nature of good and evil ? Who has 
 drawn the line of demarcation between what 
 is right and wrong ? Who has given us a 
 complete standard of responsibility, even in 
 a trial of a case of insanity ? The judge 
 knows the law ; the advocate searches for 
 the evidence ; the jury reasons from the evi- 
 dence to the verdict. But the difficulty lies 
 in the very uncertainty of the evidence ; and 
 the evidence is the insanity in some degree 
 of a defendant. The expert is better quali- 
 fied to find and produce the evidence than 
 judges, advocates, or jurors. His failure to 
 find and produce it ought not to subject him 
 to animadversion and contempt. 
 
 149. Again we say, The question of tes- 
 timony is one of fact, fact relevant to the 
 issue, — the issue as to the guilt or innocence 
 of the defendant. The facts are medical, 
 and they are for the expert to find out and 
 
196 SUGGESTIONS TO THE 
 
 present. First, is the brain diseased or dis- 
 ordered ? Second, are its functions im- 
 paired ? Take a surgical case : is there 
 damage to the structure, say bone ? Is there 
 a certain impairment of use ? Then there is 
 a fracture. Who testifies to this ? Surely 
 the surgeon does. In the case of the dam- 
 aged and impaired brain, accompanied by 
 special signs and symptoms, there is insan- 
 ity. Who testifies to this ? Surely the ex- 
 pert does. The signs and symptoms are 
 matters of fact relevant to the diagnosis of 
 insanity, which is also a fact of evidence 
 relevant to the issue. The question is, Is 
 the defendant insane ? The expert deter- 
 mines the fact. The law wants to know 
 the degree of his insanity. It wants to 
 know the extent of the disability. The test 
 to apply is. Has he sense enough to know 
 if he is doing right or wrong? In one 
 trial, the jury believe the litigant has a 
 
MEDICAL WITNESS. 197 
 
 fracture because the surgical expert says so. 
 In another trial, the jury believe the defend- 
 ant is insane because the " insanity " expert 
 so testifies. In one case, the surgeon rates 
 the physical disability ; in the other case, the 
 neurologist rates' the mental disability. Then 
 the jury can award damages, or it can give 
 freedom. 
 
 150. Yet it is true that each juryman 
 knows something about human conduct. He 
 has been living all his life among other peo- 
 ple, and knows perfectly well how they act. 
 He has a pretty good opinion as to the 
 standard of conduct, which is orderly and 
 reasonable. He may not have been in per- 
 sonal contact with insane persons, and yet 
 he knows when an individual acts in a 
 strange manner, doing harm to others and 
 himself. He must come to some conclusion, 
 under such circumstances. But he is not 
 skilled in those signs and symptoms which 
 
198 SUGGESTIONS TO THE 
 
 are so many proofs of the existence of in- 
 sanity in every degree, from the least to the 
 greatest. It is just in these points that the 
 skilled expert is the most competent to in- 
 vestigate and report. It is the duty of the 
 expert to make a diagram of insanity. 
 
 151. There are two points of special diffi- 
 culty in the examination of a defendant 
 who claims, through his attorney, that he is 
 insane. One relates to the extent of his 
 disability. The other refers to simulation. 
 Does the defendant pretend to be insane, 
 when he is sane, and only wicked? Does 
 he make the plea of insanity in order that 
 he may escape the legal consequences of his 
 crime ? The same points of difficulty have 
 already been considered in regard to injuries. 
 Does the litigant pretend to be lame ? Does 
 he exaggerate the lameness that he has? 
 Does the defendant pretend to be crazy ? 
 Does he exaggerate his partial insanity? 
 
MEDICAL WITNESS. 199 
 
 These are difficult and momentous ques- 
 tions, which require the most consummate 
 ability and skill to solve, and which are 
 not infrequently solved unrighteously and 
 unjustly. 
 
 152. Now what are the difficulties which 
 lead to uncertain verdicts in trials in which 
 insanity is made a relevant issue ? Let us 
 epitomize them as briefly as possible. Our 
 best informed experts, while they know all 
 that has been found out in res"ard to insan- 
 ity, do not yet know everything that is to be 
 known ; indeed, there are many undiscov- 
 ered regions and unexplored corners of the 
 human mind. In this matter which lies at 
 the basis of relevant fact, we may have the 
 imperfections of science and the limitations 
 of human knowledge. So that, in many 
 instances, those who know most, and whose 
 opinions are most trustworthy, are not al- 
 ways certain of being right. This uncer- 
 
200 SUGGESTIONS TO THE 
 
 taintj as to the best science appears to be 
 the root of the evils of the insanity trial. 
 Then if the doctor who has had no experi- 
 ence with insanity is admitted as a witness 
 by the Court to testify more to his igno- 
 rance than to anything else, a material 
 element of uncertainty is added to the in- 
 superable limitations of science. At last 
 comes the advocate, with his view of the 
 case, searching for exact knowledge, put- 
 ting a part for the whole, investigating a 
 subject about which he is intrinsically igno- 
 rant, testing the fact of insanity with a hy- 
 pothesis in the form of a question ; and 
 so he brings a new element of uncertainty 
 into a case that set out with a grave diffi- 
 culty. In fine, the multitudinous diversity 
 of judicial opinions which nobody can har- 
 monize is obtruded upon our attention, sup- 
 plementing in the nsfost astonishing manner 
 the already accumulated uncertainties of the 
 
MEDICAL WITNESS. 201 
 
 insanity trial. Who can wonder that jurors 
 are bewildered, and that verdicts are uncer- 
 tain, under the influence of such circum- 
 stances ? It is neither fair, manly, nor just 
 to unload the entire mass of opprobrium 
 upon the poor expert. 
 
 153. Let me say a few more words in 
 regard to the legal responsibility of the sur- 
 geon. I am induced to do this, because the 
 subject is ever coming up in society, in prac- 
 tice, in the courts. It is of great interest, 
 and of leading importance. The subject 
 contains two questions which we cannot ig- 
 nore. They are. What can we do for our 
 patients? Are our interests in constant 
 peril ? I am the more inclined to look 
 farther into these questions, because what I 
 say may help to define the territory of pos- 
 sible work, so that those who seek our aid 
 may not expect too much, and so that we 
 may try to do our work in the best way 
 we can. 
 
202 SUGGESTIONS TO THE 
 
 154. At the outset we may say, It is just 
 and right to hold the surgeon to the full 
 measure of his responsibility. That is what 
 we do in regard to other men. The surgeon 
 may not neglect to employ the skill that he 
 has, even though it is above that which is 
 ordinary. As has been already said, this is 
 a question of duty. To follow this higher 
 standard need not interfere with the right 
 of the surgeon to be governed by the rule 
 of law which requires the employment of 
 ordinary skill. 
 
 155. But why should the surgeon have 
 too high a standard of responsibility ? Why 
 should patients assume that surgeons have 
 extraordinary skill ? There is no reason 
 for this assumption. Why does the sur- 
 geon pretend to have knowledge and skill 
 above that which is possible ? It is a 
 strange fact that the surgeon does this 
 sometimes. Why should the advocate, or 
 
MEDICAL WITNESS. 203 
 
 the judge, or the jury, presume to require 
 the surgeon to have attainments in his sci- 
 ence and in his art which are beyond the 
 reach of the wisest and the most experi- 
 enced ? I have sometimes thought that the 
 advocate does not comprehend, the judge 
 does not understand, and the jury does not 
 know that the profession of medicine and 
 surgery is limiteil in what it can do, that 
 there lies beyond its benefactions a great 
 territory of impossibilities. Strange as it 
 may seem to say so, there are many things 
 that we do not understand, and there are 
 many things that we cannot do. So we may 
 try in every possible way to make plain the 
 boundary line between that which is possible 
 and that which is impossible in practice. 
 This line runs through the territory of diag- 
 nosis and treatment. 
 
 156. In the first place, we have the ques- 
 tion of diagnosis. This is a question that is 
 
204 SUGGESTIONS TO THE 
 
 ever coming up, and one that ever returns 
 to vex the surgeon, let him turn whitherso- 
 ever he will. In many cases, perhaps the 
 greater number, he can form correct opin- 
 ions as to matters of fact, — he can make a 
 diagnosis. But there are cases in which 
 uncertainty is present and in which doubt 
 remains. So the surgeon may be led to an 
 erroneous conclusion, even^when he does the 
 best he can. The following cases will illus- 
 trate the bearings of this important point. 
 A woman about fifty years of age fell on 
 her right hip, and was so much injured that 
 she could not get up. She was seen soon 
 after the accident by two surgeons of skill 
 and reputation. They made a diagnosis of 
 dislocation of the thigh-bone, and failed to 
 make a reduction after seteral attempts. 
 This case was one of simple fracture of the 
 neck of the thigh-bone. Let me say that I 
 have seen such a mistake made more than 
 
MEDICAL WITNESS. 205 
 
 once by surgeons who practice with more 
 than ordinary skill. The case of a woman 
 who fell from a step-ladder some three or 
 four feet, and came down on her left hip, is 
 one of interest in this connection. She was 
 examined by a competent surgeon, who 
 applied all the ordinary tests in making a 
 diagnosis. The surgeon came to the con- 
 clusion that she had only a severe contusion 
 of the hip. In a few days, he encouraged 
 her to get up and walk about. Soon after, 
 she got out of bed, and while trying to walk, 
 the neck of the thigh-bone suddenly gave 
 way, when she fell upon the floor and was 
 made an incurable cripple. An impacted 
 fracture of the neck of the thigh-bone had 
 been mistaken for a contusion of the hip. 
 
 157. In another case we have the follow- 
 ing evidence. A strong man was thrown 
 from his wagon and came to the ground on 
 his right shoulder. A surgeon of experi- 
 
206 SUGGESTIONS TO THE 
 
 ence was sent for, and after a careful ex- 
 amination he told his patient that he was 
 suffering from a contusion. In a few days, 
 the surgeon made another examination, and 
 had no difficulty in finding a dislocation of 
 the humerus, for the swelling had for the 
 most part disappeared. He reduced the 
 bone to its socket, and the patient recovered 
 with a useful limb. A suit for malpractice 
 was instituted. Two experienced surgeons 
 testified that at times it was impossible for 
 the most expert to make a diagnosis of an 
 injury to the shoulder. The verdict was for 
 the defendant. 
 
 158. The following case is of interest. 
 A laborer became intoxicated, and fell on 
 his left shoulder. He was seen by a sur- 
 geon, who made a diagnosis of dislocation 
 of the humerus, and, as he supposed, re- 
 duced the bone. Some four weeks after 
 the accident, it was evident that the patient 
 
MEDICAL WITNESS. 207 
 
 had a longitudinal fracture of the upper 
 end of the humerus. The signs of this in- 
 jury are somewhat like those of a disloca- 
 tion of the humerus. Now it was not cer- 
 tain that there had been a dislocation. And 
 at the time of the accident, on account of 
 the extensive swelling, the fracture could 
 not surely have been made out ; and it 
 would not have been good practice to neglect 
 an attempt at reduction. As often happens 
 in these cases, a complete cure did not 
 result. 
 
 159. So it appears that the surgeon, from 
 time to time, meets with cases which present 
 great difficulties in the way of making a 
 diagnosis. That is to say, there are cases 
 whose nature, conditions, and relations can- 
 not be traced and determined with scientific 
 accuracy by the most experienced. We 
 have not yet found the expert, in any sci- 
 ence or art, who knows all things, even in 
 
208 SUGGESTIONS TO THE 
 
 the narrow circle in whicli lie may perhaps 
 boast of his experience. Nor do we believe 
 such an expert will ever be found, for this 
 would be contrary to human experience. I 
 know it is not easy for the expert to say in 
 plain words, / do not hnow. Yet at times 
 he had better say so, because, as matter of 
 fact, it is true. It would be far better to 
 say so than it would be to say what is not 
 true in order to conceal an ignorance we 
 cannot overcome. 
 
 160. Where does the surgeon's responsi- 
 bility begin ? In what direction does it go ? 
 Where does it end ? I am not now speaking 
 of the naked fact of ordinary skill. It is 
 important to find out what ordinary skill 
 means. The practical relation exists be- 
 tween the surgeon and the patient : one has 
 been injured ; the other tries to give relief. 
 The relation implies a civil contract. The 
 surgeon undertakes to do something for 
 
MEDICAL WITNESS. 209 
 
 his patient. Let us suppose two cases. A 
 surgeon agrees to repair a broken limb, a 
 broken bone. Is he not bound to do it? 
 He may not have taken into account the fact 
 that the limb cannot be repaired, yet he has 
 agreed to make such repair. Has he, in- 
 deed, assumed a responsibility that he can- 
 not meet? Has he promised to do some- 
 thing that cannot be done ? Is he like the 
 merchant who has agreed to deliver goods 
 when he cannot get them ? Again, a sur- 
 geon agrees to use ordinary skill in an at- 
 tempt to bring about repair of a broken 
 bone. He does not go beyond this simple 
 agreement. Yet he may use his best skill. 
 If the bone can be repaired, he repairs it ; 
 if it cannot be repaired, he does the best he 
 can with it. He indeed meets just the re- 
 sponsibility that he assumes. In many cases 
 he may not possibly know beforehand what 
 result can be obtained. He is not a war- 
 
210 suggestion;^ to the 
 
 rantor of cures ; he only agrees to use and 
 apply ordinary skill, and when he has done 
 this, the result must take care of itself. For 
 in many cases of disease and injury so many 
 factors may arise that the result will be dif- 
 ferent from anything that can be seen or 
 known at the outset of the treatment. Over 
 and over again, we repeat, the surgeon ap- 
 plies the ordinary rules of his art in a dili- 
 gent and careful manner, and the result 
 must be such as can be obtained under the 
 circumstances. 
 
 161. Is it not, then, frequently the duty 
 of the surgeon to say to his patient : I can- 
 not make your limb as good as it was before 
 the injury, yet I will use all the skill I have 
 in treating it ; after I have done my best, 
 there will be some deformity and some dis- 
 ability ? These words will express the im- 
 port of a proper and reasonable contract 
 between the surgeon and his patient. It 
 
MEDICAL WITNESS. 211 
 
 will involve the true iiieasure of the sur- 
 geon's responsibility, and he cannot rightly 
 assure anything more. If he does, perhaps 
 he may be held to what his promise implies. 
 He might be in the same position as the 
 merchant who agrees to deliver a quantity 
 of goods on a certain day, and at a certain 
 price. Failure to fulfill the agreement might 
 be followed by loss and damage. The mer- 
 chant would have to pay ; and the surgeon 
 would be liable in so far as there is an 
 agreement to perform work and accomplish 
 results. He must not promise more than he 
 can perform. 
 
 162. It may seem humiliating to acknow- 
 ledge the limitations of our science and our 
 art, but yet it is sound both in practice and 
 in law. So it is that the surgeon, as far as 
 he can, ought to know his professional limi- 
 tations, and make no promises that will go 
 beyond them. To illustrate. A patient 
 
212 SUGGESTIONS TO THE 
 
 sixty years of age fell on lier left hand, 
 fractured the lower end of the radius, and 
 severely sprained the wrist. She was 
 treated by a surgeon of reputation and 
 ability; in an unguarded moment, he prom- 
 ised to cure his patient. As sometimes hap- 
 pens in such cases, the result involved much 
 deformity and marked disability. This 
 patient came to consult me in regard to her 
 case. I told her that the treatment had 
 been good, and that she ought not to com- 
 plain, even if the deformity and the disa- 
 bility were permanent, since such injuries, 
 even under the most skillful hands, might 
 result in damaged structure and impaired 
 function. She finally told me that she was 
 going to bring an action for damages against 
 her surgeon, since he had promised to cure 
 her and failed. In the mean time she died 
 on account of some internal malady, and the 
 doctor was saved from a troublesome law- 
 suit. 
 
MEDICAL WITNESS. 213 
 
 163. The following case illustrates the 
 same point. Two surgeons of this city 
 came to me and said that they were treating 
 a case of fracture of the condyles of the 
 left humerus of a girl about seven years of 
 age, that they had told the father they could 
 not make the limb as good as it was before 
 the injury, and that he had informed them 
 he would compel them by law to make his 
 child's arm all right again. At their re- 
 quest I went to see the patient, and made 
 a careful examination of the injury, as well 
 as the treatment. Then I said to the father 
 that the treatment of his child's case had 
 been conducted with more than ordinary 
 skill and care, and that, he ought to be 
 thankful under the circumstances for his 
 good fortune, and that any recourse to law 
 would be an utter failure. He then con- 
 cluded that he did not know anything about 
 surgery, and that it would be wise on his 
 
214 SUGGESTIONS TO THE 
 
 part not to interfere with the doctors in 
 their attempt to give his child as good a 
 limb as possible. 
 
 164. Two important propositions that 
 ought to be well recognized may be enuncia- 
 ted : (1.) There are some things the surgeon 
 cannot do ; (2.) There are some things the 
 surgeon can do. They flow from the general 
 proposition that there are two extensive 
 fields of surgical work : (1.) One in which 
 injured structure and disordered function 
 cannot be repaired and restored ; (2.) The 
 other in which injured structure and disor- 
 dered function can be repaired and restored. 
 On the members of the surgical profession 
 rests the responsibility of drawing the line 
 of demarcation or limitation around that 
 which is possible in the field of practical 
 surgery. All beyond this line is uncertain 
 or impossible. In the field inclosed by this 
 line, everything is more certain and attaina- 
 
MEDICAL WITNESS. 215 
 
 ble. It might happen that the medical wit- 
 ness would fail to draw the line clearly and 
 correctly around the territory of possible 
 practice. This would vitiate the orderly ad- 
 ministration of justice, since it would affect 
 the charge of the Court, and introduce an 
 element of error into the deliberations of 
 the jury. It might lead to other matters of 
 importance. The advocate might cast re- 
 flections upon the medical witness, who does 
 not, indeed, know everything, though he may 
 stand in the front ranks of his profession. 
 Then the Court might animadvert, as it has 
 been known to do, upon the expert testi- 
 mony ; yet this is an event which does not 
 occur very often at the present day. The 
 jury may take up the burden of the issue 
 and carry it through to a verdict, on an er- 
 roneous belief that the practice of medicine 
 has gone a long way toward perfection, even 
 assuming that the impossible in practice has 
 
216 SUGGESTIONS TO THE 
 
 become very small. In some sense, the doc- 
 tor or witness is taken at his word. He 
 seems to say that he can do perfect work : 
 but he cannot. So perhaps he is rightly 
 blamed. It seems to me that no man can 
 find fault, if we take him at his word. 
 
 165. That one surgical case may differ 
 from another will be seen by the following 
 illustrations. One man received a punc- 
 tured fracture of the skull, and went about 
 for two weeks having the sharp pieces of 
 bone penetrating the brain. At the end of 
 that time I operated on him. He did well, 
 making an excellent recovery, and going 
 back to his work in about three weeks after 
 the operation. Another man fell on his 
 head, suffered from concussion of the brain, 
 and died in a few days. A post-mortem ex- 
 amination showed no fracture of the skull, 
 and disclosed no tangible injury to the sub- 
 stance of the brain. Once more, contrast 
 
MEDICAL WITNESS. 217 
 
 the two following cases. Two thigh-bones 
 were broken on the same day, one in a boy, 
 and the other in a man. The two patients 
 were brought to the College Hospital at 
 once, and put in beds side by side. I treated 
 them both. The man, who was about forty 
 years of age, had broken his left thigh-bone. 
 The boy, who was about twelve years of age, 
 had broken his right thigh-bone. A ques- 
 tion of great interest to surgeons and pa- 
 tients is the shortening of a limb after the 
 repair of a broken bone, especially the thigh- 
 bone. And there is generally less shorten- 
 ing of a limb after treating a fracture of 
 the thigh-bone of a boy than one of a man. 
 I gave the case of the man only ordinary 
 attention, and when he was discharged from 
 the hospital, both lower limbs were exactly 
 of the same length. On the other hand, I 
 gave the case of the boy extraordinary at- 
 tention ; and when he was discharged from 
 
218 SUGGESTIONS TO THE 
 
 the hospital, the right lower limb was over 
 an inch shorter than the left. Was the 
 treatment of the boy bad, and that of the 
 man good ? Could the shortening of the 
 boy's limb have been prevented ? How can 
 we explain the difference in the results of 
 these two cases ? In this way : the boy broke 
 the thigh-bone in his shorter limb, and the 
 man broke the thigh-bone in his longer limb. 
 It might have happened in the case of the 
 man that I might well have been praised 
 for the excellence of my work ; and that in 
 the case in which I did very much I might 
 have been blamed for an unfortunate result. 
 In fine, a suit for malpractice could be built 
 up on such a case as that of the boy, if an 
 unscrupulous attorney could get the support 
 of an ignorant and malicious doctor. But 
 on the development of the real facts, an in- 
 telligent jury would render a verdict for the 
 defendant. Hence in many ways each piece 
 
MEDICAL WITNESS. 219 
 
 of professional work stands by itself, and, as 
 it were, rests on its own merits. So it is 
 that we are constantly brought to the line 
 which bounds and limits the territory in 
 which work is possible. 
 
 166. The assumption of superior know- 
 ledge and skill by some surgeons has already 
 been noticed. Now we may point out the 
 fact that this assumption tends to break 
 down the wall that stands between what we 
 can and what we cannot do. Does a sur- 
 geon pretend and promise to do a piece of 
 work that we know cannot be done, he not 
 only sets up a false standard of practice, 
 but he will fail to accomplish what he 
 promises. It may be said that he is a dan- 
 gerous man who assumes to have knowledge 
 beyond others, who pretends to have skill 
 that others do not possess, and who claims 
 to be able to obtain practical results that 
 others cannot reach, unless, perchance, he 
 
220 SUGGESTIONS TO THE 
 
 can demonstrate that he has made actual ad- 
 vancements in his profession. His arts and 
 his promises are like those of the transcen- 
 dental seer and the bone-setter. He is one 
 of the many causes of the suits for malprac- 
 tice which have been brought against the 
 members of the medical profession in this 
 country. 
 
 167. What shall we study? What can 
 we learn ? What can we do ? We should 
 study structure and function, for in them is 
 the basis of what we want to know. If we 
 can, we should learn more and more com- 
 pletely the nature of disease and injury, so 
 that we can cure and repair them in the 
 most desirable manner. We should find out 
 how far we can prevent and remove disabili- 
 ties, ever keeping in mind the fact that there 
 are some things that we cannot do. So the 
 surgeon must seek to know and understand 
 the limitations of his professional work. In 
 
MEDICAL WITNESS. 221 
 
 the territory that contains what he can per- 
 form with reasonable certainty lies our true 
 responsibility. We are indeed bound to 
 practice with ordinary skill, so says the law 
 of the land ; and we ought to practice with 
 our best skill, so says the law of duty. So 
 it is that any law seeking to compel us to do 
 what it is impossible to perform must be 
 unjust. After all, the true and the main 
 difficulty consists in finding out what is im- 
 possible in the field of professional work. 
 This question must be left to professional 
 men, for they alone can answer it. 
 
 168. What, then, shall I promise my 
 patient ? Shall I promise him life, when I 
 have none to give ? Shall I tell him I can 
 cure him, when he is incurable ? Shall I 
 warrant repair, when there is no material for 
 repair ? Let me rather say to him, that I 
 will do my best to give him the benefit of all 
 the knowledge and skill I have, but that I 
 
222 SUGGESTIONS TO THE 
 
 cannot undertake to do anything whicli is 
 impossible in the art of surgery. If this 
 does not suit him, he is free to seek and 
 find some one who can promise and do more 
 for him than I can. But under no cir- 
 cumstances can I promise to do what I know 
 to be impossible. If this plan were followed 
 in general, it would soon come to pass that 
 suits for malpractice would, in the main, 
 cease. I am certain that suits for civil dam- 
 ages, if any were brought, would result more 
 justly. Let this practice become the rule. 
 Counsel will be better able to interpret and 
 expound the facts of evidence, as given by 
 experts ; judges will cease to make animad- 
 versions on expert witnesses, and charge ju- 
 ries more wisely; juries will bring in verdicts 
 that are more just and satisfactory : and doc- 
 tors will deserve and possess the respect of 
 all right-thinking men. 
 
 169. Finally, we may not forget that the 
 
MEDICAL WITNESS. 223 
 
 field of professional possibilities may be en- 
 larged in the future, as science and art make 
 substantial progress. My appeal is, first, to 
 the medical profession. Let its members 
 cooperate under the influence of an ancient, 
 and I hope not forgotten, esprit de corps. 
 And may the coordinate profession of the 
 law, inspired by the same spirit, work with 
 us in the discovery of truth, in the search 
 for evidence, in the detection of falsehood, 
 and in the promotion of justice. 
 
 170. We must add a few sug-o^estions in 
 regard to the expert who gives evidence as 
 to poisons which have been administered 
 with criminal intent. In this field of work 
 the chemical expert is of the greatest impor- 
 tance. This is so because his knowledge 
 and skill are special, because he alone is 
 competent, or most competent, to answer 
 certain questions. These questions relate 
 to the detection of poisonous substances 
 
224 SUGGESTIONS TO THE 
 
 which have been given for the purpose of 
 destroying life, and which are found in the 
 dead body. As an expert, the chemist tes- 
 tifies to the presence or absence of poisonous 
 substances, after he has made an analysis 
 of matters taken from the dead body in 
 cases of suspected murder. The great care 
 required in making this analysis is familiar 
 to all, and the rules to be followed, in order 
 that the testimony may be relevant, need 
 not be stated here. A general statement 
 will suffice. The expert must be certain 
 that the matters he analyzes were taken from 
 the dead body in question ; he must take 
 pains to identify them beyond a reasona- 
 ble doubt ; and he must keep them in such 
 a manner that they cannot be tampered with 
 by any one. In addition to this, a very im- 
 portant subject has come to the attention of 
 medical jurists within the last few years, the 
 chief points of which may be stated as 
 follows : — 
 
MEDICAL WITNESS. 225 
 
 171. It is generally known that many of 
 the vegetable alkaloids are very poisonous. 
 In more recent times there have been dis- 
 covered a number of putrefactive alkaloids, 
 called ptomaines, which are generally highly 
 poisonous. They are found in the dead 
 body. Some of them have a very close re- 
 semblance to the vegetable alkaloids. Pto- 
 maines that are like coniine, nicotine, 
 strychnine, morphine, atropine, digitaline, 
 veratrine, colchicine, and delphinine have 
 been found in the dead body. In some in- 
 stances of trial for murder, a putrefactive 
 alkaloid, or ptomaine, has been mistaken 
 for a vegetable alkaloid. Each one of these 
 substances can cause death. But the putre- 
 factive alkaloid is developed after death, 
 and is a result, not a cause, of death. The 
 vegetable alkaloid must be administered to 
 cause death. We illustrate by the follow- 
 ing extracts from the work of Yaughn 
 
226 SUGGESTIONS TO THE 
 
 and Novy on Ptomaines and Leucomaines : 
 " The most celebrated case in wliicli a sub- 
 stance giving reactions similar to those of 
 coniine has been found was the Brander- 
 Krebs trial, which took place in Braun- 
 schweig, in 1874. From the undecomposed 
 parts of the body two chemists obtained, in 
 addition to arsenic, an alkaloid which they 
 pronounced coniine." 
 
 172. " This substance was found to be 
 highly poisonous. Seven centigrams in- 
 jected subcutaneously into a large frog 
 produced instantaneous death, and forty- 
 four milligrams given to a pigeon caused a 
 similar result. On account of its poisonous 
 properties the jury of medical experts de- 
 cided that the substance was a vegetable 
 alkaloid. Otto (expert chemist) says that 
 this decision astounded the chemists." 
 
 173. " In a criminal prosecution at Ve- 
 rona, Ciotta obtained from the exhumed but 
 
MEDICAL WITNESS. 227 
 
 only slightly decomposed body an alkaloid, 
 which gave a crystalline precipitate with 
 iodine in hydriotic acid, a red coloration 
 with hydriotic acid, and a color test similar 
 to that of strychnine with sulphuric acid 
 and potassium bichromate, and with oxidiz- 
 ing agents. This substance was strongly 
 poisonous, but did not produce the te- 
 tanic convulsions which are characteristic 
 of strychnine." . . . 
 
 174. "In the Sonzogna trial at Cre- 
 monat, Italy, the experts seem to have con- 
 founded a ptomaine with morphine. . . . 
 In frogs it arrested the heart in systole, 
 which is said never to happen in poisoning 
 with morphine." . . . 
 
 175. "In 1870, General Gibbone, an 
 Italian of prominence, died suddenly. His 
 servant was accused of poisoning him. Two 
 chemists of some reputation reported the 
 presence of delphinine in the viscera." This 
 
228 MEDICAL WITNESS. 
 
 substance comes from a plant which grows 
 in Southern Italy. But " Ciaccia and 
 Vella showed that while delphinine arrests 
 the heart of the frog in diastole, the sus- 
 pected substance arrests in systole." 
 
 176. These facts, as well as many more, 
 are truly astonishing, not only because they 
 are new, but also because of their very great 
 importance. That the greatest chemical 
 experts are alone competent to deal with 
 them, and, if need be, bring them into court 
 and make them plain, is so evident that no 
 one is found to contradict it. 
 
y 
 
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