COLUMBIA LIBRARIES OFFSjTE HEALTH SCIENCES STANDARD HX64073246 RA395.A3 M69 The doctor in court RECAP ii€ te^H=-: £=-_ = iiii; 7 ;^^i>^s.a^ Y\fc% Columtita WlnibtrSit^ tntJieCttpofiSeiBgorfe College of l^pskimi anb ^urgeoniEi S^eferente l^ibrarp THE DOCTOR IN COURT THE DOCTOR IN COURT BY EDWIN VALENTINE MITCHELL, LL.B. OF THE MASSACHUSETTS BAE NEW YORK REBMAN COMPANY HERALD SQUARE BUILDING 141-145 West 36th Street Copyright, 1913, by REBMAN COMPANY New York All Rights reserved PRINTED IN AMERICA PREFATORY NOTE The purpose of the following pages is to give a sketch of the impression of the law as it applies to physicians and snrgeons. It is not a work on the correlation of law and medicine, popularly called medical jurisprudence. It is an attempt to put briefly and in high relief the general principles of law relating to the medical profession, and the rea- sons for those principles. The questions consid- ered are rapidly becoming of more consequence. In the feverish and intemperate haste with which persons nowadays resort to the courts for the re- covery of damages, the physician and surgeon has not escaped. A knowledge of his duties and legal obligations will help him to foresee and forestall unpleasant eventualities likely to grow out of his relations with his patient. E. Y. M. Boston, Mass. Digitized by the Internet Archive in 2010 with funding from Open Knowledge Commons http://www.archive.org/details/doctorincourt1913mitc CONTENTS CHAPTER PAGE I. Professional Evidence 1 11. The Contract of the Profession .... 22 III. Civil Responsibility of the Profession . . 47 IV. Remuneration 78 V. Confidential Communications 96 VI. The Criminal Responsibility of the Pro- fession 108 VII. Qualifications 125 Table of Cases Cited 145 General Index 149 THE DOCTOR IN COURT CHAPTER I PEOFESSIONAL EVIDENCE The physician or surgeon, no matter whether his practice be general or special, is certain to be called upon to give medical evidence in court. This cannot be avoided, as cases are constantly arising which involve questions of personal injuries, of mental capacity, and of death, either accidental, homicidal or suicidal. The doctor has no choice in the matter. He cannot tell in what case he will be summoned into court to testify. If called he must go. Because of the publicity of court proceedings a reputation may be won or lost. Consequently it is of great importance for a doctor to know his re- lations to the court and have his eyes open to the pitfalls set for him by the skilful cross-examiner. The witnesses giving sworn evidence before a tribunal of justice may be placed in two groups: the accidental or non-expert witness, and the pro- fessional or expert witness. It is manifest the doc- tor may be called to give testimony in either ca- pacity. The greater number of facts investigated in our courts are testified to by the first group, 1 2 The Doctor ii^ Couet the jury drawing inferences or conclusions from the facts as given by these witnesses. Back in the early years of our courts this was the sole type of testimony, for the reason that it was the only kind necessary for a jury to render just decisions. Yet with the advancement of learning it became visible that facts and natural laws existed concern- ing which the average man or jury knew but little. It was necessary to have the aid of one who could correctly interpret these facts. So it came to pass that the expert was evolved to assist the court and jury to a true conclusion as to these facts. Since that time the expert witness 's importance as an in- strumentality for the dispensation of justice has increased immensely. The discoveries and inven- tions of science have widened his field of useful- ness inimitably. Now, the examination of a witness in court con- sists of the direct or examination-in-chief, the cross- examination, and the re-direct examination. The examination-in-chief is where the side calling the witness into court questions him as to his knowl- edge of the facts in issue, or, in the case of an ex- pert, where the side for which he is testifying puts hypothetical questions to him for his opinion thereon. The cross-examination is conducted by the opposing counsel. Its purpose is to test the truth of the evidence given upon the examination- in-chief, and the prejudice, memory, knowledge, in- terest, etc., of the witness. The importance of the right of cross-examination can be seen from the Peofessional Evidence 3 very nature of our system of legal procedure ; for example, hearsay evidence, where a witness testi- fies as to what another said, is inadmissible because the person making the statement was not subject to cross-examination; and for the same reason opinions expressed in the works of scientific writers are not generally allowed. (Other reasons for excluding hearsay evidence are that the person making the statement was not under oath at the time, nor was he before the jury so that they could pass on his veracity as a witness. There are many exceptions to the hearsay rule. The one with which the physician is most concerned is the rule admitting dying declarations, provided the declarant knew or believed he was about to die when he made the statement and his death is the subject of the indictment. An illustration of the serious consequences which might attend the cur- tailing of one's right to the cross-examination of witnesses is furnished by the very late New York case of the People v. Lustig (206 K Y., 162). The prisoner was indicted for poisoning his wife with strychnine in order to get the insurance on her life. There was a divergence in the medical opin- ions as to the cause of death. The chief medical witness for the prosecution gave evidence that his toxicological tests had revealed one one-hundredth of a grain of strychnine in the liver of the deceased. The physician for the defence testified that the re- sult of his laboratory work showed no traces of strychnine. With the object of showing the worth- 4 The Doctoe in Coueit lessness of Ms own tests the prosecution's expert was asked by the prisoner's counsel to describe his tests. The accused's fate depended upon the ac- curacy of the physician's work. Did the woman die by poison f The issue was close; a human life was in the balance. Yet the court refused to permit the witness to answer. The higher court justly held this to be serious and reversible error. A new trial was granted. Immediately on being called to the stand for his examination the oath is administered to the witness which binds him if he assents, to tell ' ^ the truth, the whole truth, and nothing but the truth." It has been said that expert testimony should be the color- less light of science brought to bear upon any case where such testimony is necessary. ' ' There should be no half truths uttered, and suppression of the whole truth is in the nature of false testimony." While such evidence should be impartial and un- prejudiced, it is often thought by the expert that to benefit the side calling him he must be absolutely sure that he is right. A conscientious and unpur- cha sable expert will, of course, have the courage of his convictions. Testimony given in a convincing manner undoubtedly carries weight, but so many theories in medicine and surgery have been uj^set that it is best not to be too confident. That the skilled witness may be admirably qualified to give evidence and at the same time be modest and not at all sure of the truth of his opin- ion, is illustrated by the following: Not long ago Pkofessioital Evidence 5 a captain in tlie United States army was called as a skilled witness in a shooting case. The captain astonished all by refusing to swear he could tell the truth. The clerk repeated the oath ; the captain did not assent; he said, ^^No, sir.'' It was not a case of obstinacy, because the witness was willing to do anything he could to assist the court and jury in getting at the facts. Nevertheless, he refused to swear that his conclusions were correct. The judge was puzzled, and the captain made the following explanation of his refusal to assent to the oath: ^^I decline to swear that the expert testi- mony which I may give is the truth. All that I can swear to is that to the best of my ability and understanding and judgment, after years of ex- perience and experiments in the matter of small firearms, certain conditions produce certain results. But I cannot swear such findings are the truth." He was accepted as a witness. The effect of what he said on the jury can be imagined. Here was a man who was not positive that his opinion was right, and was willing to say so, regardless of its effect on the side that called him. The testi- mony of such a man was worthy of serious con- sideration. This attitude can be strongly recom- mended to medical witnesses when they take the stand. It cannot be denied that expert testimony is winked at. It should have high rank as a factor in determining the outcome of cases, yet we often see it go for naught. Some judges go so far as 6 The Doctor in Court to tell juries that it is of little probative value. Thus at the trial of William Palmer, at the Old Bailey in 1856, for the poisoning of a man named Cook, Lord Chief Justice Campbell, in the course of his summary, said to the jury: '^With regard to the medical witnesses, I must observe that, al- though there were among them gentlemen of high honor, consummate integrity, and profound scien- tific knowledge, who came here with a sincere wish to speak the truth, there were also gentlemen whose object was to procure an acquittal of the prisoner. It is, in my opinion, indispensable to the adminis- tration of justice that a witness should not be turned into an advocate, nor an advocate into a witness. ' ^ In a New York case (Ferguson v. Hubbell, 97 K Y., 507 at 514) the court said: ^^ Better results will generally be reached by taking the impartial, unbiased judgments of twelve jurors of common sense and common experience than can be obtained by taking the opinions of experts, if not generally hired, at least friendly, whose opinions cannot fail generally to be warped by a desire to promote the cause in which they are enlisted.'' Despite this judicial denunciation of expert testimony innumerable instances of the courts recognizing the knowledge and experience of med- ical witnesses as of great value might be cited. In many cases it is absolutely indispensable because of the rule of law requiring the production of the best evidence. Who but a toxicologist can give a correct opinion as to whether or not a man came Pkofessional Evidence 7 to his death by poisoning "f From the position which experts now hold in legal proceedings it is not unnatural that a great hue and cry should be raised to abolish a system which permits such farces as the Thaw trial to be enacted in our courts. But remove the expert to a non-partisan position by having him appointed by the court and great distance will be covered in the direction of genuine reform. When juries come to look upon the ex- pert more as an officer or servant of the court than as one giving evidence to fortify either side of a case, then the profession will be treated with greater respect and not held up to ridicule. Like the army captain, let the medical witness have con- stant regard to the serious obligation of his oath, and much of the present misunderstanding of the expert will be dispelled. Naturally when a skilled witness is called to the stand to give evidence, the question at once arises as to whether he is in fact an expert. Accordingly the foundation for an expert opinion is laid by qual- ifying the witness as such. The doctor is inter- rogated as to his education, experience, etc., after which, and before going on with his testimony, he may be taken in hand and cross-examined as to his qualifications. The court then decides whether he shall be permitted to testify. In other words, the presiding justice rules upon the question of the doctor's competency as a witness. The law does not recognize any particular school or class of medical practitioners as being 8 The Doctoe in Court better qualified than another for skilled witnesses. The criterion is knowledge. This knowledge may be gained by reading and studying the books, or by experience, or both. The present low status of the expert is also attributed to the low standards set for experts, which, it is said permit the pseudo- expert to thrust himself upon the courts. Civil service examinations have been suggested as a rem- edy, but if, as recommended, medical witnesses were chosen by the court, it would insure science being interpreted by experts. In the direct examination the witness should state the facts simply, without qualifying words. If he says the patient suffered from a *^very severe nervous shock,'' this is certain to be picked up on the cross-examination. It is sometimes neces- sary to use technical words in order to complete the record of the court, so that another medical witness coming into court at some later time can tell exactly what was meant. When such terms are essential be sure to explain them in plain words to the jury. Taylor tells of a case where a doctor testified ^Hhat on examining the prosecutor he found him suffering from a severe contusion of the integuments under the left orbit, with great extrav- asation of blood and ecchymosis in the surround- ing cellular tissue, which was in a tumefied state. There is also considerable ' abrasion of the cuti- cle." On being asked if he meant a black eye, he said ^^yes." The doctor, was laughed out of court. If this witness had stated the patient had Pkofessional Evidence 9 a black eye, then, if pressed and asked what he meant by a black eye, had given a technical de- scription, that would in all probability have re- lieved him of further examination. Where, however, the doctor is acting purely as an expert it may not be so easy a task to give answers wholly devoid of medical phraseology. Dr. Keynold Webb Wilcox in his inaugural address as president of the Society of Medical Jurispru- dence said: ^'To a man who is a specialist, the demand which almost invariably occurs, that his scientific analysis of a situation be translated into the vernacular of every-day speech, is maddening. The popular idea that present-day physicians de- light in amplifying a medical vocabulary for the purpose of hearing lengthy words, is far from being founded upon fact. The tendency is in ex- actly the opposite direction. **No one who knows anything about literature would expect the translator of an idiomatic bit of French verse to obtain in English exactly the same meaning. Yet medical men of international repu- tation are asked to describe a state of mental dis- order in one-syllable words, conceived by our an- cestors, in an era when it was scarcely realized that the brain was part of the human system. I do not advocate having the experts^ testimony tuned so high that the jury and judge are in the dark, but it does seem that the means should be taken to impart to them the rudiments of medical phraseology. ' ' 10 The Doctor in Court Efficiency in tlie high art of cross-examination is a matter upon which a great many lawyers pride themselves. Perhaps no greater opportunity for the trial lawyer to distinguish himself is afforded than the cross-examination of expert witnesses. Extended preparation with the object of undermi- ning the testimony of medical witnesses is often made under the tutorship of other experts. In- geniously contrived questions are set for the wit- ness. So the doctor must beware the cross-exami- nation. It is not presumed here for a minute that the physician would testify falsely. The lying witness is generally very easy to corner. Even the clev- erest will make a fatal slip sooner or later. As a matter of fact, the cross-examiner must treat the medical witness 's testimony with skepticism. This is the attitude of the advocate's mind in approach- ing any witness if the witness has given testimony conflicting with that already advanced or to be offered by the examiner's side. It is a mistake to believe that when the lawyer rises for the cross- examination his sole object is to make the witness out a liar. He will undoubtedly try to prove his own case from the lips of the witness or some theory not incompatible therewith. This method of turning testimony in favor of the questioner 's side is followed by the majority of cross-examiners. It does not mean that he is trying to trip the witness,- because what he seeks to bring out has in all prob- ability not been touched on in the examination-in- Pkofessiokal Evidence 11 chief. Naturally an attorney is not going to ask his own witnesses for facts which he knows are damaging to his cause. He leaves them for the op- position to bring out ; it is for these the cross-ques- tioner seeks. For illustration : In a suit for personal injuries against a railroad company, where the plaintiff suf- fered a fracture of his leg which resulted in a short- ening of the limb, the attending physician testified that ^'the condition was a simple transverse frac- ture at the junction of the middle and upper third of the femur. That after reduction and the appli- cation of dressings an X-ray plate showed a per- fect anterioposterior alignment. '' A liberal ver- dict was returned for the plaintiff. The doctor subsequently in conversation with a friend said that he had other X-ray plates taken at various angles showing there was an overlapping of the ends of the bones due to his improper application of dressings. Here a proper cross-examination would have brought out this fact and damages would have been greatly mitigated. By failure to properly cross-examine the witness the defendant was paying for the doctor's carelessness. A common tactic of the trial lawyer in cross- examining a witness is to attempt the witness's downfall by showing that the witness is "inter- ested" in the outcome of the case. The physician is asked how he happened to come into the case. He is carefully examined as to whether he has re- ceived compensation for his services in attending 12 The Doctor ii^ Court the patient, or how much he is to receive for ap- pearing as an expert. If an unsatisfactory reply is given, the attorney may nse the fruits of such a line of questioning in his argument to discount and nullify the physician's testimony. The advocate will try to persuade the jury that the doctor's being paid is a contingency dependent upon a favorable verdict, and that the testimony of one so interested must necessarily be highly colored. Many lawyers believe a most cursory reading of medical authorities will qualify them to success- fully cross-question the greatest specialists upon their own subjects. A true expert can easily de- fend himself against the attacks of such an antag- onist, but no matter how strongly he may be tempted to strike back let him resist the impulse. It is poor taste to engage in repartee. Medical wit- nesses in general have been hurt by the physician not long out of medical school matching wits and bandying words with counsel. The latter has the advantage from his position as questioner. Nat- urally the lawyer knows more about the art of cross-examination than the average witness ; for it is part of the practice of his profession, just as it is part of the physician's to prescribe for illnesses. True, the advocate frequently runs himself on his own sword; but the average lawyer is more proficient in the art than the medical witness. When the physician is tormented by a member of the Spanish Inquisition school of cross-exami- Pkofessional Evidence 13 nation, lie should above all things keep his temper. This species of examiner is not half as deadly as the quiet, friendly, persuasive type. But it is im- portant always to be cool while on the stand. If a cross-examiner sees that he can get the witness angry, he will do all in his power to bring this about. For the witness then thinks more of a means of retaliation and not so much of what he is saying, thus making it easier for the examiner to trap him in a statement carelessly inconsistent, or the witness may utter an unguarded statement. In giving his opinion the expert cannot usurp the right of the jury to judge the facts. The ex- pert is not to say which witnesses are telling the truth. That is for the jury to decide. ^ ' In order, ' ' says the Supreme Judicial Court of Massachusetts (Dickenson v. Fitchburg, 13 Gray, 546), '^to obtain the opinion of a witness on matters not depending on general knowledge, but on facts not testified of by himself, one of two modes is pursued : either the witness is present and hears all the testimony, or the testimony is summed up in the question put to him ; and in either case the question is put to him hypothetically, whether, if certain facts testified of are true, he can form an opinion, and what that opinion is. " Now a hypothetical question is framed on the existence of facts which are assumed to be then proven, or there is a reasonable expectancy that they will be in evidence at a later time. It must 14 The Doctor in Court necessarily contain the facts on which an opinion is wanted. It is for the jury to decide whether these facts are the trnth. The following is a good example of a hypo- thetical question which was put to a physician of standing and experience, for his opinion as to the cause of a sickness, the outcome of which was the death of a little girl: '^Suppose a girl between seven and eight years of age, who had always been in good health, on the 9th day of January, 1887, to have been run over by a runaway horse, with sleigh attached, to have been knocked insensible to the ground, the horse and sleigh passing over her, inflicting three cuts, one upon the top, one upon the side, and one upon the back of her head, from the hoofs of the horse or otherwise ; that she there- after was attacked with vomiting, and was confined to the house for two months, suffering gTeat pain in the back and front of the head ; that at intervals thereafter increasing in frequency and intensity till the date of her death, on May 18, 1892, she was attacked with violent pains in the head accom- panied with vomiting ; that in the last few months of her life her sight gTadually failed, and she be- came totally blind ; that her legs became unsteady, and her control over them uncertain ; that she suf- fered almost continually great pain in the front and back of her head; that after her death, on examination, it was found that she had one or more tumors of the cerebellum, or at the base of the brain — ^what, in your opinion, was the exciting cause of Professional Evidence 15 the illness from wMch she suffered from Jannary 9, 1887, the date of the accident, till the date of her death. May 18, 1892 r' (Hardiman v. Brown, 162 Mass., 585.) Leading questions cannot, as a general rule,, be asked on the direct examination, but are per- missible on the cross-examination. A leading question is one that suggests the answer. On the examination-in-chief the question would be worded, ** Where were you at 9 o'clock on the night of Feb- ruary 16th 1 ' ' Answer, ^ * I was at the theatre. ' ' In cross-examining this witness the question could be put, ^'Were you not at the theatre on the night of February 16th! '^ The witness should watch on the cross-examina- tion for questions so involved as to contain really two questions, one of which can be answered ^ ^ yes ' * and the other ^^no,'' whereas if the physician answered the whole with a ^ ^ yes ' ' or ^ ^no, ' ' it would trap him. The witness should not hesitate to say that the question has two answers. Again, many times questions are asked which assume something to be true that has no evidence to support it, as where A is indicted for shooting B, which he denies, and is asked, ^ ' Did B say any- thing to you before you shot him 1 ^ ^ The doctor is likely to get a question of this description. It is, of course, improper. They are put to the witness on the chance of getting them into the record un- challenged. The medical witness need not answer a question 16 The Doctoe in Couet which tends to incriminate him. Poore (A Treatise on Medical Jurisprudence) says that '4n the old days of duelling any doctor who went out as a surgeon to a duel became an accessory to the fact if the duel resulted in death. Technically he be- came accessory to a murder. Therefore, in such a case if the doctor was asked whether he went, knowing that a duel was to be fought, he was not bound to answer, because the answer to it might incriminate him.'' The use of notes by a witness in court is gen- erally allowed for the purpose of refreshing the memory of the witness. They must be of such a nature that the witness knows they were correct when made. The witness must have made them himself at the time of the occurrence of the facts, or so soon afterward that it is likely they were fresh in his memory (Stephens' Digest of the Law of Evidence, 339). Such writings do not become evi- dence. Yet testimony given from complete notes is of great worth. The importance to the physician of keeping full and accurate records of cases in his charge cannot be overemphasized. The physician should keep copies of the death certificates he gives, and the records of the progress of diseases in cases under his care and also hospital records, especially where casualties are concerned. General practitioners are, as a rule, too careless in such matters. It may be many years before a general prac- titioner is suddenly summoned as a witness in a Pkofessional Evidence 17 case, and he then finds himself at a loss to account for certain things and cannot answer questions properly. Owing to the multiplicity of personal in- jury suits with which our courts are congested, the physician is frequently asked to give medical evidence concerning injuries sustained by his pa- tient in an accident which, perhaps, happened years before. If he is without any record he will find himself in an embarrassing situation. In almost every personal injury case the plaintiff has under- gone a physical examination by a physician or sur- geon hired by the defendant. If called to make such an examination, a record thereof should be made for the benefit of the defendant. The follow- ing outline for making these reports is suggested : Name of Case. Date. Time. Place of Accident. Date of Examination. Medical Attendance, stating fully names of phy- sicians with addresses, also hospital, if any, at which injured was treated. Name. Age. Occupation. Business and Home Address of Injured. Married or Single, etc. Diagnosis. History. 18 The Doctok in Court Present Condition of Injured. Nature of the Accident as told by Injured. Prognosis. Eemarks. The ^ ^ remarks ' ' of the physician should be writ- ten on a separate sheet of paper; for if the report is to be used by the doctor to refresh his memory in court, it is likely to be scrutinized by the oppos- ing counsel, and it is well not to have these confi- dential comments a part of the report. While the rules governing the giving of expert medical opinions in court are purely questions of evidence with which the legal profession is more concerned, still they have been hinted at here, and it does not seem amiss to give the underlying rea- sons for permitting medical witnesses to give opin- ions. As a general rule witnesses are not permitted to voice their opinions in court. They are limited to giving in evidence the bare facts of which they have knowledge. It is the special function of the jury after considering the facts thus presented to voice its opinion thereon. In other words, a ver- dict is the conclusion or opinion of the jury on the facts. Notwithstanding this, there are, as we have seen, certain cases where by necessity one having special skill and knowledge, is called to give an opinion by way of explanation of the matter in issue to the jury. It is under this exception that the expert medical opinion comes. Obviously a physician and Pkofessional Evidence 19 surgeon has a knowledge and training not common to men in general. Consequently when a question involving medicine or surgery arises, the medical expert is called on account of his superior knowl- edge. Because the facts speak in a strange tongue to the ordinary man, the physician is called to translate and explain their correct significance. The opinions so given are not conclusive, but are looked upon as any other testimony. Inasmuch as they are based on assumptions of fact the opinion is worthless if the jury do not find the evidence or facts upon which they are laid to be true: if the foundation is unstable the superstructure falls. The giving of expert opinions in court did not become well established until the eighteenth cen- tury. The adoption of the custom has been grad- ual ; its history is that of the correlation of law and medicine. As progress was made in the sciences and arts the professional witness became of ever- increasing importance, until to-day he is indispen- sable. In 1532 the diet of Eatisbon, at the instigation of Emperor Charles V, adopted the penal code of Germany, in which provision was made for the call- ing of physicians as witnesses in case of injury, poisoning, violent death, etc. In England it was first customary to select jurors who were specially fitted to judge the facts of a particular case (Historical and Practical Considerations Regarding Expert Testimony, by Learned Hand, vol. 15, Harv. Law Rev., 40) . Prob- 20 The Doctoe in Coukt ably the earliest trial where a medical witness tes- tified as to his conclusions was that of Alsop v. Bowtrell (Cro. Jac, 54) in 1620, when physicians upon the issue of legitimacy of a child said it was possible for a woman to have a child forty weeks and nine days after the death of her husband, be- cause the time might be delayed on account of lack of strength or bad usage. The Witches case (6 Howell, State Trials, 697) tried in 1665, is another early case in which an expert opinion was per- mitted. In that trial a physician gave his opinion of the accused persons. He declared them to be witches. Because of the very restricted sense in which medical books can be used in our courts, the de- liberately expressed opinions of experts upon scientific matters is of great assistance. A product of our civilization, the employment of the expert daily becomes more frequent and of greater con- sequence. The desire, therefore, to remedy the faults of the method which now obtains is actively manifesting itself. Yet the task of formulating a satisfactory plan still vexes the members of both professions. Many reforms have been suggested. That one which would have the expert appointed by the court gives most promise of deliverance from the present situation. For the evils of the system seem chargeable to the fact that the expert is now retained by the contending parties in a case. His position is that of an active, interested participant. The suspicion that he is a mere ^^intellectual prosti- Pkofessiokal Evidence 21 tute" is immediately aroused in the minds of the jury. His appointment by the court would remove him from this embarrassing situation and place him in an unprejudiced and neutral position. The viciousness of the present method has brought forth just criticism and reproach. It is a subject which deserves serious reformatory consideration. The remedy lies with the members of both professions (Expert Testimony, — Prevalent Complaints and Proposed Eemedies by Judge William L. Foster, 11 Harv. Law Kev., 169; Expert Testimony, by Lee Max Friedman, Yale Law Journal. February, 1910). When the physician and surgeon is called upon to give evidence in court he should bear in mind the advice of Dr. Taylor. ^'It is essential, '^ said Taylor, '^ first, that he should be prepared on all parts of the subject on which he is about to give evidence; and, secondly, his demeanor should be that of an educated gentleman and suited to the serious occasion on which he appears. ' ' CHAPTER ir THE CONTEACT OF THE PROFESSIOIT At tliis point it seems necessary to introduce a brief preliminary statement of the origin and his- tory of the legal system of onr country in order that the law as it specially affects physicians and surgeons in their relations to their patients may be more readily understood. This system in its jDresent complex development is said to be like a mighty cathedral^ of slow construction and com- posite architecture, the materials for which have been brought from various sources, and the growth of which has been supervised by a coalition of legal architects. Since the evolution of human from animal society man has had his conduct regulated by law. Through the centuries of savagery and barbarism, customary law determined the relations of man to his fellows, and after the dawn of civilization, through conquest and migration and the consequent intermingling and blending of peoples and socie- ties, positive law arose and developed as a natural attendant of advancing civilization and a necessary factor in an increasingly complex society. In England, which at the close of the thirteenth 22 Contract op the Pkofession 23 century had only two things on her statute-book be- sides the Magna Charta, the common law has been the foundation of all modern law, written or other- wise. It is composed of customs and maxims which have been acted upon since no man can say what time. In the words of Cooley, ^^The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic in- stitutions, and the acquisition, control, and transfer of property from time immemorial. It was the out- growth of the habits of thought and action of the people, and was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new inventions in- troduced new wants and conveniences and new methods of business'^ ( Cooley 's Constitutional Limitations, 32). It must not be supposed then that law is a set of fixed and unalterable rules. It is constantly changing with the welter and cross currents of social and economic conditions to meet the changing needs of a changing society. Now it must be kept in mind that for more than half of its eventful life this country existed as a British colonial possession. Our forefathers as subjects of England, lived in her territory, and were governed by English law. When as emi- grants they crossed to the New World, they brought with them such parts of the common and statutory law of the mother country as were best suited to 24 The Doctor ix Court tlieir altered circumstances on this side of the At- lantic. After hostilities between the colonies and the crown ended in our independence, it was only natural that our ancestors should keep the laws to which they had been accustomed in so far as they did not abrogate our constitutions and charters. It is not strange then that we find the common law an integral part of the system of law under which we live. In this country, as in England, it is the foundation of all our modern statutes, and, though unwritten, comprises by far the greater part of our law. Therefore it follows that many of the rules relating to the duties and legal obliga- tions of physicians and surgeons are to be found in the common law. Sir William Blackstone defines a contract as *^an agreement, upon a sufficient consideration, to do or not to do a particular thing'' (2 Bl. Conun., 442). Contracts are of different kinds. They are usually divided with reference to their form into contracts of record, specialties, and simple or parol contracts. Contracts of record are those of which the record of a court is the evidence, as a judgment. Specialties are sealed instruments, such as deeds and bonds. The last division into simple or parol contracts includes all other contracts which may be in writing or oral. Simple contracts are also distinguished as ex- press or implied. This classification is important in the contracts of the physician and surgeon and CONTKACT OF THE PeOFESSION 25 his patient. An express contract is a ^^ contract made in distinct and explicit language, or by writ- ing; as distinguished from an implied contract'' (2 Kent's Comm., 450), which is ^'one not created or evidenced by the explicit agreement of the parties, but inferred by law as a matter of reason and jus- tice, from their acts or conduct" (2 Bl. Comm., 443). For illustration : X engages Y to perform some service for him. The law will here imply an agree- ment or understanding that X will pay Y a reason- able amount for the work he does. Contracts are further separated into those which are executed and those which are executory. An executed contract is one that has been per- formed fully and nothing remains to be done by the parties thereto. A contract is said to be executory when there is yet something to be done. There are certain elements which are necessary in the formation of every contract enforceable in law. It is essential that the parties should be ca- pable of contracting. It is well known that certain persons are not competent to make contracts. Thus a minor or infant (one who is under twenty- one years of age, though in some instances a fe- male attains her majority at eighteen years) can- not legally contract. The minor's contract, except for ^^necessaries," is held to be voidable, not void, which means that upon becoming of age or a rea- sonable time thereafter, he can elect to disaffirm the contract and not bind himself to its terms, or he 26 The Doctoe in Court can ratify it and become bound. With regard to ^'necessaries/' in the words of Lord Coke (Co. Lit., 172a) '4t is agreed by all the books that an in- fant may bind himself to pay for his necessary meat, drink, apparel, physic and other neces- saries.'' (Insane persons, drunkards, and bank- rupts are in certain cases considered incapable of contracting.) Another constituent element of a contract is that the minds of the parties must meet. There must be mutual consent to its stipulations ; there must be no mistake or fraud. Furthermore, there must be a valid considera- tion. The consideration is the ' ^ inducement to the contract" (Black's Law Dictionary). It is also necessary that the object of the con- tract be one that is permitted by law; that is to say, a contract to do an illegal act is void. For ex- ample, the owner of a '^ medical institute" could not contract to cure diseases and give medical ad- vice and treatment when he did not have a license to practise medicine (Deaton v. Lawson, 40 Wash., 486; 82 Pac, 879). He could not perform his part of the contract without violating the law, hence there was no valid consideration, and the contract was void. The language used in making contracts, whether they be oral or written, and the effect thereof, are matters of fact for the jury to deter- mine. Nevertheless, the law will often infer or im- ply a contract from certain facts which are undis- CONTKACT OF THE PeOFESSION 27 puted. It considers certain elements a part of some classes of contracts, and charges the parties with certain duties in connection therewith. This is the case of contracts of a semi-pnblic nature, as those of lawyers and the contracts of the medical pro- fession. So it is by implication of law that the physician and surgeon holding himself out to the world as such, represents that he possesses the wis- dom and skill necessary to qualify him to practise. The law charges him absolutely with the duty of possessing this knowledge (Force v. Gregory, 63 Conn., 167; 38 Am. St. Eep., 371; Pike v. Honsin- ger, 155 N. Y., 201 ; Kendall v. Brown, 74 111., 232 ; Potter V. Warner, 91 Pa. St., 362 ; Sears v. Pren- tice, 8 East, 348). It is a right of his patient to assume this to be the fact, and an attempt to per- form an operation, where the physician lacks the learning and experience to use ordinary skill, will not be excused on the plea of ignorance. This degree of professional learning and skill which the physician is required to bring to the aid and relief of his patients, has been considered by the courts in a vast number of cases. They have almost universally held that when a physician and surgeon undertakes to attend a case, he impliedly contracts that he will use that degree of learning and skill for his employer which is ordinarily possessed by other members of his profession in localities not dissimilar from that in which he is practising ( Whitesell v. Hill, 101 la., 629 ; 37 L. E. A., 830; Small v. Howard, 128 Mass., 131; 35 28 The Doctoe in Court Am. St. Rep., 363; Force v. Gregory, 63 Conn., 167; Tompkins v. Pacific Mut. Life Ins. Co., 53 W. Va., 479 ; Akridge v. Noble, 114 Ga., 949 ; Grainger V. Still, 187 Mo., 197; Utley v. Bums, 70 111., 167; Leigliton v. Sargent, 31 N. H., 119 ; McCracken v. Smathers, 122 N. C, 799; Bonnet v. Foote, 47 Colo., 282 ; Van Skike v. Potter, 53 Nek, 28 ; Hales V. Raines, 146 Mo. App., 232 ; Barnes v. Means, 82 111., 379 ; Pike v. Honsinger, 155 N. Y., 201 ; Jones V. Angell, 95 Ind., 376 ; McMurdock v. Kimberlin, 23 Mo. App., 523; Gillette v. Tucker, 67 Ohio St., 106; Wells V. Ferry-Baker Co., 57 Wash., 658; 107 Pac. Rep., 869; Wood v. Clapp, 4 Sneed (Tenn.), 65 ; Dunbauld v. Thompson, 109 la., 199. See also exhaustive note in 37 Lawj^ers ' Reports Annotated, 325). The reason for taking into consideration the place where the medical man carries on his practice is apparent immediately we think of the educational advantages the city doctor has over one who prac- tises in the less thickly populated sections of the country. The former has institutional privileges of hospitals and libraries. He can attend clinics, lectures, and the meetings of medical societies, thus becoming quickly conversant with the most recent and up-to-date methods of diagnosis and treat- ment. It would obviously work an injustice to hold otherwise. Of course, a country doctor may be equipped with an excellent education and have a wide knowledge of the literature of his profes- sion, but proficiency in performing difficult and Contract of the Profession 29 delicate operations comes only through experience. His opportunities for acquiring skill are limited. Here is an illustration: In the case of Small V. Howard (128 Mass., 131), a physician and sur- geon was sued for negligently treating and dress- ing an injury to the wrist of the plaintiff. It appeared that the defendant was a practitioner in a small town. The wound was a very severe one, having heen caused hy glass, and the inside of the wrist was cut to the hone, severing all the tendons and arteries. The court charged the jury as to the degree of skill and learning it was incumhent on the defendant to possess, that ^Hhe defendant, undertaking to practise as a physician and sur- geon in a town of comparatively small population, was hound to possess that skill only which phy- sicians and surgeons of ordinary ahility and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; he was not hound to possess that high degree of art and skill possessed hy eminent surgeons practising in large cities and making a specialty of the prac- tice of surgery. ' ' It was held by the higher court that there was no error in this charge. The court in pronouncing it correct said: ^^It is a matter of common knowledge that a physician in a small country village does not usually make a specialty of surgery, and, however well informed he may be in the theory of all parts of his profession, he would, generally speaking, be but seldom called upon as a surgeon to perform difficult operations. ' ' 30 The Doctoe ik Court It has been held that the skill and learning essential for the medical man to possess and use is not to be tested by the standard of the par- ticular neighborhood in which he carries on his practice. Said the court in Gramm v. Boener (56 Ind., 497), impugning the contrary doctrine: i i There might be but a few practising in the given locality, all of whom might be quacks, ignorant pre- tenders to knowledge not possessed by them, and it would not do to say, that, because one possessed and exercised as much skill as the others, he could not be chargeable with the want of reasonable skill.'' He is not bound to exercise that skill which is necessary to put the patient in as good condition as he was before the injury or illness. Thus it was held in McCandless v. McWha (22 Pa. St., 261) to be error to instruct the jury that '^the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and of equal length with the other when healed, and if he did not, he was accountable in damages just as a stonemason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney and it would smoke by reason of a want of skill in its construc- tion. ' ' In disapproving of this statement of the law, the upper court said: ^'The fracture may be so complicated that no skill vouchsafed to man can re- store original straightness and length; or the pa- CONTKACT OF THE pKOrESSIOISr 31 tient may, by wilful disregard of the surgeon's di- rections, impair the effect of the best conceived measures. He deals not with insensate matter like the stonemason or bricklayer, who can choose their materials and adjust them according to mathe- matical lines ; but he has a suffering human being to treat, a nervous system to tranquillize, and a will to regulate and control." So also the courts have said the physician and surgeon does not have to possess the highest degree of skill (Small v. Howard, 128 Mass., 131; Howard v. Grover, 28 Me., 97; Lamphier v. Phipos, 8 Car. & P., 475) ; nor need he be thoroughly educated (Peck v. Hut- chinson, 88 la., 320). It must not be thought when a question of skill and learning is under consideration that the law has no regard for the current state of progress of medicine and surgery. For it takes cognizance of such advancement, and methods fallen into desue- tude will not be tolerated, even though the phy- sician and surgeon carries on his practice in a thinly settled neighborhood (Almond v. Nugent, 34 la., 300; McCandless v. McWha, 22 Pa. St., 261; Haire v. Keese, 7 Phila. (Pa.), 138; Gates v. Fleischer, 67 Mo., 504; Nelson v. Harringi:on, 72 Wis., 591; 12 L. R. A., 719; Small v. Howard, 128 Mass., 131; Tetft v. Wilcox, 6 Kan., 33; Hitchcock v. Burgett, 38 Mich., 501 ; Bigney v. Fisher, 26 R. I., 402; Gillette v. Tucker, 67 Oliio State, 106). The law imposes upon the physician and sur- geon the duty of using reasonable care, zeal, and 32 The Doctor in Court diligence in the treatment of every case he engages to attend. The criterion of what constitutes due care on the doctor's part is the same set for cases involving questions of skill and learning; that is, the reasonable degree exercised by the average members of the profession similarly located (see cases cited supra). It was said in Pike v. Ilons- inger (155 N. Y., 201) : ^'Upon consenting to treat a patient, it becomes his [the physician's and sur- geon's] duty to use reasonable care and diligence in the exercise of his skill and the application of Ms learning to accomplish the purpose for which he was employed." This rule has been very gen- erally followed by the various States (McCandless V. McWha, 22 Pa. St., 261 ; McNevins v. Lowe, 40 111., 210; Patten v. Wiggin, 51 Me., 594; Carpenter V. Blake, 10 Hun (N. Y.), 358; Craig v. Chambers, 17 Ohio St., 254). In determining a question of skill and care it is immaterial whether the physician was compen- sated for his care of and attention to the case. In other words, liability for negligence or malpractice may attach without a contract for compensation, express or implied (Peck v. Hutchinson, 88 la., 320; McNevins v. Lowe, 40 111., 209; DuBois v. Decker, 130 N. Y., 325; Gladwell v. Steggall, 5 Bing. (N. C), 773). ^^ Whether the patient be a pauper or a mil- lionaire, whether he be treated gratuitously or for reward, the physician owes him precisely the same measure of duty and the same degree of skill and CONTEACT OF THE PkOFESSION 33 care'^ (Becker v. Janinski, 27 Abb. N. C, 45). Neither is it material that the medical attendance is to be paid for by some third party (Du Bois v. Decker, 130 N. Y., 325). It was held in Higgins v. McCabe (126 Mass., 13; 30 Am. Eep., 642), where one who professed to be a midwife volunteered gra- tuitously to treat a child for an eye trouble and the child subsequently became blind, that such a person not being specially qualified could only be required to use that skill which persons similarly qualified would exercise under like conditions. The court said: **To hold otherwise would be to charge responsibility in large damages upon all who make mistakes in the performance of kindly offices for the sick." It is palpable from this case that persons who make no pretentions to possess- ing the skill and learning of a regular practitioner, but put themselves in the position of such a one, will not be held to so strict a degree of account- ability as one who holds himself out as a phy- sician and deceives the patient (Musser v. Chase, 29 Ohio St., 577; see also Nelson v. Harrington, 72 Wis., 591). From a moral standpoint the doctor must, of course, use the very highest degree of care and skill, but in contemplation of law it is only neces- sary for him to exercise that which is ordinary and reasonable (Leighton v. Sargent, 27 N. H., 460). It is apparent that some cases require greater at- tention than others; there is a great difference between the skill and care which is used in a case 34 The Doctor in- Court of typhoid fever and one of simple coryza. By some courts the view is held that the measure of care and skill which the physician must exercise is dependent upon the nature of the complaint which gives occasion for his employment; that is to say, in serious cases a greater degree of dili- gence and skill must be used than in cases of minor imi^ortance. But the tendency of the courts is contra to this. It is to the effect that the de- gree of skill and care required is not to be meas- ured by the condition of the patient (Utley v. Burns, 70 111., 162 ; Peck v. Martin, 17 Ind., il5 ; Eeynolds v. Graves, 3 Wis., 371). The degree of skill and diligence which the phy- sician and surgeon is bound to exercise arises, as we have seen, from the undertaking by implica- tion of law. It is implied in those cases where there is not an express contract. Obviously one who professes to be a specialist or possesses unusual endowments may hold himself out and contract with the patient as one possessed with extraordi- nary skill and learning in a particular branch of medicine or surgery, not common to the gen- eral practitioner of the profession. In such a case, of course, he is held to a higher professional stand- ard. He must use that care and skill in diagnosing and treating a given case which is exercised by other specialists in his particular line with refer- ence to the state of scientific knowledge at the time of his treatment (Pettigrew v. Lewis, 46 Kan., 78; Baker v. Hancock, 29 Ind. App., 456; Feeney v. Contract of the Pkofession 35 Spaulding, 89 Me., Ill ; 35 AtL, 1027 ; Williams v. Le Bar, 141 Pa. St., 149 ; McMurdock v. Kimberlin, 23 Mo. App., 523; Whitesell v. Hill, 101 la., 629). This is the age of specialization, and, owing to the extended range of scientific investigation, it becomes impossible for the average practitioner to attain a use of this knowledge and the develop- ment resulting therefrom in the course of his prac- tice. An oculist is one of the many examples of this. He is held to the same measure of skill and care as others practising his specialty (Stern v. Lanng, 106 La., 738). The issue in such cases being whether the physician professed to be a specialist and held himself out as such, it is a question of fact for the plaintiff to prove and the jury to de- cide (Baker v. Hancock, 29 Ind. App., 456; McMur- dock V. Kimberlin, 23 Mo. App., 523). In addition to his engagement to use due care and skill in diagnosing and treating a case the medical practitioner assumes an implied obliga- tion to use his best judgment in matters of doubt as to the best course to take (Patten v. Wiggin, 51 Me., 594 ; Du Bois v. Decker, 130 N. Y., 325 ; Heath V. Glisan, 3 Ore., 64) » The case of Mallen v. Bo^nton (132 Mass., 443) was an action against a physician for improperly treating a broken arm. The court of last resort held that the jury was properly instructed that, *^If the defendant at any time during his at- tendance upon the plaintiff, either at the time of the original injury or afterward, was uncertain 36 The Doctor in Court and in doubt as to the extent and nature of the in- jury he was attending upon, the defendant was required to use his best judgment as to the best course of treatment, and also whether he should consult some competent surgeon, if such could be found within a reasonable distance. If the defend- ant had not the required skill and experience to treat the arm or felt incompetent to care for the injury he should have temporarily dressed it, if necessary, and recommended the plaintiff to a more skilful surgeon." The physician and surgeon, however, does not warrant the infallibility of his judgment where he can prove that he used reasonable care and pos- sessed the skill of the average members of the pro- fession in good standing in similar localities (West V. Martin, 31 Mo., 375; Jackson v. Bumham, 20 Colo., 532). Naturally there can be such a mistake of judg- ment as on its face to be repugnant to the belief that the required skill and diligence were used (West V. Martin, 31 Mo., 375), and it is in those cases where the error is so great or gross as to im- ply a want of ordinary skill and care that the phy- sician and surgeon is made responsible. For example, a man without any special quali- fications or learning in the science of medicine and surgery might attempt a serious and delicate oper- ation with disastrous results. It might be only the result of a mistaken judgment, but, nevertheless, he would be liable, for he did not have the skill and CONTEACT OF THE PeOFESSION 37 learning essential to qualify Mm to undertake such an operation. The physician is bound to employ the remedies and appliances which experience and reason dictate as being best in aiding the patient to a speedy recovery, and even though these be of the simplest kind he must exercise his best judg- ment together with reasonable care and skill in order to absolve himself from liability (McCandless V. McWha, 22 Pa. St., 261). An improper diagnosis would not render him liable if there was no error in the treatment following such diagnosis (Tomer v. Aiken, 126 la., 114). There is no implication or presumption in the contract of the physician that he will cure his pa- tient. He does not guarantee, warrant, or insure the success of his treatment (O'Hara v. Wells, 14 Neb., 403 ; Ewing v. Goode, 78 Fed. R., 442 ; Link v. Sheldon, 136 N. Y., 1 ; Grainger v. Still, 187 Mo., 197; Gillette v. Tucker, 67 Ohio St.,106), and, even though the patient derives no advantage or bene- fit from his therapeutic measures, there is no pre- sumption that he did not exercise the proper amount of skill and learning. In other words, the fact that the physician's medical treatment or sur- gical operation was a failure does not justify draw- ing the conclusion that he was not careful and skil- ful (Tomer v. Aiken, 126 la., 114 ; Haire v. Reese, 7 Phila., 138). Judge Thayer (Haire v. Reese, 7 Phila., 138) : * ^ No presumption of the absence of proper skill and attention arises from the mere fact that the patient 38 The Doctoe iisr Court does not recover. . . . God forbid the law should apply any rule so rigorous and unjust as that to the relations and responsibilities arising out of this noble and humane profession." Former President Taft while sitting on the bench in the case of Ewing v. Goode (78 Fed., 442) said: *^A physician is not a warrantor of cures." If **a failure to cure was held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practise the heal- ing art, for they would have to assume financial liability for nearly all the 411s that flesh is heir to.' " An important principle of law governing the conduct of the physician and surgeon is that he must follow in a given case the established custom or practice of the profession in treating that par- ticular kind of case (Patten v. Wiggin, 51 Me., 594). The law deals mercilessly with those who for the purpose of experimentation deviate from the estab- lished mode of practice; that is to say, the phy- sician is held to methods which have been uni- versally accepted by the majority of the pro- fession. As was said in the well-considered case of Jackson v. Bumham (20 Colo., 532), *^ There must be some criterion by which to test the proper mode of treatment in a given case, and when a par- ticular mode of treatment is upheld by the con- sensus of opinion among the members of the pro- fession, it should be followed by the ordinary prac- CONTEACT OF THE PROFESSION 39 titioner, and if a physician sees fit to experiment with some other mode, he should do so at his peril. In other words, he must be able, in case of deleterious results, to satisfy the jury that he had reason for the faith that was in him, and justify his experiment by some reasonable theory. ' ' The physician and surgeon, then, acts at his peril in not following established practice, and, if he employs some other method than that which is generally followed, with an injurious result to his patient, such failure of his experiment will not be excused, regardless of the amount of skill he possessed (Patten v. Wiggin, 51 Me., 594; Jack- son V. Burnham, 20 Colo., 532). This rule on its face seems harsh and arbitrary, for its application and enforcement means that any advancement in the science of medicine and sur- gery must be at the risk of the individual mem- bers of the profession. To the profession this must be still more apparent when they look back over the various periods of medical and surgical history and see the marvellous progress which has been achieved by the experiments of the learned ones of the profession. But such is the law with certain modifications and it should be kept in mind by the physician and surgeon. The reason for the rule ,and a good statement of the law relating to this question is in the opinion of the court in Carpenter v. Blake (60 Barb. (N. Y.) , 488) . It was said, ^ ' Some standard, by which 40 The Doctor in Court to determine the propriety of treatment, must ISe adopted; otherwise experiment will take the place of skill, and the reckless experimentalist the place of the educated, experienced practitioner. * ^ If the case is a new one, the patient mnst trust to the skill and experience of the surgeon he calls ; so must he if the injury or the disease is attended with injury to other parts, or other diseases have developed themselves, for which there is no estab- lished mode of treatment. But when the case is one as to which a system" of treatment has been fol- lowed for a long time, there should be no de- parture from it, unless the surgeon who does it is prepared to take the risk, by his success, of the propriety and safety of his experiment. *^The rule protects the community against reckless experiments while it admits the adoption of new remedies and modes of treatment only when their benefits have been demonstrated, or when from the necessity of the case, the surgeon or physician must be left to the exerci'se of his own skill and experience. ' ' Ordinary and established practice means the recognized practice of the school which the phy- sician follows. It is his right, should his conduct be questioned, to have his actions tested by the laws and customs of the particular school to which he adheres. Thus, where a physician was sued for not properly treating a case, his conduct would not be judged by allopathic standards if he fol- lowed the homeopathic school (Force v. Gregory-, CONTKACT OF THE PEOPESSIOIT 41 63 Conn., 167), and the same rule would apply un- der reverse circumstances (Martin v. Courtney, 75 Minn., 255), but, where the treatment is the same the evidence of a physician of a different school has been held to be admissible (Grainger v. Still, 187 Mo., 197) . The term school is used in this con- nection to denote a recognized system of treating diseases and injuries, and must have rules of prac- tice (Nelson v. Harrington, 72 Wis., 591; Grainger V. Still, 187 Mo., 197). So where a person practises as a clairvoyant and tries to alleviate diseases by methods usually employed by such healers, he cannot justify his conduct on the plea that he was following the school to which he belonged. For such persons are held to the same degree of care and skill and learn- ing as a member in good standing of a recognized school (Nelson v. Harrington, 72 Wis., 591). The law does not distinguish between schools of medi- cine (White v. Carroll, 42 N. Y., 161), and in as- suming charge of a case the physician undertakes to treat it according to the rules of the school which he follows (Force v. Gregory, 63 Conn., 167 ; Patten v. Wiggin, 51 Me., 594). The principle of ordinary care likewise applies in giving proper instructions to the nurse or other person or persons in attendance on the patient. Failure to do so renders the physician liable if there are bad results due to his negligence (Beck V. German Klinik, 78 la., 696). It is incumbent upon the physician to exercise that degree of care 42 The Doctor in Court in instructing the attendants in cases where the patient needs attention in his ahsence, which he would if working himself upon the case (Pike v. Honsinger, 155 K Y., 201), and it is also his duty to instruct the patient as well as the nurse (Car- penter V. Blake, 60 Barb. (K Y.), 488). But there is no duty imposed upon the physician himself to nurse his iDatient (Graham v. Gautier, 21 Tex., 111). There is a correlative duty on the part of the patient to do as he is told; that is, he must co- operate with the physician and follow his instruc- tions and prescriptions (Haire v. Reese, 7 Phila., 138). If he refuses to do this and the physician cannot therefore discover the nature of the pa- tient's illness, or he is thwarted in an attempt to apply the proper means of remedying the com- plaint, then the physician cannot be held respon- sible for damaging results (McCandless v. McWha, 22 Pa. St., 261; Haire v. Reese, supra). The patient has a right to rely on the instruc- tions and directions which the physician gives him (Lawson v. Conaway, 37 W. Va., 159; 18 L. R. A., 627). As was said in the case of McCandless v. McWha (22 Pa. St., 261), ^^ A patient is bound to submit to such treatment as his surgeon prescribes, provided the treatment be such as a surgeon of ordinary skill would adopt or sanction. But if it be painful, injurious and unskilful, he is not bound to peril his health, and iDcrhaps his life, by submis- sion to it. It follows that before the surgeon can CONTEACT OF THE PkOFESSION 43 shift the responsibility from himself to the patient, on the ground that the latter did not submit to the course recommended, it must be shown that the prescriptions were proper and adequate to the end in view. ' ' Physicians who are attending clients with con- tagious diseases and visiting others who are not so infected must keep in mind that it is their duty to use due care in not carrying it from one patient to another; and that it is essential that they should take all measures to prevent this which reason and experience dictate as being best. If they take such precautionary measures as are necessary to pre- vent communication of the disease to one not im- plicated, they will not be liable for untoward re- sults (Piper V. Menifer, 51 Ky., 565). Extreme care should be taken by the physician in making his calls not to visit a patient should he have been obliged to attend one afflicted with a contagious disease, without having first properly sterilized himself. An excellent example of the serious conse- quences that are likely to follow a lack of care un- der such circumstances has been called to the at- tention of the writer. During an epidemic of smallpox in London a few years ago, a doctor who had vaccinated the whole staff of a large draper 's establishment there, complained to the physician from whom he had secured the vaccine that a num- ber of young women whom he had vaccinated had shown symptoms of erysipelas a few days after the 44 The Doctor in Court vaccination. They threatened to sue him for dam- ages. Being responsible for the trouble the doctor put the blame on the vaccine. The other physician knowing the vaccine was absolutely pure as it came from a government institute on the continent and as he had sold a great many thousands of tubes and had no similar complaints for the same lot, suspected that there was something wrong with this doctor. He inquired of the doctor if during the time he made the vaccinations he had been at- tending any obstetrical cases. The doctor admit- ted he had, and also admitted that among these cases he had had one case of puerperal fever. The other immediately charged him with not having complied with, the Parliamentary Act of having re- ported erysipelas to the medical officer of health for his district and charged him further with hav- ing been careless in going from a puerperal fever case to perform the operation of vaccination with- out having sterilized himself. When the doctor reached his office he found a notification from the government demanding an ex- planation as to why he had not reported a certain case of erysipelas which had broken out in a cer- tain draper's establishment. The penalties in Eng- land for not lodging information of any contagious diseases are very heavy, and this young doctor disappeared from London and his whereabouts were not known for a long time. He had quit his CONTEACT OF THE PeOFESSIOK 45 practice and settled down somewhere else. He feared the consequences of his negligence. There is a further duty on the physician of ad- vising his patient against an operation which he believes in the light of his best judgment to be in- judicious. ^'It seems to us to be the duty of a surgeon," said the court in Grramm v. Boener (56 Ind., 497), ^^when called upon to perform some surgical operation, to advise against it, if, in his opinion, it is unnecessary, unreasonable, or will re- sult injuriously to the patient. The patient is en- titled to the benefit of his judgment, whether asked for or not. If the surgeon, when called upon, should proceed to the performance of the opera- tion, without expressing any opinion as to its ne- cessity or propriety, the patient would have a right to presume, that, in the opinion of the surgeon, the operation was proper.'' In this case the patient was a man along in years and possessed of a nor- mal mind. He insisted contrary to the advice of his physician that a certain operation be performed. It was done. The court held that he relied on his own judgment and not that of his physician, from whom he could not therefore recover damages for deleterious results. There seems to be a very prevalent idea that if a physician is summoned to attend a case, he is obliged to go, but no such rule of law obtains, and the matter is entirely within his own discretion. However, once he has taken charge of a case, the doctrine of ordinary care applies in the matter of 46 The Doctor in Court attendance. If the condition of the patient is such that in the exercise of an honest judgment he be- lieves it necessary or if it would be reasonably ex- pected of him to continue his attendance, then the law imposes that obligation upon him. Of course, there is nothing to prevent a physician and his client making what contract they like regarding the attendance. It can be for a long or short pe- riod — even one visit; and in the absence of any special agreement the physician can, after giving reasonable notice, stop attending the patient, and y so doing he does not render himself answerable b his employer. The physician, of course, could not abandon a case in a crisis (Barbour v. Martin, 62 Wis., 536). On the other hand, if he is dis- charged by one in authority he would not be liable for the consequences of discontinuing his atten- tions. Generally, however, he must use reasonable care in deciding whether his visits are any longer necessary (Dashiell v. Grif&th, 84 Md., 363; Ballou V. Prescott, 64 Me., 305). In fine the duties and legal obligations of the physician and surgeon can be summed up in the saying of Sir Anthony Fitzherbert: ^^It is the duty of every artificer to exercise his art rightly, and truly, as he ought." (Further authorities: Amer- ican Digest (Century Edition), title, ^^ Physicians and Surgeons, '^ §§ 16-30; Vol. 22, American and English Encyclopgedia of Law, pp. 798-809; Vol. 30, Cyclopedia of Law and Procedure, pp. 1570- 1574.) CHAPTEE in CIVIL EESPON'SIBILITY OF THE PEOFESSION" It has been shown that the correlative duties of physicians and surgeons and their patients arise from the contractual relations of the parties, either by express agreements, or, as is more often the case, by implication of law from their conduct or acts. Certain duties are imposed upon the profes- sion. Failure to discharge these obligations in the ^ proper manner renders the professional man lia- ble to his patient if injury results. The basic prin- ciple of the doctrine is that one who engages to undertake the performance of any duty, trust, or employment agrees to do it with honesty, skill, and assiduity. The injured person has his option of suing in tort or contract (Goble v. Dillon, 86 Ind., 327). The principles of law which bear upon ques- tions growing out of an alleged dereliction of duty on the part of the physician and surgeon come un- der the division known as the law of negligence, y Negligence may be by errors of omission or comv^ mission. If one fails to do something which a rea- sonable man under like circumstances with regard to those things which ordinarily regulate the af- 47 48 The Doctor in Court fairs of man, would do ; or if he does some act which a reasonable and prudent man would not, then he is in the legal sense negligent, provided there is some duty or obligation left uncompleted. It would seem from an examination of malpractice cases that errors of omission are treated with greater leniency by the courts than errors of commission. Now there are various degrees of negligence known to the law. The degrees of care exacted under different conditions may be divided into three groups. First, there is the highest degree which it is possible for human beings to attain, where the slightest error renders the negligent party liable in an action for damages. For example, a common carrier of passengers is held to this highest degree of care, though as has been observed the physician and surgeon is not required to exercise this extraordinary degree of diligence. But he must employ th^^'nextde- gree, known as ordinary or reasonable care. (See the instructions to the jury in the case of Kendall V. Brown, 86 111., 387.) Lastly, we have what is termed gross negli- gence, which may be so wilful or wanton as to show an intent to harm some person, yet one may be grossly negligent without the element of malice entering his conduct. In England formerly the physician was consid- ered liable only so far as one who performs a service gratuitously was held amenable to the law, which was for failure to use the lowest degree of CiviLi Responsibility 49 care in the scale called gross negligence. A phy- sician at common law before the j^assage of the Medical Act (21 and 22 Victoria) could not sne to recover compensation for his services (Chorley V. Bolcot, 4 T. E., 317) ; though a surgeon was not subject to any such disability and could maintain an action for his fees. (See chapter on Remunera- tion.) Accordingly, surgeons as well as apothe- caries were held to the ordinary degree of care. (Shearman and Redfield on Negligence, 500.) The reason for not then holding the physician to the same degree of care as a surgeon was because his services were regarded as being rendered for an honorarium. The Roman law, however, did not recognize any ditference between physicians and surgeons, hold- ing that they must use ordinary care regardless of whether they were to be compensated or not. Such is the United States rule. The law in this country does not distinguish between physicians and sur- geons. They are alike subject to the same duties and legal obligations. Compensation is an imma- terial consideration. (See chapter on Remunera- tion.) There is an old and important principle of law that figures prominently as a defence in many cases where negligence is the gist of the action. It is called the doctrine of contributory negligence. Where a person is injured by reason of another's negligence, it must appear as a condition precedent to his getting judgment against the other that his 50 The Doctor in Couet own conduct was blameless and did not contribute materially to the cause of the injuries. For, if Ms negligence united with tbat of the defendant, he is barred from recovering damages. This rule with its limitations applies in those cases where it is sought to hold a physician and surgeon responsible for negligence or malpractice, and it may be taken as generally true that where the ]3atient does not co-operate with his physician, thereby injuring himself by his own wilful or negligent conduct, he cannot hold the practitioner responsible for the results to which he contributed (Hibbard v. Thompson, 109 Mass., 286; Grramm v. Boener, 56 Ind., 497 ; Haire v. Eeese, 7 Phila., 138 ; McCandless v. McWha, 22 Pa. St., 261). Accord- ingly it has been held that where a physician told a patient to visit him again and the patient failed to put in an appearance as directed, he could not hold the physician liable, because he was himself negligent (Jones v. Angell, 95 Ind., 376). By far the greater number of cases in which this question of contributory negligence plays a part has been where the patient has not faithfully discharged his duty of complying with the reason- able instructions' and directions of his physician as the law says he should (Haire v. Eeese, 7 Phila., 138 ; McCandless v. McWha, 22 Pa. St., 261) . The case given above is a good illustration. There is a harmonious line of decisions holding that if the patient either wilfully or negligently disobeys the instructions given him he is barred from recovery Civil Eesponsibility 51 (Geiselman v. Scott, 25 Ohio St, 86; Haire v. Reese, 7 Phila., 138 ; Whitesell v. Hill, 101 la., 629), and it makes no difference whether or not he was prevented from following the physician's direc- tions because of his condition (Geiselman v. Scott, 25 Ohio St., 86). In such cases the instractions and directions which the physician gives may be taken into consideration in determining the ques- tion of the patient's negligence (Geiselman v. Scott, 25 Ohio St., 86). There is also a presumption in favor of the members of the profession, in the absence of con- trary proof, that they were skilful and used due care (Jacksonville Street E. Co. v. Chappell, 21 Fla., 175; Leighton v. Sargent, 31 N. H., 119; Baird v. Morford, 29 la., 531; Haire v. Reese, 7 Phila., 138). In other words the burden of show- ing a want of the necessary skill, care and knowl- edge in the prescriptions, directions, and method of treatment must be proved at the trial by the patient in order to secure judgment against the physician. On the other hand the burden of prov- ing contributory negligence is on the defendant (Gramm v. Boener, 56 Ind., 497). There is, however, a class of cases in which the negligence of the patient follows that of the phy- sician and the injury done through the latter 's un- skilful or careless conduct is simply aggravated and made more serious. In a New York case (Car- penter V. Blake, 75 N. Y., 12), which was an ac- tion for malpractice, the defendant requested the 52 The Doctor in Court \ court to instruct the jury in substance, that if the plaintiff was negligent in any way, with or with- out guilt on the part of the defendant who attended her, and such negligence in a material degree con- tributed to the poor result, the defendant could not be held responsible. This charge was held to be erroneous because if there had been negligence on the part of the plaintiff subsequent to that of the defendant, the plaintiff's right of action had al- ready accrued and would not therefore be dis- charged. The court added that in any view the negligence of the patient following that of the phy- sician would go merely to mitigate the damages. So also in a case where the plaintiff's foot was crushed and the limb was amputated at the knee but failed to heal properly so that several inches of the bone protruded, it was held, the fact that the defendant refused to keep his leg elevated as directed, thereby causing hemorrhages, and negli- gently omitted to take medicine prescribed for him, did not defeat his right of action and his negligence would only go toward cutting down the amount of damages (Du Bois v. Decker, 130 N. Y., 325; see, also, Wilmot v. Howard, 39 Vt., 447). The negligence of the plaintiff then must be the proximate cause of the injury and inseparable from and contemporaneous with the negligence of the defendant in order to be used as a successful defence in an action for malpractice (Newhouse v. Miller, 35 Ind., 463; Lawson v. Conaway, 37 W. Va., 159), because if the negligence is unmixed and Civil Responsibility 53 can be distinguished, and the plaintiff can show that there was injury resulting solely from his lack of care, skill, and diligence, then he can recover. The court said in Hihhard v. Thompson (109 Mass., 286), commenting on the importance of this limitation to the ordinary rule, ^ ' . . . a phy- sician may he called to prescribe for cases which originated in the carelessness of the patient; and though such carelessness would remotely contribute to the injury sued for, it would not relieve the physician from liability for his distinct negligence, and the separate injury occasioned thereby. The patient may also, while he is under treatment, in- jure himself by his own carelessness, yet he may recover from the physician if he carelessly or un- skilfully treats him afterward and thus does him a distinct injury. In such cases, the plaintiff's fault does not directly contribute to produce the injury sued for." Another principle of law very much like this doctrine of contributory negligence is that of the assumption of the risk. The law says that where a person knows the dangers incidental to certain undertakings, he is by law deemed to have as- sumed the risk and consequently cannot complain if injury results. From this it would seem that a physician and surgeon can forestall malpractice suits against himself by warning the patient of un- pleasant possibilities and expressly stipulating with him that in such contingency he shall not be an- swerable (Nelson v. Harringi;on, 72 Wis., 591). 54 The Doctor in Court As most of tlie litigation in whicli the members of the profession have been involved have been in cases of dislocations, fractures, and amputations (McClelland on Civil Malpractice, 55), it is always best to tell the patient that a perfect result is by no means certain. If the physician states that he is not possessed of much knowledge of certain illnesses or injuries, and the patient then sees fit to hire him, he cannot afterward hold him to account for a lack of knowl- edge and skill which he knew the physician did not possess (Shearman and Eedfield on Negligence, 607). It must not, however, be supposed that this as- sumption of the risk will excuse the practitioner from liability when he does not use skill and care. This question was squarely raised in a very recent case before the Missouri Court of Appeals (Hales V. Eaines, 162 Mo. App., 46). The defendant, it appeared, undertook to treat the plaintiff's hand by the use of the X-ray, resulting in a bum which seriously injured the member. It was contended that the plaintiff had been warned by the defendant that the use of this appliance involved some dan- ger and by consenting to such treatment he as- sumed the risk and could not recover damages for the negligence of the physician. The court in up- setting this contention said: ^'Touching the matter of assumed risk with which alone we are con- cerned here, it appears quite clear that if, in the circumstances stated, the parties contract with Civil Eesponsibility 55 respect to the assumption of the risk from sucli danger as is involved in the use of the X-ray, a new appliance not well understood, the risk assmned is one other and distinct from that which is intro- duced into the case by the defendant's negligence. In other words, though the plaintiff should be re- garded as having assumed by express agreement such risks as attend the employment of the X-ray, this agreement essentially implied a careful and skilful application thereof on the part of the de- fendant. We deem it contrary to the precepts of public policy to declare such agreement valid in the full measure of its scope and entail upon the plaintiif , as within it, the consequences of the de- fendant's negligence in exposing his hand nine separate times within one-half inch of the tube; for consent concerning such matters avails noth- ing unless due care and skill is employed by the physician." (See, also, Commonwealth v. Pierce, 138 Mass., 165; State v. Gile, 8 Wash., 12.) This case must not be confused with that of Gramm v. Boener, given heretofore, where a phy- sician advised his patient against an injudicious operation, and the plaintiff, relying on his own judgment, insisted upon having it performed. The operation, though unsuccessful, was performed by the physician with due care and skill, and in the suit which followed the plaintiff was not allowed to recover damages. The question now arises, if the physician and surgeon cannot be successfully sued for negligence 56 The Doctok in Coubt or malpractice when the negligence of the patient blended with his o^vn carelessness or recklessness, can he be held responsible for the negligent con- duct of a third person having some connection with the case 1 The answer to this depends on the rela- tionship of the parties. If there was no business relationship as that of agency or partnership between the physician and the negligent third person, then he cannot be held answerable for that person's conduct (Myers v. Holbom, 58 N. J. L., 193 ; Hitchcock v. Burgett, 38 Mich., 501 ; Keller v. Lewis, 65 Ark., 578). Thus where a surgeon in- formed his patient that he was going away for two weeks and said that a certain surgeon would treat the case while he was absent and the latter was negligent in his treatment of the patient, the court said that the former surgeon would not be responsible for the injury done the patient in his absence if no business relationship existed between the two surgeons (Keller v. Lewis, 65 Ark., 578). The converse of this proposition of law is also true: if the relationship of agency or partnership can be shown to exist they are both liable to the patient if the negligent third party acted within the scope of his authority (Hancke v. Hooper, 7 C. and P., 81; Hess v. Lowrey, 122 Ind., 225; Langdon v. Humphrey, 9 Conn., 209 ; Hyme v. Er- win, 23 S. C, 226). The negligence of the agent or partner is imputed to the other. The liabihty growing out of these relationships is not peculiar to physicians and surgeons alone, Civil Eesponsibility 57 but is applicable to all persons between whom sucli relationships are manifest. It is a cardinal rule of the law of agency that the principal is liable for the torts of his agent committed in the course of Ms employment. The connection between the law of agency and the law of partnership is very close, as a partner can bind his co-partner by acts which are within the limits of the objects and purposes of the partnership. It follows that there is mutual liability among partners for their torts committed in the scope of their vocation or business, but if a partner or agent goes on a ^^ frolic of his own" the others are not responsible for the results. There would be no liability on the part of a physician for the negligence of nurses in a hospital over whom he had no authority (Sanderson v. Holland, 39 Mo. App., 233; Baker v. "Wentworth, 155 Mass., 338). " Negligence of a third person contemporaneous with that of the defendant is no defence (Cooley on Torts, 684) ; that is to say, contributory negli- gence on the part of another, not the patient, con- curring with that of the physician or surgeon hav- ing charge of the case cannot defeat a recovery of damages by the patient against the physician (San- derson V. Holland, 39 Mo. App., 233). For illus^ tration: where a physician wrote a prescription which by lapsus calami had pulv, instead of campJi, following opii, and the patient took it and died, it was held in a suit against the physician for mal- practice that the fact that the druggist who fiUed 58 The Doctok in Couet the prescription may have been negligent in not noticing the mistake, was no defence to the phy- sician who wrote it (Mnrdock v. Walker, 43 111. App., 590). There is a principle of law long established that a person is chargeable with the natural and prob- able consequences of his acts. The physician and surgeon is no exception to this rule. The mem- bers of the profession in their treatment of patients and their application of drugs and the remedial ap- pliances are bound to know the results of their ac- tions and are answerable for negligence if the con- dition of the patient is such that, by exercising the professional skill they are presumed to have, they would know such results would in all probability follow (Du Bois V. Decker, 130 N. Y., 325). But where they have no knowledge of the idiosyncrasies of the patient, they cannot be held for injurious results when they exercise ordinary care and skill. So where an anesthetic is admin- istered the physician cannot be made accountable for results due to the peculiar temperament of the patient of which he was not aware (Bogle v. Wins- low, 5 Phila., 136). If the courts laid down a more strict rule in this respect, the nerve of the phy- sician might be shaken or his judgment impaired by the fear of accountability just at a time when his mental activity must be free and undisturbed, that the patient may be benefited. In the chapter on the Contract of the Profession it was said that there is a duty on the part of the Civil Eespoksibility 59 physician to take care not to carry a contagions dis- ease from one patient to another. From a very re- cent decision of the supreme conrt of Washington (Helland v. Bridenstine, 55 Wash., 470; 104 Pac. E., 626), it appears that there may be liability for commnnicating diseases through the agency of un- clean instruments. In the case in question the plaintitf sought the advice of the defendant be- cause of a nervous trouble with which she had been afflicted for several years. The defendant's treatment not affording the desired relief, he told her it was his opinion that she had some disorder of the genital organs and he would examine her in his office. This he did, using a speculum and probe which he took from a drawer close by. The instruments were wrapped in a towel, the defend- ant using them as he took them out. Within the time after this usual for gonorrhea to generate, the plaintiff had pains and inflammation of the parts accompanied by a discharge. The defendant treated her for some time until finally another physician was called in, who diagnosed the disease as gonorrhea. Plaintiff also testified she had not had intercourse with her husband for several weeks prior to the examination, and the only way she could have contracted the disease was from the in- struments of the defendant. The defendant testi- fied that the instruments were always washed in a mercuric iodin solution and soap and hot water besides being sterilized by boiling in hot water be- fore they were used. There was a verdict for the 60 The Doctok in Couet plaintiff. The court held there was sufficient evi- dence to submit the case to the jury. An action will lie against a physician if he fails to use ordinary care and skill in diagnosing a case which has been committed to him for treatment or merely for the purpose of making an examination for information, as where a man who was engaged to be married was examined at the request of the father of his fiancee, and the physician making the examination said he was afflicted with a venereal disease, which erroneous diagnosis resulted in the breaking off of the engagement, the court held that damages could be recovered from the physician (Harriott v. Plimpton, 166 Mass., 585). It mad© no difference in the above case that the physician was hired by a third person. While the duty of being faithful, skilful, and careful in dealing with the patient rests substan- tially on the ground of contract, it would seem from this case and those cited elsewhere that the duties of the physician and the liability attendant on a failure to discharge those duties properly may arise from the mere undertaking or relationship of doc- tor and patient. It is a question of fact for the jury to deter- mine as to whether or not due care and skill w^ere used by the physician in making the diagnosis (Harriott v. Plimpton, supra). An erroneous di- agnosis does not necessarily give a right of action to the injured party, but must have been the result of negligence or a want of skill on the part of the Civil Eesponsibility [61 physician, though a wrong diagnosis followed by improper treatment is good ground for an action for malpractice (Smith v. Overby, 30 Ga., 241). A breach of the relationship between a phy- sician and his patient by the deceit of the former may render him liable to his patient. An interest- ing case of this description arose a few years ago in Michigan (De May v. Eoberts, 46 Mich., 160). At the trial it appeared that the patient lived some distance from the physician. It was a confinement case; the doctor was summoned; the night was disagreeable and travelling over the road on foot was the only way in which the physician could reach the patient's house. Illness and overwork prompted the doctor to take with him an unpro- fessional man to assist him in carrying necessary articles. To the husband of the patient the doc- tor explained that he had brought a friend along to aid in carrying his things. The friend was not known to either the hus- band or the patient, but they supposed he was a doctor or a student and made no objection to his being present in the house, which had only one room. His conduct and manner was not objec- tionable. The Supreme Court affirmed the judg- ment of the lower court against the physician and his non-professional assistant, saying amongst other things: ^^It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most 62 The Doctok in Coukt sacred one, and no one had a right to intrude un- less invited, or because of some real and pressing necessity, which it is not joretended existed in this case. The x)laintiff had a legal right to the privacy of her apartment at such a time, and the law se- cures to her this right by requiring others to ob- serve it and to abstain from its violation. In ob- taining admission at such a time and under such circumstances without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterward sustained from shame and mortification upon discovering the true character of the defendants. ' ' The performance of a surgical operation on a patient whose consent has not been obtained will render the operator liable in damages to that per- son, as will be seen by the cases hereinafter given. The court of last resort in Illinois (Pratt v. Da^ds, 118 m. Ai3i3., 161) said in a very late case : ^^ Under a free government, at least, the free citizen's first and greatest right, which underlies all others — the right to the inviolability of his person ; in other words, the right to himself — is the subject of uni- versal acquiescence, and this right necessarily for- bids a surgeon or physician, however skilful or eminent, who has been asked to examine, diagnose, advise and prescribe (which are at least first steps in treatment and care), to violate, without permis- sion, the bodily integrity of his patient by a major or capital operation, placing him under anesthetics Civil Responsibility 63 for that purpose, and operating upon him without his consent or knowledge. ' ' A text writer has this to say (1 Kinkhead on Torts, 375) : ^^The patient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances living without it. Such is the natural right of the individual, which the law recognizes as a legal one. Consent, there- fore, of an individual, must be either expressly or impliedly given before a surgeon has the right to operate. ' ' Naturally consent in most cases is inferred from the circumstances unless the patient was deceived (Pratt V. Davis, 224 111., 300; 7 L. R. A. (N. S.), 609). It has been held where the husband of a pa- tient who had a dangerous disease, had the patient taken some little distance from their home and put under the care of a physician, and a few weeks afterward the physician operated on her despite the fact that the husband's consent had not been given to that particular operation, that the physi- cian was justified and did not exceed his authority in performing the operation if in the exercise of his discretion he believed it necessary (McCallen v. Adams, 19 Pick. (Mass.), 333). In another case (Pratt v. Davis, 224 HI., 300; 7 L. R. A. (N. S.), 609), the patient was suffer- ing from a contracted and lacerated uterus, and the lower portion of the rectum was diseased. To alle- viate these difficulties a minor operation was per- formed with the consent of the patient's husband. 64 The Doctok in Court This operation was ■ansuccessful. The husband was requested to bring his wife to the physician again for treatment, which he did. She was oper- ated on and her uterus and ovaries removed. The court held that the husband ^s consent was not shown by these circumstances. Again where a woman was operated on for cancer of the breast and the husband believed it to be a tumor and consented to the operation, but ex- pressly stated that if the growth was a cancer of the breast he did not want it removed, it was held that as it appeared the wife was aware she had cancer of the breast, the physician could not be held liable. Said the court: ^^If she consented to the operation, the doctors were justified in per- forming it, if, after consultation, they deemed it necessary for the preservation and prolongation of the patient's life. Surely the law does not author- ize the husband to say to his wife, ^You shall die of cancer; you cannot be cured, and a surgical operation, affording only temporary relief, will re- sult in useless expense. ' The husband has no power to withhold from his wife the medical assistance which her case might require'' (State use of Jan- ney v. Housekeeper, 70 Md., 162). Gases, of course, will arise demanding quick ac- tion on the part of the physician to preserve the life or health of the patient, when there will be no opportunity to secure consent to perform an opera- tion from those who are naturally consulted in such matters. Perhaps a person meets with an ac- Civil Responsibility 65 cidental injury and is taken to a private physician close by. The injured person may be intoxicated, or unconscious from the injury. He may be a minor ; there may be no means of identifying him. An operation is imperative. The doctor is justified in performing the operation if in the light of his best judgment it is necessary. If he uses the req- uisite skill and care in so doing, he will not be responsible for the results. As the physician or surgeon may be subse- quently criticised or even sued for malpractice, it is best for him to do everything to protect himself. Thus in the case of a private physician it would be a good precautionary measure for him to call in another member of the profession in consultation. Any case must be proved from the attending cir- cumstances, and other evidence besides that of the defendant himself in his behalf is invaluable. Again, during an operation already authorized, new conditions may be discovered or may develop in the most unexpected manner, and in such emergency cases the physician will be justified in performing an operation without any consent, if the operation is necessary and expedient (Pratt v. Davis, supra; Mohr v. Williams, 95 Minn., 261; 1 L. R. A. (N. S.), 439). It has, however, been de- cided that the fact of a doctor's refusing assist- ance which was offered by other members of the profession did not mean that he failed to use the skill and care required (Potter v. Warner, 91 Pa. St., 362). 66 The Doctor in Court In all these cases of alleged unautliorized sur- gical operations the burden of proving that the operation was not justified by consent of the proper person rests upon the plaintiff. There is also a prima facie presumption that it was performed with care and skill in the belief that it was proper (State use of Janney v. Housekeeper, 70 Md., 162). The criterion of careful conduct in a given case, as was stated at the outset of this chapter, is that of the usually prudent man acting under like cir- cumstances. It is not the opinion of the individual and therefore it is ordinarily no defence to an ac- tion for negligence that the man acted according to his best judgment. There is, however, a well- recognized variation from this general principle or rule of law. It appears in cases involving ques- tions purely of theory or opinion or judgment. Judge Jaggard, in Staloch v. Holm (100 Minn., 276; 9 L. R. A. (N. S.), 712; 111 N. W., 264), after stating that malpractice cases may come withia this exception to the general rule, said: ^'A physician entitled to practise his profession, possessing the requisite qualifications, and applying his skill and judgment with due care, is not ordinarily liable for damages consequent upon an honest mistake or an error of judgment in making a diagnosis, in pre- scribing treatment, as in determining upon an oper- ation, where there is a reasonable doubt as to the nature of the physical conditions involved, or as to what should have been done, in accordance with recognized authority and good current practice. '' Civil Eesponsibility 67 It is important to remember that this exception is not applicable to all acts which a physician and snrgeon may do in his professional capacity. The point of difference lies here. Let ns again quote from Judge Jaggard's learned opinion. * ' There is often a fundamental difference in malpractice cases between mere errors of judgment and negli- gence in previously collecting data essential to a proper conclusion or in consequent conduct in the subsequent selection and use of instrumentalities with which the medical man may execute his judg- ment. In some matters, medicine is a science ; in others, an art. Generally the exception governs cases in which it is a science; the rule, cases in which it is an art. If, for example, a physician certifies that a man is insane without having made an examination, his negligence is of fact and not all of science. But a medical man is not bound to form a right judgment (as to sanity) so as to be liable to an action if he does not (Crompton, J., in Hall V. Semple, 3 Fost. and F., 337; Williams v. Le Bar, 141 Pa., 149; 21 Atl., 525). ^^When the physician is actually operating, he is employing surgery as an art; and if, for exam- ple, he uses an old rusty saw (Young v. Fuller- ton, reported in McClelland on Civil Malpractice, p. 253), or if he operate on the wrong arm (Sul- livan V. McGraw, 118 Mich., 39; 76 N. W., 149), or sew up a sponge in an abdomen he has opened (Gillette v. Tucker, 67 Ohio St., 106; 93 Am. St. Bep., 639 ; 65 N. E., 865), his wrong concerns phys- 68 The Doctor ix Court ical facts, and has fairly been held to be governed by ordinary principles of negligence. Where, how- ever, dne diligence and skill have been employed in ascertaining the essential preliminary information for an opinion whether a surgical operation should be performed or not, the formation of the judg- ment in accordance with appropriate scientific knowledge, in a case of reasonable doubt, is within the exception. One reasonable justification for this exception in many cases is the elementary prin- ciple that, when a man acts according to his best judgment in an emergency, but fails to act ju- diciously, he is not chargeable with negligence. The act or omission, if faulty, may be called a mis- take, but not carelessness. (See Brown v. French, 104 Pa., 604.) Physicians, in the nature of things, are sought for and must act in emergencies and, if a surgeon waits too long before undertaking a necessary amputation, he must be held to have known the probable consequences of such delay, and may be held liable for the resulting damage (Du Bois V. Decker, 130 N. Y., 325; 14 L. E. A., 429; 27 Am. St. Eep., 529; 29 N. E., 313; Martin V. Courtney, 75 Minn., 255; 77 K W., 813). ^'Physicians and surgeons," still following Judge Jaggard's words, ''deal with progressive, inductive science. On two historic occasions the greatest surgeons in our country met in conference to decide whether or not they should operate on the person of a President of the United States. Their conclusion was the final human judgment. Civil Responsibility 69 They were not responsible in law, either hnman or divine, for the ultimate decree of nature. The same tragedy is enacted in a less conspicnons way every day in every part of the country. The same principles of justice apply. Shall it be held that in such cases, where there is a fundamental differ- ence among physicians as to what conclusion their science applied to knowable facts would lead to, then what they with their knowledge, training, and experience are unable to decide, and what, in the nature of human limitations is not susceptible of certain determination, shall be autocratically adjudged by twelve men in a box, or by one man on the bench, or by a larger number in an appel- late court, none of whom are likely to have the fit- ness or capacity to deal with more than the ele- ments of the controversy?" The law relating to the disposal of dead bodies and the mutilation thereof is a subject with which every practitioner should be familiar. Certain relatives of the deceased have rights and privileges in this connection which cannot be interfered with, and any unjustifiable mutilation of the corpse will render that person legally responsible to the rela- tives. Accordingly, where a child died in a hos-f pital and an unsanctioned autopsy was performed, it was held that the father could maintain an ac- tion against the doctor who mutilated the dead body (Burney v. Children's Hospital, 169 Mass., 57; see, also, Darcy v. Presbyterian Hospital, 95 70 The Doctor in" Court N. E., 698) ; and where a husband did not consent to the performance of an autopsy upon the body of his wife he recovered damages for injury to his feelings (Foley v. Phelps, 37 N. Y. Supp., 471). A curious legal point has been brought out by this class of cases ; for a dead body is not regarded by the law as personal property, and it was there- fore at one time held that, this being the fact, no cause of action would lie for the negligent or inten- tional mutilation of the corpse (Griffith v. Char- lotte, etc., R. R. Co., 23 S. C, 25). This was true under the ecclesiastical law, as a body was deemed to belong to the church, and the rule that there can be no property in a dead body holds good in Eng- land (2 Bl. Comm., 429; Williams v. Williams, 20 Ch. Div., 659), as well as in the United States (Hackett v. Same, 18 R. I., 155), though in both countries a corpse is regarded as quasi-property and the courts have recognized the right of posses- sion by the relatives of the body together with the right to sue for wrongful acts against the body (Queen v. Fox, 2 Q. B., 24). Said Mr. Justice Potter, delivering the opinion of the court in Pierce v. Swan Point Cemetery (10 R. I., 227) : * ^ That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by Civil Eesponsibility 71 some one toward the dead ; a duty, and we may also say a right, to protect from violation; and a dnty on the part of others to abstain from violation ; it may therefore be considered as a sort of quasi- property, and it would be discreditable to any sys- tem of law not to provide a remedy in such a case. ' ' The court of New York (Foley v. Phelps, 1 App. Div., 551) expresses itself in this manner: i i r£-j^^ right is to the possession of the corpse in the same condition it was when death supervened. It is the right to what remains when breath leaves the body. ' ' It is not an uncommon thing for individuals to will or sell their bodies in the interests of science. While the courts do not look with favor upon per- sons doing this, they see the necessity for students and members of the profession having bodies to dissect, and provision has been made therefor in many States by the passage of so-called anatomy acts. Most of these enactments are of compara- tively recent origin, it not being very long ago that bodies for dissection had to be procured in a sur- reptitious manner. The method of Stevenson's body-snatcher was often resorted to. In England a person has no right to dispose of Ms body, though in this country he has some au- thority as to its disposition. Of course, where the dissection is done by sanc- tion of law or with the consent of the relatives who have a right to the body, the mutilation is justifiable and the physician not responsible. Where death is 72 The Doctor in Couet sudden or under suspicious circumstances and the cause not ascertainable with any degree of cer- tainty without an autopsy, a post-mortem examina- tion for reasons of public policy becomes lawful, regardless of whether or not the relatives assent, and the physician under such circumstances would not be liable for making his investigation in a sci- entific manner. The relatives from whom permission must be obtained to perform an autopsy and the order in which they may take the dead body depends upon the nearness of the relationship. The law recog- nizes the right of the surviving husband or wife as paramount, then the children, next the parents of the deceased, and so on to the next of kin following the rules governing the descent of personalty. The nearer the relationship, the stronger the right (Larson v. Chase, 47 Minn., 307). It has been stated in various places in this and preceding chapters that certain questions arising in cases of negligence and malpractice are matters of fact for the jury to decide, but such questions may be said to be mixed questions of law and fact. For it is incumbent on the court in every case to state the law of the subject-matter in controversy. The jury must be guided by these instructions in reach- ing a conclusion. Thus in a case in which the issue is whether or not ordinary care, skill, and diligence was exer- cised by the physician, the court must tell the jury Civil Responsibility 73 what constitutes these elements as the authorities define them (Teffi v. Wilcox, 6 Kan., 46). If the court does not pronounce the law correctly, the ag- grieved party may usually secure a new trial. In the words of Judge Manly, of the supreme bench of North Carolina (Woodward v. Hancock, 52 N. C, 384), **What amounts to reasonable skill and care belongs to a class of questions which are said to be compounded of law and fact. In this class stand reasonable time, due diligence, legal provoca- tion, probable cause, and the like. A division of the question in such cases between the court and jury is now considered settled; and, therefore, where there is a state of facts concerned or proved, it becomes the duty of the court to draw the con- clusion as matter of law. ' ' The law gives the benefit of doubt in cases of negligence and malpractice to the defending phy- sician, and many legal presumptions which have been spoken of are raised in his favor. The law will presume, until contrary proof has been ad- duced by the patient, that care and skill were used by the physician in his treatment, and the burden of proof is upon the plaintiff to show that the phy- sician was negligent or unskilful. This does not hold true in cases where the acts or omissions to act are of such a nature that negligence can be pre- sumed from proof of the results. Thus in a case where a physician did not dis- cover a very severe rupture of the perineum after repeated examinations with the express purpose of 74 The Doctoe in Court such a discovery, his negligence was held to be ac- tionable (Lewis V. Dwinell, 84 Me., 497). Gren- erally, however, there is no presumption of a want of knowledge, skill, and care, where the treatment is nnsuccessful and results unsatisfactory (Doyle V. Owen, 150 111. App., 415; Pettigrew v. Lewis, 46 Kan., 78 ; Bonnet v. Foote, 47 Colo., 282), unless the injury is so manifest as to leave no doubt of the negligence of the physician. Under such cir- cumstances affirmative evidence by the plaintiff is dispensed with. In a case in which a surgical oper- ation was performed upon the patient's eye for strabismus, prior to which the patient's eyesight had been good, but afterward was not so strong, the court decided there could be no presumption of mal- practice from the condition of the patient's eyes subsequent to the operation (Pettigrew v. Lewis, 46 Kan., 78). Where a physician is accused of negligence alone* evidence to show his skill and competency is not admissible in evidence for the reason that such a question is not before the court for determi- nation (Baker v. Hancock, 29 Ind. App., 456). With regard to the weight of the evidence in tort cases, within which class, as we have seen, come civil suits for negligence and malpractice, the rule is different from that in criminal matters. In the latter it is necessary, in order to secure the convic- tion of the defendant, to show beyond a reasonable doubt or to a moral certainty the truth of the crime Civil Kesponsibility 75 charged. This high standard does not apply in civil cases. It is only necessary in such matters for the plaintiff to demonstrate by a preponderance or superior weight of evidence that his contentions are true. Like the double- jeopardy plea in criminal cases, there is an analogous rule in civil matters that a person can only recover damages once for one and the same cause of action; and this applies to mal- practice cases where a judgment is conclusive for all injuries direct or indirect growing out of the unscientific or negligent conduct of the physician for which suit was brought and judgment secured. The question of how far an action for compensation decided in favor of the physician will act as a bar to a suit for malpractice based upon the neglect or carelessness alleged to have occurred at the time of the services for which the physician sues for his fee, is taken up in the chapter on Remuneration. The decisions in malpractice cases are by no means uniform, and from those that have been here given one is led to the conclusion that the way of the physician is not without its pitfalls and ob- structions. He *4s liable to have his acts mis- judged, his motives suspected, and the truth col- ored or distorted, even where there are no dis- honest intentions on the part of his accusers" (Upton, Judge, in Williams v. Poppleton, 3 Ore., 139). The testimony adduced in malpractice cases 76 The Doctok in Court must necessarily be that of the family, the friends of the patient, or the patient himself, and therefore snch testimony is generally colored and biased by reason of an interest and partisanship not un- natural. The physician may himself be the only witness for his own defence. The hypothetical questions to the experts for the plaintiff must necessarily be founded on the un- reliable and unsatisfactory evidence of the plain-, tiff's prejudiced witnesses. The court of Minne- sota, after noting these things, said: '^He is con- fronted by other uncertainties in testimony greater than those of the human constitution, however fear- fully and wonderfully we may be made or act, and greater than those of physical science, however elusive it may be. He is faced by the eccentricities of medical experts. We have no inclination to share in the prevalent and intemperate denuncia- tion of their ujireliability and veniality. But if every verdict mulcting a reputable physician in damages must be sustained if any of his profes- sional brethren can be induced to swear that, as- suming the testimony of the family and friends of the patient to be true, the physician has made a mistake of judgment, or has been guilty of unsci- entific practice, then the profession would be one which ^ unmerciful disaster follows fast and follows faster.' " (Staloch v. Holm, 100 Minn., 276; 111 K W., 264; 9 L. E. A. (N. S.), 712. For further authorities upon the .Civil Responsibility of the Civil Eesponsibility 77 Profession see Vol. 39, American Digest (Century Edition), title, * ^ Physicians and Surgeons," §§ 31- 48; Vol. 22, American and English Encyclopaedia of Law, pp. 798-809; Vol. 30, Cyclopedia of Law and Procedure, pp. 1574-1592.) CHAPTER IV. EEMUNEEATION In the acropolis moTind in Susa in ancient Elam a code of laws was nneartlied in 1902, which is the oldest known code extant, being that of Hamurabi, King of Babylon, who reigned 2,250 years before Christ. Many sections of this code relate to phy- sicians and snrgeons, shelving that those who fol- lowed the profession in the time of Abraham were men of dignity and standing in the commnnity. It is interesting to note that the majority of these pro- visions deal with the compensation which the phy- sician and surgeon was to receive for his services. These sections of the code follow : 206. ^ ^ If a man strike another man in a qnarrel and wonnd him he shall swear: ^I struck him with- out intent, ' and he shall be responsible for the phy- sician. ' ' 215. ^'If a physician operate on a man for a severe wound (or make a severe wound upon a man) with a bronze lancet and save the man's life ; or if he open an abscess (in the eye) of a man with a bronze lancet and save that man's eye, he shall receive ten shekels of silver (as his fee)." 78 Eemuneeation 79 216. ^^ If he be a freeman, he shall receive five shekels of silver.'^ 217. ^'If it be a raan^s slave, the owner of the slave shall give two shekels of silver to the phy- sician. ' ' 221. ^^If a physician set a broken bone for a man or cure his diseased bowels, the patient shall give five shekels of silver to the physician. ' ' 222. ^' If he be a freeman, he shall give three shekels of silver. ' ' 223. ^^ If it be a man's slave, the owner of the slave shall give two shekels of silver to the phy- sician." (Code of Hamnrabi, King of Babylon, by Prof. Robert F. Harper.) Before the passage of the Statute of 21 and 22 Victoria, Chapter 90, Section 31, the '^Medical Act" so called (passed in 1858), a physician in England could not maintain an action under the common law for his fees (Peck v. Martin, 17 Ind., 115; Chorley v. Bolcot, 4 T. R., 317), except in those cases where there was an express contract. They were presumed to work for an honorary re- ward and not for remuneration. The reason for this was because in early times a great many monks acted as physicians and they could not recover their fees, for they were incapable of possessing any property or bringing an action in court (Willcock on MedicalLaw, 112). They were, in the eyes of the law, civiliter morhii. But this custom did not prevail among surgeons who were allowed to recover for their services. In 80 The Doctoe in Coukt Chorley v. Bolcot (4 T. E., 317), wliicli was an ac- tion for compensation, Lord Chief Justice Kenyon said: ^'I remember a learned controversy some years ago as to what description was intended by the Medici at Eome, and it seemed to have been clearly established by Dr. Mead, that by those were not meant physicians, bnt an inferior degree amongst the professors of that art, snch as answer rather to the descrijDtion of surgeons amongst us; but at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right ; and it is much more for the credit and rank of that honorable body, and perhaps for their benefit also, that they should be so considered. It never was yet heard of that it was necessary to take a receipt upon such an occa- sion; and I much doubt whether they themselves would not altogether claim such a right as would place them upon a less respectable footing in so- ciety than that which they at present hold. ' ' In the United States this rule that the render- ing of services when requested raises no implied promise to pay therefor has never obtained and physicians have been allowed to sue for remunera- tion (Vilas V. Downer, 21 Vt., 419) ; in fact, the law in this country implies a promise to compen- sate when a physician treats a patient (Peck v. Hutchinson, 88 Iowa, 320 ; Crane v. Baudouine, 65 Barb. (N. Y.), 261; Green v.Higenbotam, 3 K J. L. J., 60). But there are nevertheless certain con- ditions or qualifications with which the physician REMUlTERATIO]Sr 81 and surgeon must comply, or his failure may be suc- cessfully pleaded in bar to an action for compensa- tion. In many States statutes have been passed expressly prohibiting one who has not fully com- plied with the laws regulating the practice of medi- cine and surgery from recovering his fee for serv- ices, and it has also been held by the courts that an unauthorized practitioner cannot recover remunera- tion (Murray v. Williams, 121 Ga., 63 ; Orr v. Meek, 111 Ind., 40). There is, however, in a suit for com- pensation a presumption that the physician is duly licensed (Chicago v. Wood, 24 111. App., 42; Mc- Pherson v. Cheadell, 24 Wend. (K Y.), 15). In an action for compensation the physician does not have to show that his treatment cured or benefited the patient (Cotnam v. Wisdom, 83 Ark., 601; 12 L. E. A., 1089). The court of Wisconsin commenting on this said: ^^That is not at all the test. So that a surgical operation be conceived and performed with due skill and care, the price to be paid therefor does not depend on the result. The event so generally lies with the forces of nature that all intelligent men know and understand that the surgeon is not responsible therefor. In the absence of express agreement, the surgeon who brings to such services due skill and care earns the reason- able and customary price therefor, whether the out- come be beneficial to the patient or the reverse" (Ladd V. Witte, 116 Wis., 35). So if a physician uses due care, yet mistakes the nature of the complaint from which the patient 82 The Doctor in Couet suffers, lie can notwitlistanding recover compensa- tion (Ely V. Wilbur, 49 N. J. L., 685) ; but, on the other hand, if he fails to use ordinary skill he will be precluded from getting anything for his services (Logan V. Field, 192 Mo., 54 ; Howell v. Goodrich, 69 111., 556), though it has been held that if a phy- sician is guilty of negligence or malpractice, he can, nevertheless, recover compensation less the amount of damage caused by his conduct (Whitesell v. Hill, 101 Iowa, 629; 37 L. R. A., 830). Where a physician, upon undertaking the treat- ment of a case, stipulated with his patient that if he did not cure him he was to receive no pay, it was held that he could not recover either for his treatment or medicines unless he could show the contract, as far as he was concerned, had been per- formed according to its terms and the patient cured' (Smith V. Hyde, 19 Vt., 54). The case of McKleroy v. Sewell (73 Ga., 657) holds that if a physician is in such a state of alco- holic intoxication as to prevent proper treatment, this fact will be a good defence to an action for compensation provided the plaintiff did not assume the risk, that is, know of the fact of intoxication or a tendency thereto when he employed the phy- sician. From the excerpt of the code of Hamurabi given at the beginning of this chapter it is patent that the physician practising in those times was permitted to charge the rich man more for his services than he did the poor man. During Henry VT's reign Eemunekation 83 tlie physicians in England had rnles regarding compensation. The poor man was treated free, and ^^in no case was the physician to charge excessive fees, but to stndy to fit his fee to the patient's purse, and measurably after the deserving, of his labor. ' ' In the 14th century a specialist in the treat- ment of fistula. Dr. John Ardern, if he had a *^ worthy man and great" for a patient and cured him, charged 100 marks ^'with robez and feez of an hundred shillyns terme of lyfe, by year.'' He would take less ^'of lesse men without feez." ^' Never in alle my lyfe toke I lesse than an hun- dred shillyns for cure of that sickness. " It is said of him that after bargaining with a patient regard- ing the fee he was to receive, he took security for the payment (Philip Hale in the Boston Herald). How much regard to-day can be had for the pa- tient's purse by the members of the medical profes- sion is a mooted question. On the point of whether or not it is allowable for the physician to graduate his professional charges in accordance with the patient's ability to pay the decisions are muddy, some holding the financial condition of the patient to be a proper subject for inquiry in a suit by the physician for compensation (Succession of Haley, 50 La. Ann., 840), while others hold the contrary view (Robinson v. Campbell, 47 la., 625). For as was said by the court in Robinson v. Camp- bell (47 Iowa, 625), '^ There is no more reason why this charge should be enhanced on account of the 84 The Doctok in Court ability of the defendants to pay than that the mer- chant should charge them more for a yard of cloth, or the druggist for filling a prescription, or a la- borer for a day ^s work. ' ' The Alabama court, hold- ing this same view (Morrissett v. Wood, 123 Ala., 384), said: ^'The cure or amelioration of disease is as important to a poor man as it is to a rich one, and, prima facie, at least, the services rendered the one are of the same value as the services rendered to the other. ^' Notwithstanding this, it seems in those cases where there is evidence of a custom long established among the members of the profession that their services are rendered with a view to charging their patients according to their circumstances and po- sition in life, the courts consider that the services of physicians are accepted in contemplation of such custom, and fees so graduated may be recovered (Cotnam v. Wisdom, 83 Ark., 601; Morrissett v. Wood, 123 Ala., 384) . So in proving the true value of his services, evidence of the customary and usual charges in the neighborhood or locality in which the physician practises is admissible (Jonas V. King, 81 Ala., 285), and that his rates were well known by persons in that locality, including the de- fendant (Paige V. Morgan, 28 Vt., 565). Such evi- dence is admissible on the physician's behalf to show the amount the defendant impliedly agreed to pay (Paige v. Morgan, 28 Vt., 565). Yet where it appears that the custom of charg- ing the patient with an eye to his financial standing Remunekation 85 is in vogue, but the patient receives the benefit of the physician's attention when unconscious from an accidental injury, or under any circumstances where the patient 's condition is such that he cannot himself request the services of a physician, then a promise is implied by law that the person so at- tended will pay only reasonable compensation for such services (Sceva v. True, 53 N. H., 627; Cot- nam v. Wisdom, 83 Ark., 601). Suits for compensation often grow out of a dis- pute over the amount claimed for services. Re- sistance may be offered on the ground that the services were intended to be and were gratuitous. In a Mississippi case (Hardenstein v. Brien, 50 S. R., 979) a physician sued the administrator of the estate of a Mrs. Harper, deceased. One wit- ness testified that Mrs. Harper said that she had paid the physician nothing for services for about sixteen or eighteen years previously, but that in the last illness, running over many months, he had come to see her so often by day and night, any hour in the night he was sent for, that he must be paid for this ; that the obligation was too great to be passed over. Another witness testified that one day she said to him that she wanted to pay him something for his services, as he had been good and kind to her, and said to him: *^Make out a bill for me, Doctor, "to which he answered : * ^ Oh, no, Mrs. Harper; I cannot make out a bill; I don't want to, because you are the widow of a physician, and I won't think of doing such a thing." Referring to 86 The Doctor in Court it again, she said : * ^ Have you made out that bill ? ' ' and he said : ^ ' No ; I have not made out any bill. ' ' Then she said : ^ ^ I want the thing settled right now ; have you made out any bill!" To that he an- swered : ^ ' No ; I told you I was not going to make out any bill," and she said: ^'I want to give you something; will a thousand dollars do!" His re- ply was : ^^I would not think of asking that much." Again she said : ^ ' How will $500 do ! " and he said : '^All right, I will take that." The court held this constituted a distinct contract, supported by a val- uable consideration, viz., the services in the last illness, and that the physician should have been permitted to recover the $500 on the testimony. With regard to this matter of gratuitous ser- vices, the court of North Carolina (Prince v. Mc- Eae, 84 N. C, 674) has this to say: ^^ Whether the plaintiff's services shall be deemed a gratuity or constitute a claim for compensation, must be deter- mined by the common understanding of both par- ties. If they were intended to be and were ac- cepted as a gift or act of benevolence, they cannot at the election of the plaintiff create a legal obliga- tion to pay." Testimony from an expert as to the value of services is admissible in evidence (McKnight v. Detroit, &c., E. Co., 135 Mich., 307), as there is no presumption of law with regard to such value (Wood V. Barker, 49 Mich., 295; 13 N. W., 597). It is manifest that a jury would have difficulty in ascertaining their value without evidence from per- Remuneeation 87 sons knowing something about the matter, and it seems that a jury has no right in a case where the evidence as to the appropriateness of the physi- cian's remuneration is not disputed to reduce it upon their unsupported belief that the treatment should have been different (Wood v. Barker, 49 Mich., 295 ; 13 K W., 597). The value to be proved is the ordinary and reasonable figure for services of that nature (Styles v. Tyler, 64 Conn., 432). The criterion of worth is not the physical benefit the pa- tient receives (Cotnam v. Wisdom, 83 Ark., 601). A contract with a physician to pay from $200 to $400 for an operation was held to be valid and bind the parties to the contract for $200, and upon proof of the value of the services to the full extent of the contract — $400. A great number of cases upon this subject of compensation involve the question of liability of persons other than the patient for the physician's services. Each case must be judged on its own facts just as any contract case. In order to hold a third person liable for medical attendance to another an express or implied promise to pay there- for must be shown by the physician (Crane v. Baudouine, 55 K Y., 256). In other words in those cases where one is under no legal obligation to pay for medical services rendered another person, the physician cannot hold him responsible where there is no promise to pay relied upon by the phy- sician (Dorion v. Jacobson, 113 111. App., 564). Most of these cases have grown out of a dispute as 88 The Doctor in Court to whether or not there has been an implied em- ployment. The antecedent acts of the parties de- termines their obligations. A certain set of cir- cumstances will give rise to certain liabilities if unaccompanied by express stipulations explaining such circumstances, and the law, if it establishes a contract by implication from these circumstances, then proceeds as if the persons had contracted by formal words. The whole matter is largely one of construction and interpretation of contracts. Let us take a few illustrative cases. It was de- cided that where a steamboat captain brought a patient to a physician's office, asked the physician to treat the patient, and then left, that the physician could recover his fee from the captain (Berry v. Pusey, 80 Ky., 166) ; and where a person tele- graphed to an infirmary, ^'I have just learned of L 's accident. Show him every consideration and I will pay expenses, ' ' the court held that the sender of the telegram would have to pay, inasmuch as an outside physician had been secured pursuant to the request in the telegram (White v. Mastin, 38 Ala., 147). But where a hotel keeper at a resort telegraphed a friend, *' There are many cases of yellow fever at the Well, send out a physician, without fail, this evening," and the friend showed the telegram to a physician asking him to go, which he did, it was held that this telegram did not constitute a promise to pay the johysician and he could not therefore re- Eemunekation 89 cover for his services from the sender of the mes- sage (Williams v. Brickell, 37 Miss., 682). In a Colorado case a young man of 25 was quite seriously injured while at a distance from his fam- ily. He was without means and was cared for at a hospital operated by the plaintiff, a physician. The defendant, a sister of injured, wrote the phy- sician concerning her brother's condition and re- quested that she be kept informed just how he was doing. She said : ^ ^ And we will gladly pay all expenses. . . . All of his expenses will be paid later on and we want him to have everything to make him more comfortable, ' ' etc. The court held that this was an original promise on the part of the sister to pay for the services from the date of the letter on, and her authorization of such services rendered her liable (Hall v. Allen, 104 Pac. Eep., 489). Naturally a third person could not be held liable for medical expenses when acting for another merely as a messenger or in an emergency (Mad- den V. Blain, 66 Ga., 49). The court of Georgia put the stamp of approval upon this rule of law in the following words: "When one summoning a phy- sician to care for another, rendered by sudden ill- ness unable to act for himself, and to whom he stands in no relationship which creates no obliga- tion to furnish necessary medical care, and no ex- press undertaking is entered into, then from the mere summoning of the physician and requesting 90 The Doctor in Court Mm to care for the person who is ill, the law does not presume an implied promise by the one so act- ing to pay for the services of the physician sum- moned'' (Norton v. Eourke, 130 Ga., 600; 61 S. E., 478; 18 L. R. A. (N. S.), 173; see, also, Jes^ serich v. Walmif, 51 Mo. App., 270; Starrett v. Miley, 79 111 App., 658; Smith v. Watson, 14 Yt., 332). A rule the reverse of this would obviously be unjust. For as Judge Thompson said in Messen- bach V. Southern Cooperage Co. (45 Mo. App., 232), ^^When a person is dangerously wounded and perhaps unable to speak for himself, or suif ering so much that he does not know how to do it, any per- son will run to the nearest surgeon in the per- formance of an ordinary office of humanity. If it were the law that the person so going for the surgeon thereby undertakes to become personally responsible for the surgeon's bill, and especially for the surgeon's bill through the long subsequent course of treatment, many would hesitate to per- form this office, and in the meantime the sufferer might die for the want of the necessary immediate attention. Nor is there a common and fair under- standing that the person making the request, or ordering it to be made in behalf of the sufferer, under the circumstances, assumes responsibility for the surgeon's bill." A legal obligation may, however, exist between the patient and some third person whereby the BEMUNERATIOlSr 91 latter becomes responsible for the medical expenses of the former. Thus a father is chargeable with the care, maintenance, and support of his minor child (Rowe V. Raper, 23 Ind. App., 27), which includes necessary medical attendance (Best v. McAnslan, 27 R. I., 107), though in Holmes v. McKim (109 la., 245; 80 K W., 329) it was said: ^^One is not under any implied obligation to pay for the services of a physician called to attend a minor living with his family and supported by him, but not otherwise related to him, though he acquiesced in the at- tendance and had on a former occasion paid the same doctor for attending the same minor, the phy- sician knowing, however, the true relations of the defendant and said child.'' It has also been held that a man is not bound to pay a physician for attending his mother-in-law simply because he was present when the services were performed (Madden v. Blain, 66 Ga., 49). A request by a father to a physician to visit his son who was of age, but ill at the father's house, raised no implied promise that the father would pay for such attendance (Boyd v. Sappington, 4 Watts (Pa.), 247). If the relationship is not sufficient in itself to establish responsibility of the third party, the facts of the case must show an actual employment by the third person (Keams v. Caldwell, 7 Ky., 449). Thus where an employer merely summoned a doc- tor to attend an employee suddenly taken ill while 92 The Doctor iit Court in the line of his employment, the employee being unable to act for himself, the employer would not be liable for the physician's services if there was no express stipulation between the employer and employee that he should furnish such care (Norton V. Rourke, 130 Ga., 600; 61 S, E., 478; 18 L. R. A. (N. S.), 173). Where a woman wounded and bleeding rushed into a man's house to whom she was a stranger and fell unconscious there, and the man called in a physician and told him to care for her, it was held that in the absence of an express promise by the man to pay for the services of the physician he was not liable therefor, even though it appeared that she had been carried to a room in the house. We have seen in the chapter on the civil re- sponsibility of the profession that a patient can recover damages against a physician only once for the same act of malpractice. In other words, where the question of negligent or unskilful conduct of the physician has been raised between the parties, it cannot again be made the subject of legal contro- versy between them. As has been observed, mal- practice is generally a good defence to an action for compensation, and it is therefore only natural that the law should say when such a defence is inter- posed that the question of malpractice has been in issue and cannot again be brought before the court to be decided. So where a physician brings suit for the value of his services and upon trial the case Kemunekation 9S is favorably decided for the physician, the patient is precluded from afterward bringing suit for negligence or malpractice occurring at the time of the services for which the physician sues. The object of this rule of law is to prevent circuity of action and multiplicity of suits. A nice question has been raised in cases where the patient in a suit for compensation is defaulted or does not defend himself in court. The decisions of the various States do not agree as to whether a case won in this manner by the physician will bar the patient from subsequently suing the physician for negligence and malpractice. The question of compensation for services as an expert witness in court has been a much talked of subject. The disrepute into which medical ex- pert testimony has unfortunately fallen has led sev- eral States to put on their statute books enactments regulating the amount of pay an expert shall re- ceive for giving testimony. This has been done to prevent the payment of large fees to experts, which has been a potent factor in creating the im- pression in the public mind that the opinions of experts are bought and sold in the market like any commodity. Of course, the amount of compensa- tion of the common witness is easily ascertainable. Some of the statutes relating to the expert provide that he shall receive only what the ordinary wit- ness is entitled to, while others make provision for 94 The Doctoe in Court extra remuneration in a reasonable amount. The question has been raised many times as to whether or not a physician can be summoned into court and compelled to testify as an expert without additional pay. The argument has been advanced that the knowledge and experience possessed by a physician is peculiarly his own, and he cannot therefore be compelled to testify as an expert against his will^ but the trend of the decisions seems to be in the other direction and toward the view that he can be made to give his opinion without special pay other than that given the ordinary witness. The law governing disputes over compensation is the same applicable to all contract cases, and a surfeit of adjudicated cases might be given to substantiate and illuminate the various phases of the subject here touched upon. This, however, is unnecessary. It is best for the member of the pro- fession to refrain from resorting to the courts for their pay, for a doctor's practice may be sensibly hurt by the employment of such drastic measures, especially in the smaller cities and towns where the good will of all is invaluable. If, however, it is expedient and advisable to bring suit, the medical man should first make sure that the debtor can satisfy the judgment in event of recovery. This subject of compensation causes one of the pro- fession to attend the usage of Chinese physicians and speculate on its delightful possibilities. In that republic it is customary for a man to pay his Eemuneeatioit 95 physician so long as he enjoys good health, but let him become ill and he ceases to compensate the doctor. (Further authorities: Vol. 39, American Digest (Century Edition), title, Physicians and Surgeons, §§ 50-62; Vol. 30, Cyclopaedia of Law and Procedure, pp. 1592-1604,- Vol. 22, American and English Encyclopaedia of Law, pp. 789-798.) - CHAPTER V CONFIDENTIAL COMMUNICATIONS The procedure of our courts in civil and crim- inal cases is in its nature litigious, not inquisi- torial : a controversy rather than an investigation. From a time very remote from our own, certain matters have by law been hidden from the gaze and scrutiny of the courts, and persons called to testify cannot be made to answer questions relating to these sacred matters. This seal of silence placed on the lips of witnesses is justified on the grounds of public policy. The interests of the community demand that the state and the individual shall be hedged with safeguards against the disclosure and publication in court of confidential communications between heads of departments of the government regarding secrets of state, and of proceedings of the judiciary. The same cloak is thrown around communications of a professional nature, as those of an attorney and his client, and confidences be- tween husband and wife are likewise protected. This privilege does not extend to physicians and surgeons under the common law, and they could reveal all information secured from their patients 96 Confidential Communications 97 regardless of the effect of such disclosure on the patient ; in fact, physicians and surgeons were com- pelled to answer questions regarding these hidden matters if called upon in court to do so. In the Duchess of Kingston's trial, a late 18th century case (20 How. St. Tr., 573), Lord Mansfield said a surgeon has no privilege, and ^4f a surgeon was voluntarily to reveal these secrets, to be sure^ he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him any indiscretion whatever. ' ' Many of the States, however, have passed statutes prohibiting physicians from disclosing in- formation received from their patients in their professional capacity, upon the ground that such privilege enables a patient without risk of ex- posure to disclose to his physician all information essential to a proper treatment of the case. With- out such protection men would, perhaps, be obliged to sutfer injuries without alleviation from the art of medicine and surgery. As in the case of an attorney and his client, a knowledge of all the facts is necessary in order to pursue the course of action best suited to assist the patient in his trouble, and the purpose of such statutes is to invite this con- fidence and to prevent a breach of that trust. The following States have acted upon this sup- posed necessity and have passed laws giving pro- fessional communications between physicians and 98 The Doctoe in- Cotjet their patients immunity from disclosure : Arizona, Arkansas, California, Colorado, District of Colum- bia, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nevada, New York, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Washington, West Virginia, Wisconsin, and Wyoming. Mr. Justice Miller, in speaking of the New York statute, said: ^^It is a just and reasonable enactment, introduced to give protection to those who were in charge of physicians from the secrets disclosed to enable them to properly prescribe for diseases of the patient. To open the door to the disclosure of secrets revealed on the sick bed, or when consulting a physician, would destroy con- fidence between the physician and the patient, and, it is easy to see, might tend very much to prevent the advantages and benefits which flow from this confidential relationship" (Edington v. Mutual Life Ins. Co., 67 N. Y., 185). In order that the privilege may be successfully claimed in court, it must appear that the relation- ship of physician and patient existed at the time the information was given to the physician (Nesbit V. People, 19 Colo., 441; Clark v. State, 8 Kan. App., 782), though this relationship may exist even in cases where the employment of the physician is by some third party. That is to say, the privilege does not depend on compensation (Smart v. Kansas City, 208 Mo., 162; 144 L. R. A. (N. S.), 565; Confidential Communications 99 Colorado Fuel and Iron Co. v. Ciimmings, 8 Colo. App., 542; Renihan v. Dennin, 103 N. Y., 573; Myer v. Supreme Lodge, 178 N. Y., 63 ; 664 L. R. A., 839). So it was held where one was being tried for murder and the defence was insanity, the jail physician could not answer questions based on a knowledge of the accused obtained while under his observation in jail (People v. Schuyler, 106 IST. Y., 298) . It is immaterial whether or not the patient is a charitable patient at a hospital or in a private house ; the statute may be invoked by him just the same ( Smart v. Kansas City, supra) . A partner or physician called in consultation cannot reveal com- munications he has had brought to his notice (Reni- han V. Dennin, 103 N. Y., 573; Raymond v. Bur- lington Ry. Co., 65 la., 152). Where a physician examines a patient merely for information, and there is no misunderstanding as to the purpose of the examination, then the in- formation so acquired is not held to be confidential in the sense that it cannot be revealed by the doc- tor in court (Nesbit v. People, 19 Colo., 441). Thus, in Clark v. State (8 Kan. App., 782), the defendant was charged with being the father of an unborn illegitimate child of the complaining witness, who testified that she first had intercourse with the de- fendant Clark July 15, which he denied, saying that it took place August 3. He doubted the chas- tity of the woman and the paternity of the child. It was suggested she be examined by a physician of standing and if such inspection showed her 100 The Doctok in Couet pregnancy to be of no greater duration than four months, he would consider himself the author of the girl's trouble and marry her. This was as- sented to. The examination showed her pregnancy to be of six months' duration. Dr. P., who made the examination, was a witness at the trial but was not allowed to give evidence that at the time of the examination the girl made the statement to him that the first connection was August 3. This evidence was excluded as being confidential under the statute. The upper court held otherwise, saying, '^Dr. P. was not present as the jDhysician of the com- plaining witness ; she was not his patient ; the ex- amination was not made for the purpose of treating her for any physical or supposed physical distress. She agreed and submitted to the examination for the sole purpose of satisfying the plaintiff in error as to whether he was the father of the child. She knew that the result of the examination was to be made known to her parents and to the plaintiff in error, before she submitted to it. Under such circumstances, statements made by her to the phy- sician during the examination as to the time when the first connection took place cannot be regarded as confidential." (See, also. People v. Cole, 113 Mich., 83.) If, however, a physician after examining a pa- tient for information only, advises or treats the person examined, the relationship of physician and patient is thereby created and the physician will CONFIDEI^TTIAL CoMMUKICATIONS 101 be precluded from disclosing the information ob- tained (Weitz V. R. R. Co., 53 Mo. App., 39). One who seeks the protection of the statute must, generally speaking, be a physician or surgeon or duly licensed practitioner following a recog- nized school of good repute. A dentist is not in- cluded in this definition of persons who may claim the privilege (People v. De France, 104 Mich., 563 ; 28 L. R. A., 139). Many of the statutes limit the confidence sought to be protected to information necessary for the physician to prescribe for the patient or act in his professional capacity. The word ^^ necessary" must not be taken in a restricted sense, so as to allow evidence of statements honestly elicited by questions or voluntarily given for purposes of as- sisting the physician to properly treat the case, even though it is manifest that the disease or injury could have been diagnosticated and treated without all of such information (Renihan v. Dennin, 103 N. Y., 573; Sloan v. N. Y. C. R. Co., 45 N. Y., 125; In re will of Bruendl, 102 Wis., 45). The same is also true of the word ^ ^ prescribe, ' ' which must not be limited merely to the meaning ^' write a pre- scription,'' but must be taken to mean remedy or alleviate the disease or injury (In re Will of Bruendl, 102 Wis., 45). The information considered confidential may be acquired by the physician from the patient not only by verbal communications between them, but by examination or by looking at the patient. It may 102 The Doctor in Court come from statements of other persons present, from audible signs, by touching the patient, or by writing. The ISTew York Court said of this feature of the statute: *'When it speaks of information, it means not only communications received from the lips of the patient, but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the time, or from observation of his appearance and symptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute" (Ed- ington V. Mutual Life Ins. Co:, 67 N. Y., 185). The presumption is that such information was given for the purpose of treating the patient. The provisions of many of the statutes, that information is confidential only when it is essential to enable the physician to act in his professional capacity, have provoked a disagreement among the courts. Some maintain that only such informa- tion as manifestly applies to the exigencies of the case comes within the provision of the enactments. On the other hand, there are courts which interpret the statute in a broader way, protecting all com- munications which the physician receives as such. **The legislature," said the court of Wisconsin (Boyle V. Northwestern Mutual Relief Asso., 95 "Wis., 312), ^'has decided wisely that public policy Confidential Commukications 103 requires such measure of restriction upon tlie free- dom of the physician to testify or of others to demand testimony. But as it rested with the legis- lature to discover the necessity for, and to effec- tively impose, such restrictions, which are in dero- gation of the common law, it is for the courts only to enforce such as have heen imposed and not others which the legislature has omitted. The seal placed on the lips of the physician only relates to infor- mation necessary to enahle him to prescribe for such patient as a physician.' The tendency of all courts has been and should be toward liberal con- struction of these words to effectuate the purpose of the statute." There is a large number of cases in the books where a patient who has met with an accidental injury makes damaging statements to the physician as to the cause of such injury. Where such state- ments are obtained by the physician for the purpose of forming a correct opinion as to the injury and thereby being enabled to efficaciously and safely treat the patient, then admissions of this descrip- tion are, as we have seen, regarded as confidential and are accordingly protected by the statute. In certain instances the courts have carried this doc- trine still further, holding that a physician will not be permitted to abuse the professional relation- ship by securing statements from the patient against the patient's interest for subsequent use against him. In a certain case a physician, while assisting 104 The Doctor in Coukt in dressing the injuries of a man who had been hurt in a raih^oad accident, engaged him in con- versation, during which the injured person in reply to a question as to how the accident occurred, made a damaging admission. The court held that the doctor could not disclose this information on the witness stand, and thus expressed himself: * ' The physician had no business to interrogate his patient for any purpose or object other than to ascertain the nature and extent of the injury, and to gain such other information as was necessary to enable him to properly treat the injury and accomplish the object for which he was called professionally, and such communications are priv- ileged and he cannot disclose them. If the phy- sician took advantage of the fact of being called professionally, and while there in that capacity made inquiries of the injured party concerning matters in which he had no interest or concern professionally, or for the purpose of qualifying himself as a witness, he cannot be permitted to disclose the information received" (Penn Co. v. Marion, 123 Ind., 419). It must be remembered that the object of the statutes is not to smother the truth, and the courts therefore deem it their right to know something of the attending circumstances under which the communication was made (Edington v. ^tna Life Ins. Co., 77 N. Y., 564). While the privilege is created for the patient 's benefit alone ( Springer v. Byram, 137 Ind., 15), nevertheless he has the right COKFIDEFTIAL COMMUNICATIONS 105 to waive the protection offered him by the statute (Morris v. Morris, 119 Ind., 341), and this right does not rest upon any statutory provision author- izmg" him to do so (Boyle v. Northwestern Mut. Belief Asso., 95 Wis., 312). If a patient sues his physician for negligence or malpractice, or if he has the physician give evi- dence in his behalf, it is patent that either course of action would constitute a waiver. The privilege being a personal one, it must be claimed by the patient or his representatives before evidence of the communication which it is desired to protect is admitted (Briesenmeister v. Supreme Lodge Knights of Pythias, 81 Mich., 525; Heuston v. Simpson, 115 Ind., 62). The beneficiary or assignee of a beneficiary under a life insurance policy on the patient's life may claim the privilege (Briesenmeister v. Su- preme Lodge, 81 Mich., 525). The statute does not prevent a physician from testifying that he prescribed for the deceased, but a prescription for the patient or the drugs con- tained therein could not be put in evidence (Nel- son v. Nederland Life Ins. Co., 110 la., 600), nor could the account books of the physician be ex- amined if they held confidential and privileged knowledge concerning the patient (Mott v. Ice Co., 2 Abb. N. C. 143). It has been held, however, that a physician can testify to the number of visits he paid his patient as family physician and the dates thereof (Briesenmeister v. Supreme Lodge, supra). lOG The Doctor in Court Information imparted to a physician with an illegal purpose in view, as the performance of a criminal operation, would not, of course, come within the policy of the statute. But in a breach of promise suit where the defendant called a phy- sician as witness and asked him if at a certain time prior to the trial the plaintiff had consulted him with regard to ridding herself of a child she was then pregnant with, it was held that such com- munication was privileged and could not be dis- closed. For, procuring an abortion may be lawful and justified if necessary to save the mother's life (Guptill V. Verback, 58 la., 98). It may be said in summing up that under most of the statutes the essential elements of a privileged or confidential communication are: (a) The rela- tionship of physician and patient; (b) informa- tion acquired during the existence of this relation- ship; and (c) the propriety and necessity of the information so acquired to enable the physician to skilfully treat the patient professionally. These statutes being in derogation of the common law oftentimes through their operation exclude the best evidence. It must not be supposed that they are intended to prevent the physician from testifying to all communications passing between himself and his patient. The purpose and object of all trials is to bring to light the true facts of the case, and the scope of the statutes cannot be enlarged to in- clude matters not clearly within their policy, as the ends of justice would be thwarted and the beneficial Confidential Communications 107 purpose of the statutes defeated. It is upon tMs question that the courts dealing with enactments not dissimilar from each other clash. An extended examination of the various acts and the host of decisions they have given rise to has not been made here. If the physician is called upon in court to reveal a communication of a con- fidential nature, it is always best for him to ask if it is necessary for him to do so, as the relation of physician and patient should always be regarded by the members of the profession as one of trust and confidence. "CHAPTER VI THE CKIMINAL KESPONSIBILITY OF THE PKOEESSIOK Thus far we have been concerned only with the civil rights and obligations of physicians and sur- geons. The state is neutral in its attitude toward many wrongful acts which are of a private char- acter in the injury they cause. This is the case with the civil wrongs which we have been consider- ing. Yet where an injury is '^so atrocious in its nature, or so dangerous in its example, that, be- sides the loss it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the public'' (3 Wil- son, 4), it is said to be a crime, and the government then steps in and punishes such wrong by a criminal proceeding in its own name. We have seen that in civil suits for damages the malice or intent of the wrongdoer does not have to be proved. The rule of the criminal law is different. Legal guilt has to do with the animus or mind of the wrongdoer. To be guilty of a crime, one must have had an intent coupled with a wrong- ful act and capacity to commit that act. The re- lationship between intent and capacity is very 108 Ceiminal Eespon"sibility 109 close, for a person by reason of physical or men- tal incompetency may be presumed to be incapable of entertaining a criminal intent. This is the theory of the insanity defence; that is, one who is found to be legally insane is deemed incapable of enter- taining a criminal intent and is therefore not re- sponsible for committing a crime. The guilty mind or criminal purpose may be implied from the crim- inal act. It is an antique maxim that ignorance of the law excuses no man, and consequently it is not necessary that the person committing the wrong- ful act should be aware that it was forbidden. In other words, from the mere doing of the prohibited act the intent will be supposed. The compliment which our law pays a man ac- cused of crime of presuming him to be innocent until the contrary has been proved beyond all rea- sonable doubt is so well known as to hardly bear repeating. The individual is likewise protected from being compelled to give incriminating evi- dence, the law recognizing the unsoundness of such testimony. In fine, the law hedges the individual with an elaborate system of outworks to guard his personal liberty and prevent the possibility of an innocent person suffering punishment for a crime. Happily the number of cases in the books in which physicians and surgeons have come afoul the crimi- nal law are comparatively few in number. Their absence is significant. There are, however, in all walks of life corrupt and dishonest persons, and it is with few exceptions their cases which have re- 110 The Doctor in Court ceived the attention of the courts in criminal pro- ceedings. Now far and away the greater number of cases in which physicians and surgeons have been charged with crime are jDrosecutions for the per- formance of criminal abortions. Let ns first then consider the crime of abortion. Abortion may be legally defined as the expulsion of the foetus by artificial means at any time during the period of gestation. The law does not make the distinction as in medicine where an abortion is generally taken to mean the destruction of the life of the foetus during the first six months of pregnancy. The crime of abortion must not be confused with that of infanticide, which is the killing of a child after it has been bom. To procure the premature delivery of a preg- nant woman by artificial means may be justifiable or criminal. If there are reasonable grounds for believing the mother's life will be forfeited if an abortion is not i^erformed, then there is legal jus- tification for such a course of action. It is, how- ever, best for a physician to obtain a concurring oioinion from another physician of good standing to substantiate his own belief in such necessity. Spe- cial provision is made for this by the statutes of some States. The consent of the patient must, of course, be secured before proceeding with the oper- ation, or, as we have seen, the physician will be answerable in damages (Civil Eesponsibihty of the Profession) . Cbiminax. Responsibility 111 Under the old common law one wIlo attempted to procure an abortion with the mother's consent was deemed unindictable for such act unless the mother was *^ quick with child'' at the time when the abortion was attempted or in fact accom- plished. Save with regard to certain civil rights the child was not considered in esse or to have an independent existence until it had quickened in its mother's womb (1 Bl. Comm., 129). Blackstone said: ^'Life begins, in contempla- tion of law, as soon as an infant is able to stir in its mother's womb." So at common law if the mother or a physician prior to the time of quick- ening attempted to or actually did destroy the life of the foetus by the use of drugs or by external or internal violence, tbey were only guilty of a misdemeanor. If, however, the physician brought about premature action of the organs through the agency of drugs or instruments or otherwise, with- out the consent of the mother and before she had become quick with child, the physician was guilty of an assault and battery. But the consent of the mother would be no defence if she died as a result of such acts. Said Chief Justice Shaw in Commonwealth v. Parker (9 Mete. (Mass.), 263) : ^'The use of vio- lence upon a woman, with an intent to procure a miscarriage, without her consent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt by drugs or instruments, the 112 The Doctor in" Court death of the mother ensues, the party making such an attempt, with or without the consent of the woman, is guilt^^ of the murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of mahce, any more than in the case of a duel, where, in like manner, there is consent of the parties.'^ Lord Hale speaking more than two centuries ago laid down the law in these words : ' ' If a woman be with child and any gives her a potion to de- stroy the child within her, and she takes it and it works so strongly that it kills her, this is murder ; for it was not to cure her of disease, but unlawfully to destroy the child within her; and therefore he who gives a potion to this end, must take the haz- ard, and if it kills the mother it is murder" (1 Hale P. C, 429). It is not necessary that the agency employed to procure an abortion should be capable of accomplishing it (Dougherty v. Peo- ple, 1 Colorado, 514). Consent is not a justifica- tion that would avail one as a defence in court (Commonwealth v. Snow, 116 Mass., 47), and to say that the act was prompted by a desire to shield a woman's shame would not vindicate the wrong- doer (Commonwealth v. Wood, 11 Gray, 85). The common law rule distinguishing between a woman quick with child and one who is pregnant but has not reached the quickening stage was also law in this country until supplanted by statute (Com^monwealth v. Bangs, 9 Mass., 387; Common- Ceiminal Eesponsibility 113 wealth V. Parker, 9 Metcalf (Mass.), 263; State v. Cooper, 22 N. J. L., 52 ; Mitchell v. Commonwealth, 78 Ky., 204). Under the common law the test as to the time at which a woman became ^^qnick" seems to have been whether or not she herself felt the child within her (Eex v. Phillips, 3 Camb., 73), though it would also involve a question of medical jurisprudence to be determined by other evidence. Yet all this difference between one who is quick with child and one who is not, has been generally done away with by statute, it now being considered equally wrongful to procure or attempt to procure the abortion of a woman whether she be in an early or advanced stage of pregnancy. This was ap- parently first remedied by a statute passed in the reign of King George III, which took cognizance of the common law distinction and made it a felony to cause the miscarriage of a woman not quick with child. The Massachusetts statute covering this crime is illustrative of the type of enactment in force very generally throughout the country. It reads as follows : '* Whoever, with intent to procure the miscarriage of a woman, unlawfully admin- isters to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her, or with the like intent, unlawfully uses any in- strument or other means whatever, or with 114 The Doctok in Court like intent, aids or assists therein, shall, if she dies in consequence thereof, be punished by imprisonment in the state prison for not less than five nor more than twenty years ; and, if she does not die in consequence there- of, by imprisonment in the state prison not more than seven years and by a fine of not more than two thousand dollars.'' (Revised Laws, Chapter 212, Section 15.) In preceding chapters we have seen that by the employment of a physician and his undertaking to treat a case certain duties and legal obligations are imposed upon him, which he must faithfully dis- charge or respond in damages to the patient. The physician is required to bring to his employment reasonable skill and cannot be negligent in his at- tention to or treatment of the patient. Let us sup- pose, as occasionally happens, that the death of the patient ensues. Would a want of skill and care on the physician's part render him criminally re- sponsible ? Now an act which causes the death of a human being may be murder, manslaughter, or misadven- ture, according to the circumstances. Where it appears the killing was with malice aforethought, it is murder; where there is no premeditation or malice it is manslaughter. Manslaughter may be voluntary where the killing is done in heat of blood, or it may be involuntary by negligently performing a legal duty or negligently omitting to discharge Crimiital Eesponsibility 115 such an obligation. If death results while one is committing an unlawful act, such as procuring the miscarriage of a woman, that also would be man- slaughter. 2_ ^^